2006 PLP 1489 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

At the very outset learned counsel for the petitioner submits that he would not challenge the conviction but only seeks leave to appeal against the judgment of the Lahore High Court, dated 7-7-2005, vide which it has maintained the sentence of death awarded to the petitioner for the double murder of Mst. Faheem Akhtar and Mst. Kishwar Bashir.

2. Learned counsel submits that the prosecution case right from the very beginning has been that five persons had attacked and caused the murder of the afore-referred ladies and injuries on Mst. Kiran. P.W.18 and Mst. Maria, P.W.19. He referred in particular to para.10 of the impugned judgment wherein according to him the Court has observed that five persons had committed the double murder. That being so he added that the petitioner could not be burdened with the entire liability as to warrant the sentence of death. He also referred to the statements of Mst. Kiran. P.W.18 and Mst. Maria, P.W.19 recorded under section 161, Cr.P.C. which was placed on record as (Exh.D.D. and Exh.D.H.) was that even these witnesses did not assign any specific role to the petitioner in the double murder.

3. We have heard the learned counsel and have gone through the impugned judgment as also the evidence on record.

4. The prosecution case as reflected in the F.I.R. registered on the complaint of Muhammad Aslam, Inspector P.W.20, briefly stated is that on having received information about the alleged occurrence when they reached the spot he found as under: "After hearing the message, he along with his officials proceeded to the house of Dr. Bashir Ahmad and when he reached at the corner of said street he saw five unknown persons armed with daggers and Chhuris, in the light of electric bulbs, running away from the house of Dr. Bashir Ahmed Khan through its main gate. On reaching the house of Dr. Bashir Ahmad he deputed Muhammad Anwar, S.-I. along with constables to pursue the said culprits and himself along with police officials entered the said house where he found the dead bodies of Mst. Faheem Akhtar wife of Dr. Bashir Ahmad, Mst. Kishwar Bashir lying in the courtyard. He also saw two minor girls namely Mst. Kiran and Mst. Maria lying at the short distance in injured condition. Some persons of the Mohallah also gathered there but no one from the family members of the deceased and the injured girls were present there." 4-A. It was during the investigation that five accused were arrested and sent for trial including two others. The trial Court acquitted four out of seven convicted three sentenced one (Siddique) to death and two (Nasir and Sajjad) to life imprisonment. In appeal the High Court acquitted Nasir and Sajjad but maintained the conviction and sentence of Siddique petitioner. Learned High Court having evaluated the evidence came to the conclusion that it was petitioner who caused the murder and that the other two convicts deserved the benefit of doubt. The acquittal of Nasir and Sajjad by the High Court is not arbitrary and the Court has given valid reasons for that which find mention in para.9 of the impugned judgment wherein the Court observed that Nasir and Sajjad appellants were not known to both the eye-witnesses namely Mst. Kiran P.W.18 and Mst. Maria P.W.19. The names of both the said appellants do not figure anywhere in the statements of these witnesses recorded under section 161, Cr.P.C. It is an admitted fact that after their arrest, none of these appellants was put to the test of identification parade and for the first time after three years of the occurrence these appellants were identified by the said witnesses before the trial Court. After such a long time the identification of the appellants in the Court is not free from the doubt because at the relevant time, ages of both the said eye-witnesses were 9 and 7 years only.

5. This finding of acquittal, therefore, would be of no help to the petitioner. Coming to the observation in para. 10 to which reference has been made by the petitioner's learned counsel, we note that the learned High Court did not find that five accused were responsible for the double murder rather made a brief reference to the prosecution case set up during trial. We have ourselves gone through the statement of P.W.18 and P.W.19 not only during trial but also before the police under section 161, Cr.P.C. (Exh.D.D. and DD.E) and find that so far as petitioner is concerned a specific role has been assigned to him. He was maternal-uncle of these two eye-witnesses. According to both these eye-witnesses they kept begging petitioner to forgive their mother and maternal-grandmother but their entreaties fell on the deaf ear.

6. In the afore-referred circumstances, we do not find any mitigating circumstance to warrant grant of lesser sentence. This petition having no merit is accordingly dismissed. Leave to appeal refused.

7. For the foregoing reasons referred to above Jail Petition No.298 of 2005 filed by the petitioner is also dismissed. N.H.Q./M-30/SC Leave refused.