2007 SCMR 1338 (PLP)

MIAN SHAKIRULLAH JAN, J.

The petitioner, through the instant jail petition has questioned validity and legality of the judgment of the Court below and the Lahore High Court, whereby the latter Court while maintaining conviction under section 302, P.P.C. and death sentence awarded to him by the trial Court, his appeal was dismissed.

2. The prosecution story as given in the impugned judgment which reads as under:-- "The prosecution's case unfolded in the F.I.R. was that Muhammad Rashid complainant was a resident of Chak No.172/GB Chhajowal situated within the area of Police Station Samundri, District Faisalabad and as an agriculturist by profession. The complainant had four sons one of which namely Azmat Ali was in the business of selling milk. At about 9-00 a.m. on 16-3-1998 Muhammad Rashid complainant along with Khalid Mehmood and the complainant's son namely Shaukat Ali were present near the village graveyard alongside a Pacca road going from Satiana to Tandlianwala when a bus arrived there from Faisalabad and stopped in front of them. The complainant's son namely Azmat Ali alighted from that bus, off-loaded his empty canisters of milk from the bus and was standing near those canisters when the bus left for Tandlianwala. In the meanwhile Shahid Ghafoor alias Shandda petitioner went past the complainant and the other witnesses and approached the said Azmat Ali. Upon reaching near Azmat Ali the petitioner took out a carbine from the fold of his trousers, put the barrel of the same on the right temple of Azmat Ali and fired at him. Upon receipt of that injury Azmat Ali fell down on the ground with his face downwards. The complainant and the other witnesses saw the said occurrence themselves and lunged forward while raising a Lalkara but upon seeing them approaching the petitioner ran away from the spot while brandishing his carbine. The complainant and the other witnesses then handled the injured Azmat Ali but he succumbed to his injury at the spot and died within their view. The motive set up in the F.I.R. was that Shahid Ghafoor petitioner was locked in litigation with the complainant party. According to the F.I.R. the petitioner had committed the murder of the complainant's son with the abetment of his father namely Abdul Ghafoor and his paternal-uncle namely Muhammad Anwar, leaving the dead body of his son at the spot Muhammad Rashid complainant proceeded to report the matter to the police and met a Police Officer on the way before whom he made a statement in respect of the above mentioned incident at about 10-00 a.m. On the basis of that statement of the complainant formal F.I.R. No.73 was subsequently registered at Police Station Samundri, District Faisalabad at 10-45 a.m. on 16-3-1998 for an offence under section 302, P.P.C. read with section 109, P.P.C."

3. The learned counsel for the petitioner has not questioned the conviction of the petitioner but he has confined his argument to the quantum of sentence. In support of his plea, for the reduction of sentence, he has contended that the petitioner has been charged only for solitary shot and there was no previous blood fued enmity but only a litigation between the parties and in view of the aforesaid reasons the petitioner was not liable to be awarded capital punishment. In this respect he has relied on judgment of this Court reported in Muhammad Arshad and 2 others v. State PLD 1996 SC 122.

4. On the other hand, the learned counsel appearing on behalf of the respondent/State has opposed submission of the learned counsel for the petitioner on the ground that the High Court has properly dealt with this aspect of the case by placing reliance on the judgment of this Court reported in Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427.

5. We have gone through judgments of the Courts below and also through the relevant evidence on the record of the case.

6. The ocular version has been furnished by Muhammad Rashid complainant (P.W.8) and Khalid Mehmood (P.W.9) in addition to the evidence of other witnesses produced by the prosecution. According to the finding of the learned High Court the deceased Azmat Ali was done to death in a brutal manner which fact is also having support of the medical evidence and relevant portion of the statement of Dr. Muhammad Ghafoor Zafar, Medical Officer (P.W.1) is reproduced as under: "There is a solitary injury on the scalp. The frontal portion of .the head, eyes with forehead were torn away. The edges of the wound were scattered all over the injury. The edges in adjacent area on right side of the head were burnt. The posterior and top of skull was intact. The edges of the wound were badly crushed. 'The diameter of empty skull which was torn away was about 10 c.m. right to left and 12 c.m. from anterior to posterior approximately." In his statement recorded under section 342, Cr.P.C. the petitioner has admitted his presence on the spot and also stated:-- "that on 16-3-1998 at about 8-00 a.m. I had gone to the place of occurrence to board a bus for going to Tandlianwala. The deceased also came there and pulled me after giving filthy abuses with reference to my sister and then the deceased took out a .12 bore carbine and aimed at me and I tried to deflect the hand of the deceased towards sky and in that process the shot went off accidentally and hit the deceased on his temple." The petitioner had taken a plea which is having no support from any evidence either from the defence or even by inference from the prosecution. The judgment referred to by the learned counsel for the petitioner is distinguishable as in that case the firing by the appellant at the deceased was preceded by a dialogue between the appellant and the deceased followed by a scuffle/grappling between the appellant and the deceased and the pelting of stones by the daughters of the deceased at the appellant who as a result some injuries. The learned High Court has correctly placed reliance on the judgment Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 (supra). The impugned judgment is well-reasoned and does not require interference. For the aforesaid reasons, we see no justification to interfere in the impugned judgment. Leave to appeal is refused and the petition is dismissed accordingly. M.H./S-68/SC Petition dismissed.