2003 PLP 427 (SCMR)

Nemo for Respondents. Date of hearing: 10th July, 2002. KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑This petition under Article 185(3) of the Constitution filed by Muhammad Khan complainant calls in question a judgment dated 20‑11‑2001 passed by the Honourable Lahore High Court, in Criminal Appeal No.412 of 1996 and Murder Reference No. 194 of 1996 to the 'extent that it converted the sentence awarded to Muhammad Bashir convict into a punishment of imprisonment for life. This petition also prays for enhancement of the sentence of imprisonment for life awarded to Umer Daraz convict to a sentence of death.

2. Three real brothers namely Muhammad Bashir convict, Umer Daraz convict and Muhammad Aslam acquitted accused, were alleged to have committed the murder of one Sultan Mehmood and of having caused injuries on the persons of Nasar Hayat P.W.10, Khurshid P.W.12 and Muhammad Afzal P.W.13 at the instance of their maternal cousins namely Muhammad Amir and Muhammad accused who were acquitted by the learned Trial Judge.

3. Upon their conviction under section 302(b)/34, P.P.C. Muhammad Bashir, as has been noticed‑above, was inter alia awarded a sentence of death while Umer Daraz convict was directed to suffer imprisonment for life. The Honourable High Court maintained their conviction under section 302(b)/34, P.P:C. as also under section 337‑F(ii)/34, P.P.C. but reduced the sentence of death awarded to Bashir convict to a sentence of imprisonment for life.

4. This was done by the High Court on the ground that having alleged through the F. I. R. that a. dispute between the parties regarding WARA had been decided by a Civil Court in favour of the complainant party on account of which revenge/grievance the convict party had committed the crime in question, it was admitted by the P.Ws. at the trial that there was no decision of any Civil Court regarding the alleged dispute in question and that it was one Naib Tehsildar who had resolved the issue and that also orally and not in pursuance of any regular proceedings. It was thus held by the High Court that the motive alleged by the prosecution had not been proved and in fact it had come on record that there was some dispute between Bashir convict and Sultan deceased about the digging of a cement pipe which could have led to the occurrence in question. The Honourable High Court had been further influenced by the fact that the complainant party was not going on the regular path leading to their DERA and had taken an unusual route passing in front of the house of the accused party. It was also available on record that the occurrence in question had taken place in the fields of the accused party near their DERA. The learned Judges of the Division Bench in the High Court were thus justified in holding that in these circumstances, the genesis of the occurrence in question was not clear and it was not known as to what had actually happened at the spot and what had actually transpired between the parties immediately prior to the said occurrence.

5. Having examined the record in the light of the submissions made by the learned counsel for the complainant/petitioner, we find that the impugned view taken by the Honourable High Court could not be said to be whimsical or arbitrary nor could the same be said to be based on misreading or non- reading of the evidence available on record.

6. Consequently, we find no merit in this petition which is accordingly dismissed. Leave refused. N.H.Q./M‑638/5 . Leave refused.