1997 PLP 1595 (SCMR)

RAJA AFRASIAB KHAN, J.‑‑‑On 13th of February, 1990 at 2.00 p.m., a case under section 302/307, P.P.C., was registered with Police Station Saddar Kamalia District Toba Tek Singh on the statement of Sher Muhammad against Muhammad Jamal and Muhammad Shahban for the murder of Mst. Nagina and making an attempt to kill Mazhar Iqbal. On the day of occurrence, early in the morning, the complainant, Sher Muhammad was present in his village Jhaluka near River Ravi. Mazhar Iqbal aged about six years told the complainant that during the preceding night, Muhammad Jamal and Alam Sher brought him and his younger sister, Mst. Nagina (aged three years) from their house on bicycle. They were thrown in the river. Mst. Nagina was drowned in the water and died on the spot. He (Mazhar Iqbal), however, narrowly escaped death as he was able to reach the bank of the river through his efforts. The accused ran away from the spot. Dead body of Mst. Nagina was found while floating in the water. It was taken out of the water. Ehsan‑ul‑Haq P.W. 1, Mazhar Iqbal P.W.2, Dr. Iftikhar Hussain P.W.3, Asghar Ali P.W.4, Faiz Muhammad P.W.5. Manzoor Ahmad P.W.6, Muhammad Ramzan P.W.7, Ghulam Muhammad P.W.8, Haq Nawaz P.W.9, Talib Ali P.W.10, Sher Muhammad P.W.11, Muhammad Nawaz P.W.12, Muhammad Ashgar P.W. 13 and Muhammad Aslam Niazi P.W. 14 were produced by the prosecution in support of its case. The accused denied the allegations levelled against them in their statement under section 342, Cr.P.C. Muhammad Shahban stated as follows:-- "As a matter of fact Muhammad Walayat deceased abducted Mst. Irshad Bibi niece of one Shah Muhammad Bodla resident of Kasur District. Walayat deceased had also abducted one Mst. Zubaida wife of Shah Muhammad. Muhammad Walayat deceased took them to Karachi. Shah Muhammad Bodla followed Muhammad Walayat to Karachi and had murdered both Muhammad Walayat and Irshad Bibi. Police Kamalia arrested Shah Muhammad Bodla and kept in lock‑up of Thana for 6/7 days. Prior to his arrest Shah Muhammad visited the accused 2/3 times. On seeing that real facts and the true story of its incident were being unveiled, the local police set Shah Muhammad Bodla and arrested the accused. So far as the murder by throwing into the river of Mst. Nagina deceased is concerned she was done away with by her step brothers and other step relations. The P.Ws. have been prepared by the local police. They are not known to the accused. The accused has been shown to the P.Ws. for identification purposes many a times in the Thana lock‑up as well as this Court. I am innocent." Similarly, Muhammad Jamal in his statement under section 342,. Cr.P.C. stated:‑‑ "At the time of registration of this case I was appearing in Matriculation examination and had appeared in some papers. I live in the village where Riaz Fatiana M.P.A. of the area owns land. I was student leader and opposed him in three consecutive general elections. In 1985 he lost election while Sardar Altaf Hussain succeeded as M.P.A. whom I supported. In 1988 he succeeded, as Sardar Altaf Hussain lost the election whom I supported. Riaz Fatiana was appointed as Advisor to Chief Minister Punjab. Taking advantage of his post he got me falsely involved in the case. I was detained at. the Dera of Riaz Fatiana and for some time at P.S. Saddar Kamalia. I produce date‑sheet and certificate from Deputy Headmaster, Government High School, Kamalia to prove that I was appearing in Matriculation Examination at the time of registration of this case. Those are Exh.DC and Exh.DD." An Additional Sessions Judge, Toba Tek Singh believed the prosecution story and vide his judgment, dated 29th of August, 1991 convicted the petitioners under section 302/307/34, P.P.C., and sentenced them to death plus fine of Rs.1,00,00 (rupees one lace) each or in default to undergo R.I. for 10 years each. They were sentenced to 10 years R.I. and fine of Rs.20,000 (rupees twenty thousand) each or in default to undergo R.I. for two years each under section 307/34, P.P.C. In case of realisation of fine, it was ordered to be paid as compensation to Mazhar Iqbal P.W. and his sister, Mst. Shahina. The convict, Muhammad Jamal challenged his conviction and sentence through Criminal Appeal No. 1026 of 1991 while Muhammad Shahban had filed Criminal Appeal No.88/J of 1991 through Jail. The learned Trial Judge sent Murder Reference No.388 of 1991 for confirmation of aforesaid death sentences. A Division Bench of the Lahore High Court vide its judgment, dated 17th of May, 1995 dismissed the appeals and confirmed the death sentences. Criminal Petition No.385‑L 1995 has been instituted by Muhammad Jamal while time‑barred Jail Petition No. 12 of 1996 has been sent by Muhammad Shahban. Both the petitions shall be disposed of together through this judgment.

2. Learned counsel submits that there is no evidence to justify the conviction of the petitioner inasmuch as prosecution has failed to prove any motive for the petitioner to commit the crime. He argues that prosecution evidence has been misread which has resulted into miscarriage of justice.

3. We have heard the learned counsel for the petitioner, Muhammad Jamal at some length and are unable to agree with him. Prosecution has succeeded beyond reasonable doubt to prove its case against the petitioners. Mazhar Iqbai P.W.2, a child witness has stated that the petitioners, Muhammad Jamal and Muliammad Shahban brought him and his sister, Mst. Nagina on a bicycle to the river. They were thrown by the accused in the river. Mst. Nagina drowned in the water because of her tender age while he saved himself by reaching the bank of the river. This witness inspires confidence and there are no earthly reasons not to accept his testimony. Dr. Iftikhar Hussain P. W.3 conducted the post mortem examination of dead body of Mst. Nagina and opined that her death occurred due to asphyxia as a result of drowning. His last seen evidence was provided by Muhammad Ramzan P.W.7, He saw Mst. Nagina (deceased) and Mazliar Iqbal being carried by the petitioners on their bicycle a day earlier to the occurrence. Muhammad Aslam, S.I. P.W.14 and Muhammad Ashraf, Inspector P.W.13 conducted the investigation. They found both the petitioners guilty of the charge of murder. There is, admittedly, no previous enmity between the petitioners and the complainant.

4. Upshot of the above discussion is that the prosecution has proved its case against both the petitioners beyond doubt. They have committed heinous crime and as such deserve no leniency at all. Even no case for grant of lesser punishment has been made out by the petitioner, Muhammad Jamal on ground of his age. He has himself shown to be aged 21 years in his statement under section 342, Cr.P.C. It is, of course, for the trial Court or the. appellate/revisional forums to assess the appropriate punishment which has to be awarded to an accused person. This Court shall surely be slow to interfere in such like controversy unless it is shown that the sentence has not been given in consonance with the principles laid down by this Court or it is illegal on the face of it. In case of Ghulam Muhammad v. The State (1972 SCMR 393), following observation was made by this Court:‑‑ "Finally, as regards the sentence, this is primarily a matter for the trial Court and the Courts acting in appeal or revision, and the Supreme Court would not ordinarily interfere by imposing its own assessment of the appropriate punishment, unless it be shown that the sentence is against law or otherwise not in accordance with sound judicial principles. These conditions are not present in the instant case." The above rule is respectfully followed in this case. Both the petitions are, accordingly, dismissed by refusing leave to appeal. N.H.Q./M‑23/S Leave refused.