2002 PLP 1339 (SCMR)

TANVIR AHMED KHAN, J.‑‑‑Leave to appeal is sought against the judgment dated 20-12‑2001 whereby a learned Division Bench of the Lahore High Court, Lahore, dismissed Criminal Appeal No. 102/J .of 1996 filed by the present petitioner answering Murder Reference No. 261 of 1996 in the affirmative by confirming his death sentence. Criminal Appeal No.319 of 1997 filed by the State against the acquittal of accused Barkat, Babar and Binyamin was accepted and they were convicted under sections 302(b)/149, P.P.C. on two counts sentencing them to imprisonment for life under each count with a direction to pay an amount of Rs.25,000 each to the legal heirs of the deceased. They were also convicted and sentenced to five years' R.I. under sections 324/149, P.P.C. for causing injuries to MUn3War Hussain P.W. They were extended benefit of section 382‑B, Cr.P.C. It is pertinent to mention over here at the very outset that this petition has only been filed by Sarfraz petitioner and the other three convicts namely Barkat, Babar and Binyamin have not assailed their convictions and sentences recorded by the learned Division Bench of the Lahore High Court through the impugned judgment dated 20‑12‑2001. The facts briefly stated are that F.I.R. No.376 was lodged at 16‑6‑1992 at 2‑00 p.m. at Police Station Saddar, Gujranwala, under sections 302/324/148/149, P.P.C. at the instance of Muhammad Saeed (P.W. 6) for an occurrence stated to have taken place on the same day at 12‑30 noon for the murder of his two brothers namely Safdar, Javed and Muhammad Arshad and causing injuries to Munawar Hussain P.W. After usual investigation the challan was submitted against seven persons. The prosecution examined 14 witnesses to establish its case. The ocular account was narrated by Munawar Hussain, injured P.W. 5, and Muhammad Saeed (P.W. 6), the complainant, when the accused were. examined under section 342, Cr.P.C. Sarfraz, the present petitioner, totally denied his participation in the occurrence. However, his co‑accused Abdul took up the stance that the complainant party was the aggressor as both the deceased along with 20‑25 persons armed with lethal weapons came in front of their house and started firing. According to him he, with his licensed rifle in order to save his and the lives of other inmates of the house, fired at both the deceased who succumbed to their injuries. The learned .Additional Sessions Judge, Gujranwala, vide his judgment dated 15‑7‑1996 convicted the petitioner Sarfraz under section 302(b), P.P.C. and sentenced him to death as Tazir on two counts for committing Qatl‑i‑Amd of Safdar Javed and Muhammad Bashir. He acquitted the co‑accused Barkat, Babar and Binyamin from the charge,under section 302, P.P.C. and convicted all of them under section 337‑F(iii), P.P.C. and awarded each of them to pay a fine of Rs.5,000 as 'Daman' to Munawar Hussain, injured P. W. , and also to suffer simple imprisonment for three years in addition to 'Daman'. All the four accused were further convicted and sentenced to simple imprisonment for three years each under sections 148/149, P.P.C. The sentences were, ordered to run concurrently. Benefit of section 382‑B, Cr.P.C. was also grated to them. The petitioner Sarfraz filed Criminal Appeal No.102/J of 1996 in the Lahore High Court from Jail while the State preferred Criminal Appeal No,319 of 1997 against the acquittal of Barkar, Babac and Binyamin co?-accused from the charge under section 302, P.P.C. A learned Division Bench of the Lahore High Court, Lahore, after thrashing the entire evidence brought on record, dismissed the appeal filed by the petitioner while the appeal tiled by the State was accepted and co?-accused Barkat, Babar and Binyamin were sentenced to imprisonment for life under sections 302(b)/149, P.P.C: on two counts with a direction to pay an amount of Rs.25,000 each. All the four inclusive of the petitioner were also convicted under sections 324/149, P.RC. for causing injuries to Munawar Hussain and were ordered to suffer five years' R.I. arid to pay a fine of Rs.10,000 each and in default to undergo three months' R.I. As earlier stated it is the petitioner Sarfraz who has taken exception to the judgment of the learned Division Bench of the Lahore High Court through this petition while co‑convicts Barkat, Babar and Binyamin have not assailed their convictions and sentences recorded by the High Court. We have considered the contentions raised by the learned counsel for the petitioner and have gone through the documents appended with the petition with his assistance. We have noticed that in this case the prosecution examined 14 witnesses to establish the unfortunate incident wherein two real brothers of the complainant Muhammad Saeed were done to death in a brutal and callous manner. The F.I.R. of the present occurrence was recorded with promptitude as the incident had taken place at 12‑30 p.m. while F.I.R. was p, got registered at 2‑00 p.m. on the same day attributing specific roles to the assailants including the petitioner and 'their respective lethal weapons which they were carrying at the time of fateful incident. The ocular account has been stated in its material particulars by Munawar Hussain (P.W. 5) and Muhammad Saeed (P.W. 6). Munawar Hussain, injured witness, according to P.W. 10 Dr. Anwar Sajjad, Medical Officer, District Headquarters Hospital, Gujranwala, sustained six fire‑arm .injuries. The presence of said witness as well as of the complainant at the spot cannot be doubted in any manner. They were subjected to lengthy cross‑examination but the defence side,totally failed to shatter their testimony. We have also noticed that the learned trial Judge as well as the learned Judges of the Lahore High Court had considered the stance of the prosecution in juxtaposition with that of taken up by the defence. The story put up by the defence does not appeal to reason and the same is unnatural and improbable. It is astonishing to note that 20‑25 persons carrying lethal weapons with them arrived in front of the house of accused Abdul (P.O.) and resorted to indiscriminate firing but not a single person from the accused side sustained any injury. The incriminating gun (P‑11) was recovered from the petitioner Sarfraz and, according to the report of Forensic Science Laboratory (Exh.PAA), the same was wedded with the crime empties recovered from the place of occurrence. The medical evidence is also completely in line with the ocular version. Resultantly, taking stock of all the aforestated features of the case, we do not see any justification to interfere with the well‑reasoned judgment dated 20‑12‑2001 rendered by the learned Division Bench of the Lahore High Court. The present petition being without any merit is accordingly dismissed and leave declined. S.A.K./S‑185/S ????????? Leave declined.