1998 PLP 1586 (SCMR)

IRSHAD HASAN KHAN, J.

This appeal, with the leave of the Court, is directed against the judgment dated 4-5-1994 passed by the Lahore High Court, Lahore in Criminal Appeal No.628 of 1990.

2. The prosecution case in nutshell is that Shabbir Hussain, complainant is the son-in-law of Khushi Muhammad deceased, who is resident of Mohallah Sabir Da Kot and was residing at his lands alongwith her wife at the relevant time. On the day of occurrence, i.e. 4-10-1989, Khushi Muhammad had come there to see his daughter Mst. Sughra Bibi. At Peshiwela time, Mst Sughra saw Mst. Munazza, sister of the appellant herein stealing pumpkins (Kuddus) from their field. She forbade her from doing so resulting into an altercation. While both the women were grappling with each other, Khushi Muhammad came there. He separated them and also admonished Mst. Munazza saying that she was not only committing theft but also aggressive, .upon which she left the spot saying that she will avenge her insult. Mst. Munazza, after some time, came to the spot alongwith the appellant Tariq, who was armed with a carbine. The appellant abused Khushi Muhammad and then fired an effective shot which hit the deceased on his right shoulder, upon which he fell down. He was taken to the hospital, but he died before any medical aid could be given to him. 3 Motive for the occurrence is the quarrel between Mst. Sughra and Mst. Munazza on stealing of pumpkins (Kaddus) by the latter from the filed of Shabbir Hussain complainant, son-in-law of Khushi Muhammad deceased.

4. Amjad Hussain Shah, S.I. conducted the investigation. He arrested the appellant on 16-10-1989, who led to the recovery of unlicensed carbine P4 from his house. He also recorded formal arrest of Mst. Munazza co-accused. After completion of investigation, the challan was submitted in Court.

5. The learned Sessions Judge, Gujrat vide judgment dated 30-8-1990 found the appellant guilty of the charge under section 302, P.P.C. and sentenced him to suffer imprisonment for life and a fine of Rs.2,000 or in default to undergo two years' R.I. He was further directed to pay Rs.20,000 which, subject to recovery, were to be paid to the legal heirs of the deceased as compensation and in default thereof to further undergo simple imprisonment for six months. The co-accused Mst. Munazza was acquitted of the charge. On appeal, the High Court maintained the conviction and sentence of the appellant but gave him benefit of section 382-B, Cr.P.C. vide impugned judgment dated 4-5-1994.

6. Leave to appeal was granted by this Court on the question of sentence only. It would be advantageous to reproduce the leave granting order, which reads thus: "The prosecution has proved the case against the petitioner beyond reasonable doubt. The only question to be considered is that as at the time of occurrence the petitioner aged 15 years was accompanied with A his elder sister aged 22 years (who had come to avenge for her insult) was petitioner not under her influence being her younger brother of tender age and was not a free agent while committing the offence. This aspect may be looked into only for the purpose of determining the z , quantum of sentence." 7, Mr. Muhammad Javed Aziz Sindhu, learned counsel for the appellant did not question the conviction of the appellant for the murder of Khushi Muhammad. Leave to appeal was also granted to consider the question of sentence only. It is, therefore, not necessary to reappraise the evidence in this behalf, Suffice it to say that the conviction rests on the testimony of the eye witnesses namely, Shabbir Hussain, complainant/P.W.8, Mst Sughra P.W.9 daughter of the deceased, who fully corroborated the statement of her husband Shabbir Hussain, P.W.8, that the appellant fired an effective shot at her father Khushi Muhammad deceased, which later proved fatal. The occurrence has never been denied. The F.I.R. was lodged promptly. medical evidence also corroborates the ocular testimony that the death was caused due to fire-arm injury. Besides, there was no previous enmity between the parties, which fact eliminates the possibility of false implication. The version given by the eye witnesses also confidence inspiring and the same was believed by the trial Court qua implication of the appellant. Recovery of carbine P4 on the pointation of Tariq appellant from his house on 18-10-1989 also corroborates the eye witnesses' account. The trial Court awarded sentence of life imprisonment instead of capital punishment to the appellant because of his youth observing. "As for the sentence, Tariq accused is a young lad of about 15 years or so and he took the motive, as discussed above, to his heart which involves a bit of family honour and so I take a lenient view and sentence Tariq accused to imprisonment for life with fine of Rs.2,000......"

8. Learned counsel for the appellant vehemently argued that thn occurrence took place as result of grave and sudden provocation, in that, the deceased admonished the sister of the appellant on her misbehavior and that in any case the appellant being a youngster of tender age deserved lesser penalty. We are not impressed by the plea raised by the learned counsel for the appellant. Suffice it to say that the main occurrence took place not as soon as the sister of the appellant was insulted but several hours afterwards. Having regard to the interval between the moment of insult and that of the occurrence, it cannot be said that the provocation as grave sudden enough to take the case out of e section 302., P.P.C. Clearly, the murder did not take place as a result of sudden flight to heat of passion but with premeditation. In any event, the learned Trial Court having regard to the facts and circumstances of the case, took the view that the sentence of life imprisonment instead of death would meet the ends of justice. The High Court rightly maintained the conviction and sentence of the appellant in the circumstances of the cast.

9. Viewed in this background, the maintenance of. sentence of life imprisonment by the Courts below does not warrant interference. The appellant has already been given benefit of section 382-B, Cr.P.C. by the High Court.

10. Resultantly, we find no force in the appeal which is hereby dismissed. N.H.Q./T-5/S Appeal dismissed.