1999 PLP 406 (SCMR)

SH. IJAZ NISAR, J.

This appeal with the leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 26-7-1994, whereby the appeal filed by Muhammad Ikram alias Billa and Muhammad Waheed appellants, challenging the judgment dated 8-12-1990 passed by the learned Additional Sessions Judge; Lahore, convicting both the appellants under section 302/34, P.P.C. and sentencing them to death and imprisonment for life respectively plus fine for the murder of Abdul Rehman alias Badshah, was dismissed.

2. On 21-3-1989 at 8.25 p.m. a case under section 302/34, P.P.C. was registered on the statement of Sohail Qaiser complainant at Police Station Masti Gate, Lahore against the appellants on the allegations that on the day of occurrence at about 7.30 p.m. Sohail Qaiser complainant had gone to Barood Khana Bazar to purchase merchandise. His younger brother Abdul Rehman alias Badshah deceased was already present in the Bazar. On alarm, the complainant saw Ikram and Muhammad Waheed appellants while armed with a dagger and Chhuri, respectively, causing injuries to Abdul Rehman deceased, which proved fatal. Muhammad Iqbal P.W.4, Ilyas Jauzaf and Abdul Rehman alias Lala (not examined) witnessed the occurrence besides Qaiser Sohail P.W.3.

3. The motive, as disclosed in the F.I.R., was that in the evening preceding the day of occurrence a dispute over money matter had taken place between Abdul Rehman deceased and Muhammad Ikram-accused in which the former had abused Muhammad Ikram, appellant and the same had led to the occurrence in question.

4. Leave to appeal was granted by this Court vide order, dated 10-4-1995, the relevant portion whereof is as under:

"Petitioners seek leave to appeal by filing this petition against their conviction and sentence. Learned counsel submits that P.Ws. are related to the deceased inasmuch as Sohail Qaiser P.W.3 is his real brother while Muhammad Iqbal P.W.4 is merely a chance witness and has no status in life to be safely relied upon in this case of capital charge. It is argued that ocular account was not in line with evidence of Dr. Irshad Ullah and it did not inspire confidence. Elaborating further, learned counsel states that injuries 1 to 3 could not be explained and, "as such, this fact would create doubt in the prosecution story. Leave to appeal is granted to the petitioners to reappraise the evidence to ensure safe administration of criminal justice."

5. The prosecution case is based on the ocular testimony furnished by Sohail Qaiser P.W.3, Muhammad Iqbal P.W.4 and Mahmood-ul-Hasan P.W.5, the recovery witness of blood-stained dagger P.4 recovered at the instance of Muhammad Main appellant and blood-stained Churri P.5 on the pointation of Waheed appellant.

6. It is contended that it was an unwitnessed occurrence and the F.I.R was recorded after preliminary investigation. It is further maintained that it was not a case of capital punishment, in that, the deceased had provoked Muhammad Ikram appellant by abusing him when he demanded his money back from him.

7. So far as the testimony of Sohail Qaiser P.W.3 and Muhammad Iqbal. P. W .4 is concerned, we do not find any discrepancy in their statements rendering them unworthy of belief. They stood the test of cross-examination and gave a consistent and coherent detail of the occurrence. They stand corroborated by the unimpeachable testimony of Mahmood-ul-Hasan P.W.5, the recovery witness. Their evidence is also corroborated by the medical evidence

8. In these circumstances, we see no reason to doubt or discard their evidence. However, there is mitigating circumstance so far as the sentence of Muhammad Ikram appellant is concerned, because Sohail Qaiser P.W.3 had himself admitted that Muhammad Ikram appellant had given Rs.300 to the deceased as loan and that the deceased had quarreled and scuffled with him when he demanded his money back. He further admitted that the deceased had also abused the appellant on that occasion. Muhammad Ikram appellant, who was a youth and teenager must have felt highly offended over the conduct of the deceased for his failure to return the borrowed money and having received abuses from the deceased on demanding his money back. This fact entitles him to leniency in the matter of sentence, and we think that the ends of justice will be met if his death sentence is converted into life imprisonment plus the same fine and compensation as awarded by the learned trial Court. With this modification in the sentence of Muhammad Ikram appellant the appeal is otherwise dismissed. Both the appellants shall be entitled to the benefit of section 382-B, Cr.P.C. , H.B.T./M-261/S Order accordingly