1990 PLP 1083 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑Petitioner seeks leave to appeal against the judgment of the learned Division Bench of the Lahore High Court, Lahore, whereby his Criminal Appeal No. 611 of 1983 was dismissed and the sentence of death awarded to the petitioner was confirmed on Murder Reference No. 188 of 1983 vide order dated 2‑5‑1987. The petitioner alongwith his futher Raja Khan was tried under section 302/34, P.P.C. for the murder of Mohammad Aslam, deceased, by a gun shot in the region of the abdomen. His father was acquitted but he himself was found guilty and sentenced to death subject to the confirmation by the High Court and in case of non‑confirmation to pay a fine of Rs.30,000 or m default thereof to undergo further rigorous imprisonment for three years. In case the fine was realised, Rs.20,000 .were ordered to be paid to the legal heirs of the deceased. This is vide order of the learned Additional Sessions Judge, Sargodha dated 6‑11‑1983. The conviction of the petitioner is based on the eye‑witness account furnished by Bhai Khan (PW 15) and Muhammad Yousaf (PW 16) as well as the recovery of the crime‑empty from the place of occurrence, which matched with the licensed gun P 5 of the petitioner. The learned 'counsel for the petitioner contended that Bhai Khan (PW 15) is not only related to the deceased being paternal‑uncle but 'was also inimical towards the petitioner as the latter had earlier got a case registered on 28‑3‑1982 under sections 307, 365, 326, 325, 348, 148 and 149, P.P.C. It was also contended that the other eye‑witness Muhammad Yousaf (PW 16) who is a brother‑in‑law (Sala) of the earlier witness (PW 15), lived a mile away from the spot. The occurrence had taken place in broad day light at 8‑00 a.m. on 24‑12 1982 and there can be no mistake identity of the single accused. Besides the evidence of Bhai Khan (PW 15) who is said to be related to the deceased and inimical towards the present petitioner, there is the evidence of Muhammad Yousaf (PW 16) who though related to Bhai Khan being his brother‑in‑law, yet nothing is urged to show as to how he was inimical towards the accused petitioner. He has explained his presence being on visit to the house of Noor Mustafa, husband of his sister. Empty cartridge P 4 was recovered vide memo Ex. PN from the spot by Fazal Karim, ASI, as witnessed by Ahmad Khan (PW 10) on the day of occurrence viz. 24‑12‑1982 and was deposited with Farman Ali, MHC, (PV11 5) for safe keeping in the Malkhana on 2fi‑11‑1982‑ Farman Ali (PW 5) gave the crime- empty to Muhammad Ismail (PW 7) on 2‑1‑1983 who delivered the same to the Forensic Science Laboratory at Lahore on 3‑1‑1983. The petitioner was arrested by Fazal Karim, ASI (PW 18) on 5‑1‑1983. The petitioner led to the recovery of his licensed gun P 5 on 19‑1‑1983 which was taken into possession vide memo Ex. PC in the presence of Muhammad Mumtaz (PW 11) and Pervaiz Iqbai (PW 17). On 21‑1‑1983, the scaled parcel containing the gun was delivered to Mohammad Ismail FC (PW 7) for delivery to the Forensic Science Laboratory at Lahore which was done on 22‑1‑1983. The report of the Director, Forensic Science Laboratory, Lahore, is to the effect that the crime‑empty was fired from the recovered gun. The recovery of the crime‑empty from the spot on the day of occurrence and its matching with the gun recovered from the petitioner some, days later and the report of the Forensic Laboratory that crime‑empty was fired from the gun of the petitioner corroborates the eye‑witness account. There is no manner of doubt that the petitioner was rightly found guilty and sentenced as aforesaid by the learned trial Court, and that the sentences were correctly maintained by the learned Division Bench of the Lahore High Court. It has been admitted by the learned counsel for the petitioner that the sentence of death awarded to the petitioner has since been commuted to life imprisonment under the Presidential Order. If this is not maintained, petitioner may apply for re‑hearing as regards the sentence. In view of what has been stated above, this petition is dismissed. N.H.Q./M‑1230/S Petition dismissed.