1988 PLP 227 (SCMR)

SHAFIUR RAHMAN, J.--There are two petitions, one by the complainant and the other by the two convicts seeking leave to appeal against the judgment of the Lahore High Court, Lahore, dated 6-2-198:3 whereby the judgment of the trial Court was upheld and the appeals of the convicts were allowed to the extent that while maintaining conviction under section 302, P.P.C. the sentence of death awarded to them was not confirmed and instead substituted by life imprisonment. The revision filed by the complainant was also dismissed. A week before the occurrence which took place on 16-8-1977, the two deceased had reprimanded the respondents for standing in front of their house and misbehaving with the womenfolk of the house. On the 16th of October, 1977 at about sun-set the two deceased were going to ease themselves out in the fields when near the Dera of one Nazir Ahmad they, attacked them with knives. Bashir Ahmed, Ghulam Mohyuddin and Nazir saw the occurrence, tried to apprehend the respondents who managed to escape. A report about the occurrence was made at 11.30 p.m. with Syed Nazar Hussain Shah, Sub-Inspector, on which a case was registered at Police Station Chak Jhumra at 11.45 p.m. Asir Raza had two stab wounds on his person while Ijaz Ahmed had four incised wounds, one stab wound and two abrasions. The blood-stained knives were got recovered by both the respondents. The respondents pleaded their false implication on account of enmity and suspicion. The trial Court believed the ocular evidence and the recovery found no mitigation circumstance and convicted and sentenced them to death. The High Court, while seized of the question of confirmation of death sentence and the appeals of the convicts, found that the motive for the occurrence was not satisfactorily explained and proved However, the ocular evidence was relied upon and it was held that the First Information Report had not been delayed and the conviction of the two petitioners under section 302/34, P.P.C maintained but the death sentence of both was not confirmed and was substituted by imprisonment for life Mr.Ijaz Hussain Batalvi, Advocate, the learned counsel for the convicts-petitioners, pointed out that on any view of the matter the F.I. R. was delayed, that the eye-witnesses had not satisfactorily accounted for their presence at the spot at the time of occurrence and the recovery having not been held proved, the petitioners were entitled to acquittal. Mr. M. B.Zaman, Advocate, the learned counsel, for the complainant, on the other hand, urged that the motive as well as the recoveries were proved and that being the case, there was no mitigating circumstance on record which could justify the imposition of the lesser sentence of imprisonment for life. The motive has been found by the High Court not established. The recovery has also been considered by the High Court not dependable. Nevertheless, the High Court has considered the presence of the eye-witnesses as satisfactorily proved and their version of the occurrence to be correct and consistent. The occurrence took place in the middle of August and the presence of eye-witnesses within village Abadi at that hour cannot be seriously doubted for any reason. As the two persons have been put to death, the involvement of the two accused as stated by the eye-witnesses is consistent with their statement. The two Courts having believed the presence of these witnesses and the truthfulness of their statements, it is not possible in the absence of any legal defect in the appraisement of the evidence or in recording the conviction of the petitioners to go over the same evidence with a view to come to a different conclusion. For these reasons, there is no merit in the convicts' petition and leave to, appeal is refused. As regards the complainant's petition, we find that in the occurrence on both sides two young men are involved and the motive given out has not been satisfactorily proved as noted by the learned Judges in the High Court. Where the motive remains unproved, the benefit in the matter of sentence could be granted to the respondents and that being a legal sentence, this Court would be reluctant to interfere with it. In the circumstances, leave to appeal is refused to' the complainant also. S.Q./M-266/S????????????????????????????????????????????????????????????? ??????????????????????????????????? Leave refused.