1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 has been preferred by Yar Muhammad convict from jail against the judgment dated 29-4-1999 of the Lahore High Court, Lahore, through which the conviction and sentence of death awarded to- the petitioner under section 302,P.P.C. By the trial Court was maintained by the Division Bench of the said High Court. Pending disposal of this petition, a miscellaneous application under Order XXXIII, rule 6 of the Supreme Court Rules, 1980 was moved on behalf of Mst. Kaniz Fatima widow of Allah Ditta deceased wherein she stated that the legal heirs of thedeceased have compromised with Muhammad Yar convict and prayed for the acquittal of convict in terms of the compromise. This Court vide order dated 4-3-2002 sent the application and documents annexed therewith, to the learned Sessions Judge, Faisalabad to ascertain the genuineness of the compromise between the parties by recording statements of the legal heirs of the deceased. The learned Sessions Judge, Faisalabad, has submitted his report to this Court wherein it is stated that Mst. Sammon Bibi mother of the deceased, Noor Muhammad, Muhammd Akmal, Muhammad Ajmal, Hafiz Kafayat Ullah and Noorul Moshaikh sons, Mst. Rukhsana and Mst.
2. Robina daughters of deceased while appearing before him denied their compromise with the convict, however, Mst. Kaniz Fatima widow of the deceased (second wife) who was identified by Mehr Rab Nawaz Khan, Lambardar of Chak No,246/RB stated that she having waived her right of Qisas has forgiven Muhammad Yar convict in the name of Almighty Allah.
3. ' Learned counsel for the petitioner when confronted with the report submitted by learned Sessions Judge, Faisalabad, and the law laid down by this Court in Muhammad Aslam v. Shaukat Ali 1997 SCM R 1307 and Faqir Ullah v. Khalil-uz-Zaman 1999 SCM R 2203 wherein it was held that if a victim has more than one Wali and anyone of them waives his right of Qisas, it cannot be enforced and Wali who has not waived or has not entered in Badl-e-Sulah will be entitled to receive his share of Diyat subject to section 311, P.P.C. But in case in which an accused person has been awarded sentence of death as Tazir and not as Qisas, the sentence can be compounded by all the legal heirs of the deceased with permission of the Court and if one of the legal heirs of the victim is not party to the compromise, the sentence of Tazir under section 302(b), P.P.C. Cannot be compounded, the learned counsel does not press this application for compromise and submitted that the case may be disposed of on merits. Order accordingly.
4. ' The petitioner was tried by Judge, Punjab Special Court, Suppression of Terrorist Activities, Faisalabad Division, Faisalabad for the charge under section 302, P.P.C. For committing murder of Allah Ditta in the area of Chak No,245/RB, Kukarwala District Faisalabad and under section 324, P.P.C. For the charge of causing murderous assault at Mst. Kaniz Fatima, widow and Muhammad Akmal son of Allah Ditta in the same occurrence. The learned trial Judge having found the petitioner guilty of the charge upon conviction, sentenced him in the following manner:--
(a) Under section 302, P.P.C. 'sentence of death with fine of Rs,20,000 and in default of the payment of fine to undergo R.I. For one year. Half of the fine if recovered, was ordered to be paid to the legal heirs of the deceased Allah Ditta.
(b) Undet section 324, P.P.C. Sentence of five years R.I. On two counts for causing injuries to Mst.
5. Kaniz. Fatima and Muhammad Akmal with fine of Rs,5,000 on each count and in default of payment of fine to undergo R.I. For six months on each cont.
6. ' The relevant facts necessary for disposal of this petition as contained in the F.I.R. (Exh.P.A.) lodged by Falik Sher, P.W.1, at 11-15 a.m. On 28-11-1992 at Police Station Thekarianwala District Faisalabad which was recorded by Sheikh Zamir Hussain, S.-I. Are that on the same day at 10-00 a.m. The convict while armed with gun opened firing at Allah Ditta deceased, Mst. Kaniz Fatima his wife and Muhammad Akmal his son, when they in company of the complainant. Falik Sher and his brother Malik Sher and one Manzoor Hussain were standing at the bus stand near oil factory in the area of Abbas Pur Chak No,245 /RB Faisalabad, Muhammad Yar alias Kukoo accused while armed with rifle suddenly appeared at the scene and raised Lalkara that he would not allow Allah Ditta and Mst.
7. Kaniz Fatima go alive on that day and simultaneously opened firing as a result of which Mst. Kaniz Fatima and Muhammad Akmal sustained injuries and on challenging by Allah Ditta Muhammad Yar. Fired at deceased who received injuries on different parts of his body. The complainant Falik Sher and the witnesses being empty-handed, could not interfere and the accused while firing in the air escaped from the place of occurrence. The motive behind the occurrence as narrated by the prosecution was that Muhammad Yar was interested in the hand of Mst. Kaniz Fatima but she was engaged with Allah Ditta, whereupon Muhammad Yar had extended threats to the family of the complainant and for the said reason he developed grudge against Allah Ditta and Mst. Kaniz Fatima. The prosecution in support of the charge against the petitioner examined Falik Sher complainant (P.W.1), Mst. Kaniz Fatima (P.W.2) and Muhammad Akmal (P.W.3) as eye-witnesses of the occurrence. Mst. Kaniz Fatima and Muhammad Akmal sustained injuries in the occurrence and were medically examined by Mian Tahir Javed, Medical Officer, P.W.10, on the day of occurrence.
8. The medical examination of Mst. Kaniz Fatima revealed following injuries on her persons:-- "AL/wound 3/4 x 3/4 c.m./DNP with inverted margins front of Rt. Thigh.
9. ' AL/wound 8 x 7.5 c.m.IDNP back right thigh with everted margins."
10. ' Muhammad Akmal sustained following injury:-- "Crush injury to right knee joint muscles and nerves are exposed. Petalls and the adjacent bones of the knee joint were badly shattered".
11. ' Noor Ellahi P.W.4, Muhammad Mansha P.W.5, Gooba P.W.6, Muhammad Siddique P. W .7 and Muhammad Arshad P. W . 8 performed different functions, being remained associated with the investigation of the case. Dr. Muhammad Yousaf, Medical Officer, District Headquarters Office, Faisalabad, P.W.9, conducted post-mortem on the dead body of Allah Ditta and found following injuries on his person:-- "(i) A fire-arm wound 1 c.m. x 1 c.m. With inverted margin on the outer side of left side of chest at the Lt. Posterior axillary line, 18 c.m. Below top of left shoulder with wound of exit 3 c.m. x 2 c.m. Front of right side of chest side of chest lower part, 8 c.m. Below the right nipple, 13 c.m. From midline. On dissection the projectite after passing through the soft tissue entered the chest cavity between the intercostals space of 4th and 5th ribs, pierced the left lung and heart through fractured the sternum and 5th, 6th, 7th, 8th ribs anteriorly close to the sternum. Pierced the diaphragm, hugely damaged the liver and existed through the exit would between the intercostals space between 9th and 10th ribs (Chest cavity was full of blood).
(ii) A fire-arm wound 2 c.m. x 1 c.m. With inverted margin on the back of right thigh upper part with exit wound 4-1/2 c.m. x 2 c.m. Having everted margins on the front of right thigh upper part. On dissection only soft tissues were damaged.
(iii) A fire-arm wound 1 c.m. x 1 c.m. With inverted margin on the outer side of Lt. Thigh upper part 28 c.m-above the knee with exit wound 3 c.m. x 1-1/2 c.m. Having everted margin on the inner side of Lt. Thigh 4-1/2 c.m. Below left buttock. On dissection only soft tissues were damaged. On scalp skull and vertebra membranes and spinal cord, no abnormality was detected."
12. ' In the opinion of doctor all the three injuries were caused with the fire-arm and injury number 1 was sufficient to cause death. Zamir Hussain Shah, S.-I. P.W.11 investigated the case and submitted challan.
13. ' The accused in his statement under section 342, Cr.P.C. Pleaded innocence and while making a statement under section 340(2), Cr.P.C. On oath deposed that he was falsely implicated in the case due to the enmity.
14. ' The learned trial Court while placing reliance on the ocular evidence of injured witnesses convicted and sentenced the petitioner as detailed above. On appeal, learned Division Bench of the High Courtmaintained conviction and sentence of the petitioner with the following observations:-- "The perusal of these statements of two doctors shows that the deceased and the injured P.Ws.
15. Received fire-arm injuries which corroborate the ocular account furnished by three eye-witnesses.
16. These witnesses have got no enmity whatsoever with the appellant. Motive has also been corroborated by the ocular account and the same has been furnished by Falak Sher and Mst. Kaniz Fatima P.W.1 and P.W.2. As far as recovery of .7 MM rifle is concerned, no crime empty was taken into possession from the spot, so we do not attach any importance to the recovery of said rifle.
11. In our view, prosecution has proved its ease through ocular account corroborated by medical evidence and the motive furnished by the P.Ws. And the same has been proved against the appellant beyond any shadow of doubt. So conviction and sentence awarded to the appellant by the learned trial Court is hereby maintained. Death sentence awarded to the appellant by the learned trial Court is confirmed. Fine of Rs,20,000 is. Converted into compensation which the appellant would pay to the legal heirs of the deceased Allah Ditta' as required under , section 544- A, Cr.P.C. In default he will have to undergo six months simple imprisonment. The sentence of fine Rs,5,000 as ordered by the learned trial Court is maintained. With these observations, both Criminal Appeal and Criminal Revision are dismissed."
17. ' Learned counsel for the petitioner submitted that petitioner has no case on merit for acquittal and contended that he has legitimate right of reduction in sentence from death to life imprisonment due to the continuous detention in jail since the date of his arrest in 1992. Learned counsel submitted that the petitioner upon conviction in 1993 was in jail as condemned prisoner and thus having undergone the imprisonment for a total period of about ten years would deserve leniency in the matter of sentence and if the sentence of death awarded to the petitioner is maintained, he would be victim of double punishment.
18. ' With the help of learned counsel for the petitioner, we having gone through the entire evidence have not been able to find out any mitigating circumstance in favour of the petitioner for lesser punishment. The petitioner being unsuccessful in getting the hand of Mst. Kaniz Fatima developed grudge against Allah Ditta and Mst. Kaniz Fatima and with this background of vindictiveness, he attacked on them as a result of which Mst. Kaniz Fatima widow of the deceased and Muhammad Akmal,his son, sustained injuries and Allah Ditta lost his life. Mst. Kaniz Fatima and Muhammad Akmal categorically supported the prosecution case as contained in the F.I.R. And corroborated each other on each material point. The eye-witness's account is also corroborated by medical evidence and the motive part of the prosecution story narrated by the complainant and Mst. Kaniz Fatima. There is nothing on record to suggest that something happened between the petitioner and the deceased immediately before the occurrence which would be considered as a source of mitigating circumstance in favour of the petitioner for lesser penalty. The detention of the petitioner as under trial prisoner during the trial and as convict in the jail pending disposal of the appeal before the High Court and this petition before this Court, would not be an extenuating and mitigating circumstance to be considered for the purposes of quantum of sentence under section 302(b), P.P.C. It was held by this Court in Maqbool Ahmed v. The State 1987 SCM R 1059 that "detention of convicts in jail by itself to be no mitigating circumstance entitling persons convicted for murder to lesser penalty or reduction of sentence". The withholding of normal penalty of death in a murder case and imposition of alternate sentence of imprisonment for life is not such a discretion which should be exercised as a matter of pride rather such discretion is exercised in a case in which circumstances so demanded in the interest of safe administration of justice. This Court in Nuran v. Nura PLD 1975 SC 174 held that in absence of any mitigating or extenuating circumstance, the Court should not withhold normal penalty of death under section 302, P.P.C. In its discretion. Reference may also be made to Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452.
19. We having considered the contentions raised by the learned counsel for the petitioner, do not find any force in the argument that upholding of sentence of death of the convict would amount to double punishment. The period spent by a condemned prisoner in death cell in C jail pending disposal of his appeal by the High Court and by this Court if any cannot be deemed as part of his substantive sentence unless the sentence of death is altered into life imprisonment. However, the detention in jail pending disposal of appeal would not itself be a factor to be taken into consideration for alteration of sentence of death into life imprisonment.
20. For the foregoing discussion, we while maintaining the conviction and sentence awarded to the petitioner by the trial Court and upheld by the High Court dismiss this petition. Leave to appeal is refused.