Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the impugned judgment dated 26-3- 2009 wherein the appeal of the petitioner against his conviction was partly allowed by converting his death sentence on two counts into life imprisonment on two counts.
2. Detailed facts have already been mentioned in para 3 of the impugned judgment and memo of petition in para 2. However, facts out of which the present petition arises are that the petitioner alongwith his acquitted co-accused, namely, Muhammad Ilyas, Azhar Hussain and Wajid Hussain were involved in case FIR No, 307 dated 19.10.1998 which was registered at Police Station Airport, District Rawalpindi, under Section 302/34 PPC on the complaint of Haji Abdul Qayyum on the allegation of committing murder of Shahzad Hussain and Tanveer Hussain. The investigating agency after investigating the case submitted challan against them in the Court of Additional Sessions Judge, Rawalpindi, on 4.12.1999. Petitioner and his three acquitted co-accused were charged under Section 302/34 PPC. The petitioner and his acquitted co-accused pleaded not guilty and claimed trial. The learned trial Court after completing the legal formalities such as recording the evidence of the prosecution and statements of the petitioner and his acquitted co- accused, convicted and sentenced the petitioner and his co-accused Muhammad Ilyas vide its judgment dated 25-1-2002 as under:-- Name of the accusedUnder Section sentence Mazhar Hussain 302(b) PPC Death on two counts with compensation of Rs, 100000/- to be paid to the legal heirs of Shahzad and Tanveer Hussain deceased each and in default to pay compensation to further undergo six months R.I. on each count.
Muhammad Ilyas 302(b)PPC Life imprisonment on two counts with compensation of Rs, 100000/- to be paid to the legal heirs of Shahzad Hussain and Tanveer Hussain deceased each and in default to pay compensation to further undergo three months R.I. on each count. Both the sentences were ordered to run concurrently.
3. It is pertinent to mention here that the learned trial Court had acquitted Wajid Hussain and Azhar Hussain, the co-accused of the petitioner by giving them the benefit of doubt. The petitioner and his acquitted co-accused (Muhammad Ilyas) filed Criminal Appeal No, 35 of 2002 in the Lahore High' Court, Rawalpindi Bench, Rawalpindi. The complainant being aggrieved filed Criminal Appeal No, 52/2002 against the acquittal of Wajid Hussain and Azhar Hussain and also filed Criminal Revision No, 28/2002 for enhancement of sentence of co-accused Muhammad Ilyas. The trial Court had also sent Murder Reference No, 434/2004 seeking confirmation or otherwise of the death sentence awarded to Mazhar Hussain, petitioner, under Section 374 Cr.P.C. The learned High Court vide its impugned judgment dated 26.3.2009 converted the death of the petitioner on two counts into, life imprisonment on two counts with benefit of Section 382 Cr.P.C. by maintaining the amount of compensation awarded by the trial Court to be paid to the legal heirs of both the deceased and in default thereof he will undergo six months S.I. on each count. However appeal was accepted to the extent of Muhammad Ilyas and his sentence and conviction was set aside. It is pertinent to mention here that the learned High Court dismissed the appeal and revision of the complainant.
Hence the present petition.
4. Learned counsel for the petitioner submits that the learned High Court had disbelieved the prosecution version, ocular account and motive, therefore, it was not justified to convert the death penalty into life imprisonment as the petitioner would be entitled to be acquitted. He further urges that the learned High Court had also reached to the conclusion that the deceased were aggressors and the petitioner acted in the exercise of right of his self defence, therefore, the learned High Court erred in law to convict the petitioner. He further maintains that the reasons given by the learned High Court for exceeding right of self defence are illogical, fanciful and against the settled principles of law.
5. We have give our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record. The learned High Court had considered the contentions raised by the learned counsel of the petitioner which was rejected by the trial Court with cogent reasons as evident from Para 27 of the judgment of the trial Court which is reproduced herein below: "Mazhar Hussain accused has admitted in his statement u/S. 243 Cr.P.C. and his written statement u/S. 265-F(5) Cr.P.C. that he murdered Shahzad Hussain and Tanveer Hussain deceased persons by using his right of self defence. From the circumstances of the case, it has become clear that Mazhar Hussain accused became injured during the instant occurrence. Circumstances of the case show that if the deceased persons attacked at Mazhar Hussain accused, even then they had not leIhal weapon with them and the injuries sustained by the accused Mazhar Hussain were not of such nature that he could be allowed to murder two persons. It is fully proved that even if accused Mazhar Hussain was attacked by the deceased persons, even then circumstances do not show that life of the accused Mazhar Hussain was in danger. Even if he used his right of self-defence, he could not be allowed to murder two persons. Circumstances show that even if accused Mazhar Hussain used his right of self-defence, be exceeded the same. The guilt of Mazhar Hussain accused is proved on the file beyond any shadow of doubt, therefore, he is convicted for Qatl-e-Amd of Shahzad Hussain and Tanveer Hussain deceased persons u/S. 302(b) PPC."
6. The learned counsel for the petitioner has raised the same contentions before the learned High Court. The learned High Court had rejected the same with cogent reasons and converted death penalty of the petitioner into life imprisonment as evident from Paras 13 and 14 of the impugned judgment. It is no doubt that the petition had raised the plea of self-defence since the initiation of criminal proceedings against him but the petitioner had failed to bring on record sufficient material to show that he had not exceeded deliberately the right of private defence/self-defence. It is admitted fact that petitioner had murdered two persons by inflicting fire-arm injuries from his weapon. Injuries were sustained by the deceased on their vital parts. The circumstances and evidence on record do not reveal that right of self-defence does not extend to causing of death of two persons at a time with fire-arm. Injuries inflicted to the deceased do not bring the case of the petitioner within the four corner of self-defence to the extent that the petitioner had not exceeded his right of self-defence which otherwise on account of firing proves both the mens rea and actus runs on the part of the petitioner The petitioner has no justification to take life of two persons by using fire-arm. Keeping in view the circumstances of the case in spite of the fact that complainant was found aggressor, thus the petitioner had exceeded the right of private defence. Sentence of life imprisonment on two counts with benefit of Section 382-B Cr.P.C. awarded by the learned High Court would not be interfered with by us. The right of private defence exceeded when the petitioner found to have shot dead two deceased while injuries on the petitioner were not of such nature to take life of the two persons, therefore, learned High Court was justified to alter the sentence of death into life imprisonment. It is also admitted fact that both the Courts below have concurrently come to the conclusion qua the guilt of the petitioner. It is settled principle of law that this Court does not interfere qua the concurrent conclusions of the Courts below while exercising power under Article 185(3) of the Constitution of the Islamic Republic of Pakistan. The petitioner had committed the offence in a very brutal manner and on account of discrepancies highlighted by the petitioner before us of the prosecution which were given due weight by the learned High Court while converting the death penalty on two counts awarded by the trial Court to the petitioner into life imprisonment on two counts. It is settled principle of law that this Court generally does not interfere qua the legal sentence awarded by the Courts below while exercising constitutional power under Article 185(3) of the Constitution. Even otherwise it is settled principle that constitutional jurisdiction is discretionary in nature. Keeping in view the manner of killing of two persons by the petitioner we are not inclined to exercise constitutional power in favour of the petitioner. We do not find any justification to interfere with the sentences awarded by the learned High Court.
7. In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment. Therefore, the petition has no merit and the same is dismissed. Leave refused.