' HASNAT AHMAD KHAN, J.---Through this revision petition, enhancement of the sentence of imprisonment for life, awarded to respondents Nos.2 and 3 by the learned Addl. Sessions Judge, Mailsee, to the sentence of death, has been sought.
2. Brief facts of the case are that a case F.I.R. No, 54/06 dated 12-2-2006 was registered at police station Tibba Sultanpur, in respect of the offences under sections 302/364/201/34, P. P. C .
According to the complainant, on 2-2-2006 at about 1-00 a.m. Both the respondents visited the house of the complainant and took away his son Sajjad Ahmad with them, stating that Sajjad Ahmad would return after two days, but according to the complainant, Sajjad Ahmad, did not return after two days, which worried the complainant. The complainant allegedly tried to contact the respondents Nos. 2 and 3, but failed to do so. On 12-2-2006, two prosecution witnesses allegedly intimated the complainant about the extra-judicial confession made by the said respondents, whereby, they confessed committing of murder of Sajjad Ahmad. According to the F.I.R. Motivating factors for the said murder was illicit relations of the deceased with some one of the family members of the said respondents. After the conclusion of the trial, both the respondents were found guilty of murder of Sajjad Ahmad deceased and sentenced to imprisonment for life.
The learned trial Court avoided to award sentence of death to both the accused by giving the following reasoning:-- "The prosecution has failed to prove the motive, so the circumstances under which the deceased was murdered by the accused persons remained mysterious. It is also uncertain as to whether sole fatal injury on the person of Sajjad Ahmad deceased was caused by Saeed Ahmad accused or Muntazar Abbas accused."
3. In support of this petition, learned counsel for the petitioner has contended that the reasoning, advanced by the learned trial Court for awarding lesser punishment being unrigorous is not sustainable. He adds that the absence of motive could not be made a ground for awarding lesser punishment. He maintains that though it was case of a single fatal injury, yet both the respondents deserved the major penalty.
4. After hearing the arguments of the learned counsel for the petitioner in extenso, I do not see eye to eye with the learned counsel for the petitioner. Under section 302(b), P.P.C. Two sentences have been provided by the legislature. Both the said sentences i.e, death sentence and imprisonment for life are legal. However, under the law while awarding lesser sentence of imprisonment for life instead of punishment of death, the learned trial Court is bound to give reasons. Admittedly, in this case, the learned trial Court has given the reasons for awarding lesser sentence. Now the only question which remains to be examined is as to whether the said reasoning of the learned trial Court is based upon correct application of the facts and law. For the said purpose, the facts of the case have to be examined in its entirety. In the case in hand, the deceased was allegedly murdered due to his illicit relations with some lady who is relative to the accused. Though, according to the learned trial Court, the said motive remained un-proved, yet the fact remains that the prosecution cannot back out from the motive set up by itself. Besides that the entire prosecution case is based upon the circumstantial evidence. No body had seen the respondents while committing the murder of the deceased who had suffered only one injury. It is not clear as to which of the respondents had caused said injury. In the circumstances of the case, two persons cannot be hanged for causing one injury especially when it is un-certain as to which of the said accused had caused the said injury. Consequently, I conclude that the lesser punishment awarded to the above-mentioned respondents does not merit interference as the discretion exercised by the learned trial Court in awarding one of the legal sentences does not appear to be perverse or illegal. For all the reasons mentioned above, this petition is found to be meritless and dismissed in limine.
5. Before parting with this order, it is observed that observations made herein would not prejudice the merits of the appeal, if any, filed by the convicts.