' MAHMOOD AKHTAR SHAHID SIDDIQUI, J.---Muhammad Sadiq appellant was convicted vide judgment dated 19-12-2000 by the learned Additional Sessions Judge, Pakpattan under sections 302 and 324, P.P.C. In case F.I.R. No,231 of 1999 dated 29-3-1999 registered at Police Station Saddar, Pakpattan for committing Qatl-e-amd of Muhammad Abbas and also for attempting to commit Qatl-e-amd of Zulfigar alias Bhutto, both sons of P.W.4 Muhammad Arif complainant. He was sentenced to death and directed to pay Rs,20,000 to the legal heirs of the deceased or in lieu thereof to undergo six months' S.I. Under section 302, P.P.C. He was also sentenced to 10 years' R.I.
With fine of Rs,5,000 or in lieu thereof to further undergo six months' S.I. Under section 324, P.P.C. And allowed the benefit of section 382-B, Cr.P.C.
2. The convict challenged his conviction and sentence through Criminal Appeal No,93 of 2001 before Lahore High Court, Lahore which came up for hearing along with Murder Reference No,124 of 2001. A learned Division Bench of the High Court dismissed the appeal and answered the murder reference in affirmative vide impugned judgment dated 20-4-2006. Hence, this appeal by special leave.
3. The occurrence took place on 29-3-1999 at about 9-30 a.m. In the compound (Ihata) for cattle belonging to one Bagh All son of Jagvera. It was Eid-ul-Azha, on that day. P.W.4 Muhammad Arif complainant, his two sons Muhammad Abbas deceased and P.W.3 Zulfigar alias. Bhutto, after saying Eid prayers, returned to their house. At about 9-30 a.m. Both the sons of Muhammad Arif went to the compound (Ihata) for cattle where they were to sacrifice (Qurbani) a cow. Muhammad Sadiq appellant was already present there. After a short while there was a commotion in the said compound (Ihata) which attracted the complainant, his wife Mst. Shukran Bibi and his son Muhammad Yaseen. They all rushed to the spot and saw Muhammad Sadiq armed with a pistol raising lalkara that Muhammad Abbas would be given a taste for not allowing partition of land. The appellant fired two shots from his pistol at Muhammad Abbas which hit on his chest and back. 'He fired another shot at Zulfiqar alias Bhutto causing, injury on his right arm. The appellant then fled away from the place of occurrence.
4. Muhammad Abbas died at the spot while Zulfiqar alias Bhutto was removed to Civil Hospital, Pakpattan for treatment. Muhammad Arif complainant was on his way to police station when he met Muhammad Ali Inspector/SHO Police Station Saddar Pakpattan at Chowk Diwan.
5. Appellant was arrested on 9-5-1999. After completion of investigation, he was sent to Court for trial. At trial, the prosecution produced as many as 11 witnesses in order to substantiate the charge.
P.W.3 Zulfiqar alias Bhutto (injured) and P.W.4 Muhammad Arif complainant furnished ocular account of the occurrence. P.W.2 Dr. Abdul Ghaffar who had conducted autopsy on the dead body of Muhammad Abbas on the day of occurrence and P.W.10 Dr. Muhammad Younis Rana who had medically examined Zulfiqar alias Bhutto on the same day provided medical evidence. The accused in his statement under section 342, Cr.P.C. Pleaded as under:-- "It was an unseen occurrence. Place of occurrence was also any different place and the deceased was murdered by some unknown assailants and Zulfiqar P.W. Was also injured. In fact the complainant is my elder brother. We are two brothers and two sisters. My father was owned 20 acres of land after his death the complainant my elder brother did not give any piece of land to our 'sisters and gave my only three acres. After this my brother wanted to grab my land and due to this reason I transferred my land to one Abdul Rehman. My brother/compliant filed a suit of pre- emption against Abdul Rehman and after the filing of that suit I retransferred my land to my own name. I also filed a partition suit in Revenue -Court which was still pending. We inherited 7 acres land from my mother side in Burewala and Liyyah. The complainant did not give any share of land to me and my sister. Moreover I am unmarried and single person. Once I engaged with Mst.
Balqees Bibi the younger sister of the wife of complainant who is my cousin. The complainant desisted me to marry with Balqees Bibi after that wherever I wanted to marry he always opposed me and in the result of this opposition I could never marry throughout my life because he wants to grab my land and property on each and every cast and in order to usurp my land, my Ihata, my residential house and my other property. The complainant falsely involved me in this case. I am an old and sick man of 75 years. The P.Ws. Are inimical to me and closely related to deceased so, they falsely deposed against me."
6. The learned trial Court found the prosecution case to have been proved up to the hilt and sentenced him as stated above.
7. Leave to appeal was granted by this Court vide order dated 24-7-2007, which is reproduced herein below:-- "It is, inter alia, contended that petitioner is real brother of complainant who at the time of incident was seventy years of age is a week and infirm person and was not able to actively participate in the commission of offence. According to him, petitioner even in his jail petition had mentioned his age as 80 years which is an extenuating circumstance for reduction of sentence of petitioner.
Leave to appeal is granted to consider the above contention.
2. Notice be issued to complainant for a date in office."
8. Learned counsel for the appellant contended that both the eyewitnesses are not only interested but also inimical towards appellant as such in the absence of any independent evidence, the charge against appellant cannot be said to have been proved beyond reasonable doubt. Learned counsel also prayed for reduction of sentence mainly on the ground that appellant was more than 80 years of age as such the extreme penalty in this advanced age would be very harsh. He placed reliance on the cases of Mst.Bevi v. Ghulam Shabbir and another (1980 SCM R 859), Muhammad Aslam Shah v. The State (1993 PCr.LJ 704) and Fazalur Rehman v. The State (1997 PCr.LJ Lahore 175).
9. Learned Deputy Prosecutor-General Punjab supported the impugned judgment and argued that both the victims in this case happen to be the real nephews of appellant who fired two firearms injuries to the deceased and one injury to P.W.3 Zulfigar Bhutto, as such lie does not deserve any leniency and normal penalty of death has been rightly imposed by the learned trial court and maintained by the learned High Court
10. The occurrence took place in day-light. P.W.4 Muhammad Arif, complainant is brother of the appellant and father of both the victims. Undoubtedly there has been a dispute over the partition of land between him and the appellant but he cannot be expected to have substituted the appellant for the real culprit. P.W.3 Zulfiqar alias Bhutto received firearm injury at the hands of the appellant there is absolutely nothing on the record to suggest that, this injury was self-suffered.
The F.I.R. Was lodged promptly and gives complete picture of the incident which is fully supported by medical evidence furnished by P.W.1. Therefore, we have found absolutely no reason to doubt the prosecution case. The findings of the learned trial Court have been affirmed by the learned High Court vide impugned judgment. We have also found no reason to allow benefit of lesser penalty of life imprisonment on the ground of age. The presence of the appellant at the place of occurrence with a loaded .30 bore pistol with which he fired three successive shots at his nephews on a day of religious festivities shows his determination and callousness. In the case of Amir Gul v.
The State (1981 SCM R 182) the accused was a person of 70 years of age who had .Acted in a brutal manner, was not held entitled by this court to benefit of lesser penalty of life imprisonment.
Therefore, no interference is called for in the impugned judgment which appears to be just and proper.
11. Thus, for the foregoing reasons, this appeal having no force is dismissed.