1. MANZOOR AHMAD MALIK, J.---Allah Wasaya and Shaukat Ali (appellants) along with four others were indicted in case FIR No.37/1999 dated 19.02.1999 offence under sections 302, 324, 148 and 149, P.P.C. registered at Police Station Drakhawast Jamal Khan, District Dera Ghazi Khan for the murder of Muhammad Ibrahim and Rasool Bakhsh (deceased) and launching a murderous assault upon Abdul Hakeem injured (PW.10).
2. 2.After the trial, Allah Wasaya (appellant No.1) and Shaukat Ali (appellant. No.2) were convicted under section 302(b), P.P.C. read with sections 148 and 149, P.P.C. and both of them were sentenced to death on two counts. Both of them were also made liable to pay compensation under section 544-A, Code of Criminal Procedure of Rs.50,000/- (rupees fifth thousand only) payable to the legal heirs of the deceased. In case of default in payment of compensation, both of them had to undergo simple imprisonment for three months. Allah Wasaya (appellant No.1) was further convicted under section 324, P.P.C. and sentenced to seven years' R.I. and fine of Rs. 5000/-. In default of payment of fine, he had to undergo simple imprisonment for two months. The learned trial court also recorded convictions/sentences against Abid and Liaqat co-convicts of the appellants but the same are not relevant for the disposal of this appeal. Before proceeding further with the case it is relevant to note here that co-accused of the appellants namely Jaffar and Allah Ditta were acquitted by the learned trial court on the basis of compromise.
3. 3.Aggrieved of their convictions/sentences recorded by the learned trial court the appellants along with their co-convicts namely Abid and Liaqat filed Criminal Appeal No.185 of 2002 whereas the complainant preferred Criminal Revision No.88 of 2002 for enhancement of the sentence awarded to Liaquat and Abid co-convicts of the appellants. The learned trial court sent Murder Reference No.211 of 2002 for confirmation or otherwise of the sentence of death awarded to the convicts. A learned Division Bench of Lahore High Court Multan Bench through the impugned judgment 15.10.2008 modified the judgment of the learned trial court in the following terms:-
(1) Allah Wasaya is convicted under section 302(b), P.P.C. for Qatl-i-amd of Rasool Bukhsh and sentenced to death punishment and also to pay compensation of Rs.50,000/- to legal heirs of the deceased and in default thereof further undergo three months' S.I.
4. He is further convicted under section 302(b)/34, P.P.C. for Qatl-i-amd of Muhammad Ibrahim and sentenced to life imprisonment and also to pay compensation of Rs. 50,000/ - to legal heirs of the said deceased and in default thereof to further undergo three months' S.I.
5. His conviction for attempting to commit Qatl-i-amd of Abdul Hakeem is maintained.
6. Shaukat is convicted under section 302(b)/34, P.P.C. for Qatl-i Amd of Rasool Bukhsh as well as Muhammad Ibrahim deceased and sentenced to life imprisonment on two counts. He shall pay compensation of Rs.50,000/ - to legal heirs of each deceased and in default thereof to further undergo three months' S.I. Revision or appeal has not been filed by the complainant for his conviction under section 324, P.P.C.
7. (3)...........
8. Benefit of section 382-B, Cr. P. C. is extended to all the convicts and sentences awarded to them shall run concurrently."
9. Being still dissatisfied with the judgment of the learned appellate court, Allah Wasaya and Shaukat Ali convicts preferred Criminal Petition No.531/L of 2008 wherein leave was granted vide order dated 03.03.2009 to reappraise the entire evidence for safe administration of criminal justice.
10. Hence this appeal.
11. 4.We have heard learned counsel for the appellants as well as learned Additional Prosecutor General for the State and have gone through the available record with their able assistance.
5. This unfortunate occurrence wherein two persons lost their lives whereas one received grievous injuries took place on 19.02.1999 at 08.00 a.m. within the territorial limits of mauza Darkhawast Jamal Khan Gharbi whereas it was reported to the Police on the same morning at 09.00 a.m i.e. just one hour after its happening despite the fact that distance between the Police Station and the place of occurrence is eight kilometers. Both the appellants have been charged for the murder of Rasool Bakhsh and Muhammad Ibrahim and launching a murderous assault upon Abdul Hakeem (injured PW.8). The ocular account was furnished by Abdul Karim complainant (PW.8) and Abdul Hakeem (PW.10) which is fully supported by the medical evidence furnished by Dr. Abdul Rehman Qaisrani (PW.6) and. Dr. Fakhar ud Din (PW.7). Prosecution case to the extent of both the appellants is further corroborated by the recovery of weapons of offence at the instance of the appellants during the course of investigation and positive report of Forensic Science Laboratory. Therefore, we hold that the prosecution successfully proved its case against both the appellants beyond any shadow of doubt.
12. 6.But it is not a case of capital punishment to the extent of Allah Wasya (appellant No.1) as Allah Ditta co-accused of the appellants who allegedly was reluctant to give the hand of his sister for Shah Bakhsh brother of the complainant was acquitted by the learned trial court on the basis of compromise. No direct motive was alleged against Allah Wasaya, therefore, taking it as a mitigating circumstance, the sentence of death awarded to Allah Wasaya (appellant No.1) is altered to imprisonment for life on two counts. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned courts below is maintained. Conviction and sentence of Allay Wasaya (appellant. No.1) under section 324, P.P.C. is maintained. All the sentences awarded to Allah Wasaya (appellant) shall run concurrently and he is also extended the benefit of section 382-B, Code of Criminal Procedure. With this modification in the quantum of sentence, this criminal appeal to the extent of Allah Wasaya (appellant No.1) is partly allowed.
13. 7.So far as Shaukat Ali (appellant No.2) is concerned, his sentence of death has already been converted into imprisonment for life by the learned appellate court. Moreover, according to report dated 29.04.2017 submitted by the. Superintendent Central Jail D.G. Khan, Shaukat Ali appellant has already been released from jail on 28.05.2012, therefore, this appeal to the extent of Shaukat Ali (appellant No. 2) is without merit and the same is dismissed accordingly.