1. ABDUL QADEER CHAUDHRY, J.---Leave to appeal is sought against the judgment of the High Court dated 30-10-1988 for the enhancement of sentence of the respondents.
2. The facts, in brief are that it is alleged that on 15-6-1985 the respondents and Muhammad Naseem armed with pistols, Muhammad Nawaz and Abdul Latif armed with Sotas appeared at the scene.
3. They raised a lalkara, Qamar Sultan fired at Muhammad Ashraf which hit him on his leg.
4. Muhammad Ashraf fell down on the ground. Respondent Muhammad Naseem then fired at the complainant Shabrati but Shabrati laid himself on the ground in order to avoid the fire. The fire-of Muhammad Naseem respondent missed complainant Shabrati but had hit Muhammad Sadiq a passerby. Respondents Muhammad Nawaz and Abdul Latif then inflicted their Sota blows on the person of Shabrati.
5. The motive for the said occurrence was that Muhammad Ashraf deceased son of Shabrati and Ghulam Abbas, brother of P.W. Atta Muhamuiau had a quarrel with respondent Muhammad Naseem and injured Muhammad Naseem respondent. A case under section 307/34, P.P.C. Was registered against the deceased Muhammad Ashraf and Ghulam Abbas. The respondents had caused the injuries as a result of the said motive.
6. The trial Court convicted and sentenced the accused as hereunder:-
(1) Qamar Sultan,. Muhammad Naseem, Muhammad Nawaz and Abdul Latif, under Section 304, P.P.C. 3-1/2 years' R.I. Each and fine of Rs.5,000 each or in default 1 year R.I. Each.
(2) Under Section 324/34, P.P.C. 6 months' R.I. And a fine of Rs.1,000 each or in default 3 months each.
(3) Under Section 324/34, P.P.C. 6 months' R.I. And a fine of Rs.1,000 each or in default 3 months each.
7. All the sentences were ordered to run concurrently, and the fine, if recovered, was ordered to be paid to the legal heirs of the deceased. The High Court convicted the respondents under Section 302/34, P.P.C. And sentenced to imprisonment for life each. The sentence of fine and award of compensation ordered to be the same.
8. Learned counsel for the petitioner has submitted that once the High Court came to the conclusion that the accused had committed the culpable homicide amounting to murder, then the normal penalty should have been awarded. Therefore, the order of the High Court to that extent is illegal and needs reversal by this Court. The High Court has not given any reason for not awarding the normal sentence as provided under Section 302, P.P.C.
9. In para. 38 of the judgment it has been stated that "after anxious consideration we are of the view that this is not a case for imposing the capital punishment". Though the High Court has not recorded any reason but we are not inclined to grant Leave to Appeal for the following reasons:---
(i) The respondents had been convicted under section 304, P.P.C. By the Additional District Judge on 21-12-1986. The High Court convicted the respondents under Section 302/34, P.P.C. On 30-10- 1988. In case the High Court had awarded the capital punishment, the respondents would have the benefit of the Presidential Order of Amnesty after 7-12-1988. The sentence awarded by the High Court is legal.
(ii) The deceased Muhammad Ashraf was injured on 15-6-1985 and died on 1-7-1985. The deceased had received the injuries on left leg upper part and according to the doctor who performed the postmortem, the leg was amputated and wound was not stitched with foul swelling done by the surgeon after developing gangrine of left foot. He observed that this injury was covered by antiseptic dressing and it was mentioned in the bed head ticket that the gangrine was developed for which amputation was done.
10. In view of what has been stated above, we do not see any force in this petition. The same is dismissed and leave to appeal is refused.