' MANZOOR HUSSAIN SIAL, J.---Altaf Hussain petitioner was convicted on 19-2-1992, by Additional Sessions Judge, Bahawalpur, under section 302, P.P.C., for the murder of Allah Bakhsh. He was sentenced to death with a fine of Rs,5,000 or in default to suffer R.I. For one year. He was also directed to pay Rs,5,000 to the legal heirs of the deceased as compensation failing which to undergo R.I. For six months.
2. On appeal the Lahore High Court (Bahawalpur Bench) maintained his conviction under section 302, P.P.C. But altered the sentence of death to imprisonment for life. The amount of compensation payable to the heirs of the deceased was enhanced from Rs,5,000 to Rs,20,000. The convict (hereinafter referred to as petitioner) as also the complainant through these petitions separately seek leave to appeal from this Court against the aforesaid judgment of the Lahore High Court.
3. The occurrence had taken place at 9-30 a.m. On 30-8-1991, in the house of Altaf Hussain petitioner. The incident was reported to police by Zulfiqar Ali P.W. 4, brother of the deceased on the same day at 10-30 a.m. Which led to the registration of case vide F.I.R. No, 334/1991 by Muhammad Ramzan, S.H.O., P.W. 9, at Police Station Hasilpur, District Bahawalpur.
4. On the fateful day, the deceased wanted to replace 'Katcha' bricks with Pacca' bricks of the common wall with the house of the petitioner. The petitioner restrained him from doing so but on his insistence the petitioner gave three Chhuri blows to the deceased, who succumbed to the injuries on way to Hospital.
5. Dr. Javed Iqbal P.W. 8 conducted autopsy on the dead body of Allah Bakhsh, on the same day and found following injuries:-
(1) Stab wound 3 c.m. x 1 c.m. Going deep on lacerated aspect of left deltoid.
(2) Stab incised wound 4 c.m. x 1 c.m. Going deep on the margin of left lower rib near the costal cartilage medial to the line of nipple.
(3) Stab incised wound 2 c.m. x 1 c.m. Going deep on the left supra clavicular region near the neck.
6. The investigating officer arrested the respondent on 31-8-1991, and on 3-9-1991 while in police custody he led to the recovery of Chhuri P/1, which was found by the expert to be stained with human blood.
7. At the trial the petitioner in his statement under section 342, Cr.P.C. Pleaded not guilty to the murder charge and denied the recovery of Chhuri P/1, at his instance. He, however, admitted that the deceased was son of his real uncle Allah Rakha. He stated that the deceased, armed with Churri alongwith his brother and father trespassed into his house and started grappling with him. In that process he received injuries with his own Chhuri.
8. The High Court found that the ocular account furnished by P.W.5 and P.W.6 inspired confidence and received full corroboration from medical and evidence of recoveries. The presence of the eye- witnesses being natural and the parties closely related inter se there could be no reason to substitute the petitioner for the real culprit. It was case of single accused and occurrence had taken place in broad daylight witnessed by the P.Ws whose depositions are consistent and ring true. The defence version was considered by the trial Judge as also the learned High Court, but rejected for valid reasons.
9. After arguing the case for some time learned counsel for the complainant contended that there was no mitigating circumstance to withhold the award of normal penalty of death on the petitioner. We have considered this aspect of the case but cannot help expressing that the reason advanced by the High Court in awarding lesser penalty cannot be brushed aside. There is nothing on the record to show that the deceased got prior permission of the petitioner to convert the 'Katcha' common wall to 'Pacca' wall and raise its height. The petitioner resisted the raising of the wall, .Which became the immediate cause of occurrence.
10. The upshot of the above discussion is that we are not persuaded either to acquit the petitioner of the murder charge proved against him or to enhance the sentence awarded to him.
Consequently both these petitions fail and are dismissed.