' MUNAWAR AHMED MIRZA, J.---These appeals, by leave of the Court, are directed against judgment dated 19-6-1995 passed by Lahore High Court in Criminal Appeals Nos.866 of 1991, 934 of 1991, 85 of 1982; Criminal Revision No,132 of 1993 and Murder Reference No,437 of 1991.
2. Relevant facts culminating into present appeals have been appropriately described in the impugned judgment, therefore, need not be reiterated because same would not be for required detailed consideration on account of limited scope within the purview of leave granting order of this Court dated 12th September, 1995. It may, however, be mentioned that appellants Waris Ali alias Dulli and Muhammad Khan of Criminal Appeal No,428 of 1995 and Khurshid Ahmad, appellant in Criminal Appeal No,492 of 1995, alongwith Umar Hayat (minor aged 15 years) were sent up for trial before Additional Sessions Judge, Faisalabad, under section 302/307/34, P.P.C. For causing murders of deceased Ghulam Abbas and deceased Muhammad Mushtaq which had taken place on 5-6-1989 at 5-15 a.m. Within the area of Chak No,73/G.B., Jaranwala, arising from F.I.R. No,270 of 1989 Police Station Jaranwala, District Faislabad.
3. The trial Court after recording evidence and reappraisal of entire material brought on record expressly observed that prosecution had duly established accusations against appellants Waris Ali alias Dulli. Muhammad Khan and Khurshid Ahmad. Therefore, on the reasonings contained in judgment dated 9-7-1991 they were found guilty and convicted under section 302/34, P.P.C.
However, as regards quantum of punishment appellants Waris Ali alias Dulli and Muhammad Khan were awarded penalty of death besides payment of fine and compensation because no mitigating circumstances existed in their favour. Whereas appellant Khurshid Ahmed was sentenced to life imprisonment besides fine of Rs,20,000 or in default further R.I. For six months availing benefit of section 382-B, Cr.P.C. Fourth accused Umar Hayat was, however, acquitted.
4. Appellants had assailed their conviction and sentence before Lahore High Court, whereas Revision Petition was also filed seeking enhancement of sentence awarded to appellant Khurshid Ahmed. The acquittal of accused Umar Hayat was also simultaneously challenged. Murder Reference No,437 of 1991 seeking confirmation of death penalty awarded to appellants Waris Ali and Muhammad Khan also came up for hearing alongwith above matters. Division Bench of Lahore High Court eventually had dismissed these appeals as well as revision petition by common judgment dated 19-6-1995. Operative portion whereof is reproduced below:-- "18. It was further contended by the learned counsel for the appellants, with great emphasis, that since the eye-witnesses remained unhurt, their very presence is, therefore, doubtful. It is in prosecution case that the situation was already tense between the parties due to election rivalry but it became more tense from the day when Mushtaq and Abbas deceased incurred Khurshid, the elected candidate with brick-bats. These two person were, therefore, the eye-sore of Khurshid and his associates. Even otherwise, he was (50) and comparatively young whereas Ghulam Qadir was an old man of 60. When the accused had focused their attention towards the two deceased and had resorted to firing, in that melee others got secured in the bushy area which had provided them safe haven. Although Khurshid had attempted at the life of Ghulam Qadir, nevertheless, luck appeared to have saved him. The eye-witnesses have given a clear and fair account of the occurrence. The mere fact that all of the four and five persons had not suffered injuries does not show that they were not present at the spot. The objection has no force and is hereby rejected.
19. Lastly, it was contended on behalf of the appellants that in this case when enmity between the two sides is not disputed, the partisan evidence led by the prosecution should have been assessed and weighed with more care and caution. As discussed above, Ghulam Qadir had gone to see the Maila of Baba Lal Shah alongwith his son, nephews and a friend Rana Hanif. He was returning to the village alongwith his mates when attacked by the accused. The recovery of the blood-stained earth from the alleged place of occurrence, lifting of the dead bodies as claimed by the prosecution from the spot; earlier enmity and the motive having been established, let us see whether the defence plea fits in the circumstances and negates the prosecution version.
Muhammad Khan and Waris, both had virtually taken no defence plea and had stated that since they were the partymen of Khurshid, they had been falsely implicated due to enmity. They stated that it was nocturnal occurrence and some enemy of Ghulam Qadir had attacked and killed Ghulam Abbas and Mushtaq. Since they were already inimical to them, the complainant falsely roped them in. The occurrence as alleged and proved by the prosecution had taken place during the sunlight, therefore, there was no question of mistaken identity. This defence plea appears to be merely hollow. The prosecution has proved their case beyond reasonable doubt.
20. For the afore going reasons, we see no infirmity of flaw in the prosecution case and find no ground or justification warranting our interference in the sentences passed by the trial Court nor we have been able to find any reasonable ground for enhancement of the sentence awarded to Khurshid accused because the fatal injuries had been attributed to Muhammad Khan and Waris appellants."
5. Convicts Waris Ali alias Dulli and Muhammad Khan had challenged above conviction and sentence through Criminal Petition for Leave to Appeal No,308-L of 1995. This Court vide Order, dated 12th September, 1995 found that conviction awarded to above two appellants under section 302, P.P.C. Did not warrant interference. However, leave was granted only with regard to quantum of sentence. Leave granting order dated 12-9-1995 is reproduced below:- "We have heard the learned counsel for the petitioners."
2. We do not see any valid reason to interfere with the impugned judgment so far as conviction of the petitioners under section 302, P.P.C. Is concerned.
Leave to appeal is, however, granted only to the extent of sentence to examine whether in the circumstances of the case, particularly when there was no immediate cause of attack on the deceased, the sentence of imprisonment for life was not the appropriate sentence and would not have met the case."
6. It may be seen that convict Khurshid Ahmed also filed a belated Petition for Leave to Appeal No,378-L of 1995 assailing his conviction and sentence wherein leave was also granted in the following terms:-- "Order ' Leave to appeal has already been granted against the same judgment as has been challenged in this petition. Leave to appeal is also granted in the above petition on the same grounds. Appeal arising out this petition shall be heard alongwith appeal arising out of connected Petition No,308-L 1995."
7. Mr. M.A. Zafar, Advocate Supreme Court vehemently challenged the quantum of sentence awarded to appellants Waris Ali alias Dulli and Muhammad Khan. Learned counsel emphatically argued that above appellants had neither anything common with co-convict Khurshid Ahmed nor could be characterized as his partymen; therefore, observations in this behalf appearing in para. 16 of the impugned judgment were ex facie erroneous and has materially prejudiced their stand specially while awarding extreme penalty. On examination of record apparently there does not exist any material which may tacitly suggest element of interdependence or connection of above appellants with co-convict Khurshid Ahmed. We are, therefore, inclined to agree with Mr. M.A. Zafar, Advocate Supreme Court, that case of above appellants specially for quantum of sentence be assessed on the basis of accusation, which are exclusively relatable to them.
8. Learned counsel next contended that absolutely no motive was factually alleged against appellants Waris Ali alias Dulli and Muhammad Khan, whereas motive against co-convict about election rivalry and continuing hostility amongst the parties has not been effectively established by the prosecution, therefore, extreme penalty of death could not be lawfully imposed. He has strengthened his contentions by referring numerous reported judgments. This Court in case Mst.
Roheeda v. Khan Bahadur (1992 SCM R 1036) holding that motive alleged in the case was not fully provided had converted extreme penalty of death to imprisonment for life. In another case Muhammad Bashir v. Khalid Mehmood (1994 SCM R 1096) while observing that prosecution had failed to establish the motive, the Court ruled that parties appeared to have withheld real cause leading to the incident, thereby said situation was deemed mitigating circumstance, and sentence was converted to imprisonment for life. Similar principle has been enunciated in PLD 1995 SC 590 (Muhammad Khan v. Zakir Hussain and others).
9. Whereas Mr. Dil Muhammad Tarar, Advocate Supreme Court appearing for the State vehemently opposing the appeal maintained that in the present case against above appellants, neither motive has any relevancy nor same is material for establishing criminal charge and, thus, referred to observations in State v. Waqar Ahmad (1992 SCM R 950).
10. There is no denying the fact that prosecution has not ascribed any motive to appellants Waris Ali and Muhammad Khan for causing murders of Muhammad Mushtaq and Ghulam Abbas.
Obviously involvement of above appellants and co-convict Khurshid Ahmed is on independent footings as manifestly reflected from ocular evidence which has been firmly believed. The guilt of the appellants has been duly proved on the acceptance of evidence as observed in the impugned judgment as well as leave granting order dated 12-9-1995. Therefore, on the dictum laid 1971 SCM R 368 (Ghuncha Gul v, State), the requirement of motive and its discovery as regards above two appellants is totally irrelevant and unwarranted. This Court in case of Fazal Ghafoor v. State (1993 SCMR 1136) whereby ocular evidence has been deemed to be sufficient to establish the guilt of offenders whereby enactment of punishment by the High Court converting into Death Penalty was confirmed and validated without resorting to effect about uncertainty of motive.
It is well settled that on proof of accusations for causing murder the Courts in the absence of extenuating circumstances should normally award Death Penalty. This aspect is well-enunciated in cases (i) PLD 1976 SC 452 (Muhammad Sharif v. Muhammad Javed alias Jeda), (ii) 1998 SCM R 862 (Mst. Bismillah v. Muhammad Jabbar) and (iii) 1998 SCM R 1976 (Pervaiz v. State). On the scrutiny of entire record we are fully satisfied that accustions made against appellants Waris alias Dulli and Muhammad Khan are quite independent and distinguishable from co-convict Khurshid Ahmed.
Ocular testimony mentions about infliction of fatal injuries by the above two appellants to deceased Ghulam Abbas and Mushtaq. Therefore, keeping in view all the, factors both the Courts below have awarded legal sentence to the appellants which in the absence of any extenuating factors or infirmity, does not warrant interference. Criminal Appeal No,428 of 1995 therefore, has no merits.
11. Now adverting to Criminal Appeal No,492 of 1995 filed by Khurshid Ahmed it may be seen that leave was granted by this Court on 14-11-1995 on the same grounds which appeared in above- referred leave granting order dated 12-9-1995 passed in Criminal Petition for Leave to Appeal No,308L of 1995 (converted into Criminal Appeal No,428 of 1995). It is quite apparent that conviction under section. 302, P.P.C. Was explicity maintained and was held to be based on valid grounds which did not warrant interference. The Court was mainly to examine question relating to quantum of sentence which factually does not arise in the appeal filed by Khurshid Ahmed, Accordingly we are inclined to recall leave granting order dated 14-11-1995.
As a result of above conclusions both the appeals stand dismissed.