' ABDUL HAMEED DOGAR, J.---This appeal by leave of the Court is directed against the judgment dated 27-10-1999 passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal Appeal No,46 of 1996 whereby appeal of appellants Muhammad Shahid and Muhammad Ijaz was dismissed and the sentence of death awarded to appellant Muhammad Shahid was confirmed, whereas imprisonment for life awarded to Muhammad Ijaz was maintained. However, the appeal in respect of Tariq Mehmood was accepted and he was acquitted of the charges.
2. At the very outset Mr. M.Nasim Kahsmiri, counsel for the appellants did not press the appeal in respect of appellant Muhammad Ijaz, who according to him has been released after serving out his sentence. Accordingly the same stands dismissed as not pressed.
3. Briefly, stated, the facts of the case are that deceased Nasir Mehmood the grandson of complainant Capt. Muhabbat Hussain and a student of LL.B. Used to reside with him after the death of his father. On 16-9-1994 at about 5-30 p.m. Nasir Mehmood went to play football along with his brother Zahid Mehmood on the ground of a Lalkurti High School where he had an altercation with appellant Muhammad Shahid, co-convict Muhammad Ijaz and acquitted accused Tariq Mehmood. Rashid Mehmood and others intervened and separated them. While leaving, acquitted accused Tariq Mehmood issued threats to avenge the insult. On the next day i.e, 17-9-1994 at about 5-15 p.m. Deceased Nasir Mehmood went to play football on a vacant plot in the nearby street.
Since complainant had an anxiety about deceased, therefore, he along with his grandson Rashid Mehmood went behind him. When they reached on the plot they saw acquitted accused Tariq Mehmood armed with a revolver, appellant Muhammad Shahid carrying a .30 bore pistol and co- convict Muhammad Ijaz with a cricket bat. Acquitted accused Tariq Mehmood exhorted his companions to teach a lesson to deceased, whereupon appellant Muhammad Shahid fired two successive shots at him which hit him at his abdomen near umbilicus and the left thigh. He fell down on the ground, whereafter co-convict Muhammad Ijaz caused him bat blows. In order to save deceased, P.Ws. Stepped forward but acquitted accused Tariq Mehmood fired from the revolver scaring them away. While being shifted to Civil Hospital, Rawalpindi, Nasir Mehmood expired on the way.
4. Leave to appeal was granted by this Court vide order dated 20-7-2000 to re-examine the quantum of sentence only.
5. Learned counsel for the appellant mainly contended that prosecution has failed to establish motive in the case. According to him it was the acquitted accused Tariq Mehmood who picked up quarrel with the deceased a day prior to the incident over the matter of football game and his acquittal from the charges proves that a false motive was set up. What transpired between deceased and appellant Shahid Mehmood and co-convict Muhammad Ijaz and acquitted accused Tariq Mehmood immediately before the incident is shrouded in mystery which would be a strong extenuating circumstance to alter the capital punishment.
6. On the other hand, Ch. Muhammad Akram, counsel for the respondent/State vehemently controverted the above submissions and argued that in the instant case prosecution has been able to establish motive against the appellant beyond any reasonable doubt, therefore there is not any mitigating circumstance to reduce the sentence.
7. We have given anxious thought to the contentions raised at Bar and have gone through entire record and proceedings of the case in minute particulars.
8. Admittedly the incident did not take place all of a sudden but was pre-planned one. As per evidence on record fight had taken place between deceased and acquitted accused Tariq Mehmood, co-convict Muhammad Ijaz and appellant Muhammad Shahid a day prior to the incident at about 5-15 p.m. While playing football game on the ground of Lalkurti High School and they were separated by Rasheed and others. At that time said acquitted accused Tariq Mehmood had issued threats to the deceased that they would avenge the insult. It was within twenty-four hours that all of them appeared at the spot and appellant fired two successive shots at the deceased resulting in his instant death. Both Courts below have elaborately discussed the aspect of awarding death sentence to the appellant by establishing motive fully against him. There seems to be no reason to interfere with their concurrent findings. Conviction once recorded under section 302, P.P.C. In the case of premeditated and concerted attack launched with a particular motive to commit murder, normal penalty should be death unless mitigating circumstances exist on record.
This Court in the case of Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 disapproved the tendency to find a laboured pretext to alter a sentence of death to imprisonment for life.
For the foregoing reasons and because there are no mitigating circumstances on the record, instant appeal is dismissed and the conviction and sentence recorded against appellant Muhammad Shahid is maintained.