' FAQIRMUHAMMAD KHOKHAR, J.---The petitioners, in both the petitions, seek leave to appeal against judgment dated 27-11-2001 passed by a Division Bench of the Lahore High Court, Lahore in Criminal Appeal No,62 of 1995 and Murder Reference No,83 of 1995.
2. Briefly stated, the facts of the case are that on 20-9-1991 at9-00 a.m. Nausherwan P.W.13 (petitioner in Criminal Petition No,20-L of 2002) lodged F.I.R. (Exh.P.U.) at Police Station Lilla, District Jhelum. He stated therein that at 8-30 a.m. On the same day he alongwith his brother Fateh Khan (deceased), Muhammad Hayat and Muhammad Siddique sons of Fateh Muhammad went, on a tractor driven by Muhammad Shafi, to cultivate the land which was on lease with Fateh Khan. As soon as Muhammad Shafi, tractor driver, started ploughing the fields the following accused variously armed emerged there:--
(1) Muhammad Akbar Jalal-ud-Din armed with hatchet,
(2) Abbas alias Bhutto son of Muhammad Akbar Jalal-ud-Din with gun .12 bore,
(3) Muhammad Aslam son of Sher Khan with gun .12 bore,
(4) Ghulam Rasool son of Sher Khan with gun .12 bore,
(5) Muhammad Nawaz son of Saif Ali with hatchet,
(6) Saif Ali son of Fateh Ali with hatched,
(7) Waris son of Karam Ali with hatchet,
(8) Muhammad Mumtaz son of Ghulam Qadir with hatchet,
(9) Manzoor son of Faiz Bakhsh Mian with gun .12 bore,
(10) Ali Muhammad son of Faiz Bakhsh with hatchet,
(11) Muhammad Nawaz son of Eidhi Khan with rifle .7 MM, and
(12) Muhammad Ramzan son of Eidhi Khan with gun .12 bore.
' He further stated that the aforesaid accused raised a Lalkara and attacked Fateh Khan.
Muhammad Akbar Jalal-ud-Din dealt two hatchet blows at the right ear and forehead of Fateh Khan deceased. Another hatchet blow by Muhammad Nawaz landed on the neck of the said deceased. Two hatchet blows dealt by Saif Ali and Waris Ali respectively hit the right side of head and backside of the neck of Fateh Khan deceased. Two hatchet blows of Ali Muhammad and Muhammad Mumtaz hit Fateh Khan deceased on his left palm. Two shots respectively fired by Ghulam Rasool and Muhammad Ashraf hit the chest whereas a fire shot fired by Abbas hit the back of Fateh Khan deceased. Another shot fired by Muhammad Ramzan hit the said deceased at his right shoulder who fell down. The petitioner Muhammad Aslam and co-accused Muhammad Nawaz fired two shots from their weapons which hit Muhammad Shafi deceased at his left chest and the left arm respectively. Muhammad Shafi deceased alighted from the tractor and fell on the ground after covering 10-12 paces. Both Fateh Khan and Muhammad Shafi succumbed to their injuries at the spot. The motive for the occurrence was that fire-arm injuries were caused by Fateh Khan to Muhammad Afsar of the accused party about 8/9 months prior to the occurrence.
3. The Additional Sessions Judge, Jhelum by his judgment dated 14-3-1995 convicted the following accused under sections 302, 148, 149, P.P.C. And sentenced them as under:-- "(1) Muhammad Akbar Jalal-ud-Din (respondent herein) and Ghulam Rasool son of Sher Khan to death and a fine of Rs,25,000 each. In default of payment to undergo two years R.I.
(2) Waris Khan, Mumtaz Ahmad, Muhammad Nawaz son of Eihdi Khan, Muhammad Aslam, Muhammad Ashraf and Muhammad Nawaz son of Saif Ali to imprisonment for life and fine of Rs,25,000 each. In default of payment of fine, to suffer two years R.I. For murder of Fateh Khan.
(3) Waris Khan, Mumtaz Ahmad, Muhammad Nawaz son of Eihdi Khan, Muhammad Akbar Jalal- ud-Din, Muhammad Ashraf, Chulam Rasool and Muhammad Nawaz son of Saif Ali tp imprisonment for life for murder of Shafi Muhammad. They were further ordered to pay Rs,25,000 each. In default of payment thereof to two years R.I. For murder of Muhammad Shafi.
(4) Muhammad Aslam was sentenced to death.
(5) Under sections 148/149, P.P.C. All the accused were sentenced to two years R.I. Each.
' The amount of fine was ordered to be paid to the legal heirs of the deceased Fateh Khan and Shafi Muhammad, as compensation under section 544-A, Cr.P.C. All the sentences were ordered to run concurrently."
4. The rest of the accused namely Ibne Abbas alias Bhutto, Saif Ali, Manzoor Hussain and Ali Muhammad were acquitted on the ground that the prosecution had failed to prove the charges against them.
5. The aforesaid convicts filed Criminal Appeal No,62 of 1995 against their conviction and sentence.
A Murder Reference No,83 of 1995 was also made by the Additional Sessions Judge, Jhelum. The criminal appeal and the murder reference were disposed of by a Division Bench of the Lahore High Court by the impugned judgment dated 27-11-2001. The death sentence awarded to the petitioner Muhammad Aslam was confirmed. However, the death sentence of petitioner Muhammad Akbar Jalal-ud-Din was reduced to life imprisonment with benefit of section 382, Cr.P.C. And in his case the sentence of both counts was directed to run concurrently. The conviction and sentence awarded to Muhammad Ashraf and Muhammad Nawaz was maintained. Murder reference to the extent of Muhammad Akbar Jalal-ud-Din and,Ghulam Rasool had passed away in the meantime, was answered inthe negative answered in the affirmative qua the petitionerMuhammad Aslam.
6. The convicts Muhammad Aslam and Muhammad Akbar Jalal-udDin have filed Criminal Petition No,19-L of 2002 against the impugned judgment of their conviction and sentence. On the other hand, thecomplainant Nausherwan, P.W.13 has filed Criminal Petition No,20-L of 2002 for the enhancement of sentence of Muhammad Akbar Jalal-ud-Din.
7. The learned counsel for the petitioners in Criminal Petition No,19-L of 2002 submitted at the outset he did not press the petition qua the petitioner Muhammad Akbar Jalal-ud-Din who had already served out his legal sentence of life imprisonment. As regards convict Muhammad Aslam petitioner, the learned counsel argued that there were extenuating circumstances which deserved him a lesser sentence and that the sentence of death was not warranted. He contended that from the prosecution evidence it was clear that 8/9 months prior to the present occurrence Muhammad Afsar and Mst. Sardaran Bibi, who were related to the said convict, had been injured by the complainant party. Therefore, the instant case involved a family honour which was a mitigating circumstance for his lesser penalty. He relied on the case of Abdul Rashid v. The State 1989 SCM R
165. It was further contended that the recovery of gun .12 bore (Exh.P.5) was of no consequence as the empty did not match it. This fact also called for a lesser sentence for the convict Muhammad Aslam in view of the judgment in the case of Khawand Bakhsh and others v. The State and others PLD 2000 SC 1. The learned counsel lastly stated that there was a conflict of ocular evidence with the medical evidence as to the nature of injuries allegedly caused by the petitioner Muhammad Aslam convict.
8. On the other hand, the learned counsel for the petitioner/complainant Nausherwan, P.W.13 (Criminal Petition No,20-L of 2002) submitted that convict Muhammad Akbar Jalal-ud-Din having been found guilty of causing hatchet blows on the person of Fatah Khan deceased deserved normal penalty of death regardless of his old age of 75 years.
9. We have heard the learned counsel for the petitioners in both the criminal petitions. The petitioner Muhammad Aslam was attributed fatal fire-arm injury on the chest of Muhammad Shafi deceased. The ocular account given by the eye-witnesses including an independent witness Muhammad Siddique P.W.14 is supported by the medical evidence. The learned counsel failed to point out any direct and close relationship of the said convict with Muhammad Afsar and Mst.
Sardaran Bibi who had been allegedly injured by the complainant party earlier to the occurrence.
The mere fact that the empties taken from the spot did not match the gun recovered from the petitioner Muhammad Aslam by AM could not be a ground for a lesser penalty. The case against the petitioner Muhammad Aslam was proved, by the direct ocular and other evidence, beyond any reasonable doubt. We do not find any mitigating circumstance in favour of the aforesaid convict for reducing his sentence of death. The impugned judgment confirming his death sentence does not call for any interference by this Court.
10. As regards Muhammad Akbar Jalal-ud-Din convict, he has already served out his legal sentence of life imprisonment. He was found to be an old person of more than 70 years of age. In the F.I.R. (Exh.P.U.) he was alleged to have caused an injury on the person of Fateh Khan deceased by the use of blunt side of the hatchet. The High Court was justified in altering his sentence of death and reducing it to life imprisonment in the circumstances of the case.
11. For the foregoing reasons, we do not find any merit in these petitions and the same are dismissed accordingly. The death sentence of the petitioner Muhammad Aslam is maintained.