ABDUL MALIK and another vs THE STATE and others

' SYED JAMSHED -ALI, J.--- This judgment will dispose of Criminal Appeal No,324 of 1995 by the complainant and Criminal Appeal No,325 of 1995 by Ateeq-ur-Rehman, convict which arise out of the following circumstances.

2. Ateeq-ur-Rehman (ii) Samual Masih (iii) Manzur Hussain (iv) Amir Hamza (v) Muhammad Ayaz

(vi) Muhammad Arif (vii) Muhammad Shafiq and (viii) Muhammad Aslam, were tried for offences under sections 302/147/149/440 of the P.P.C. Ateeq-ur-Rehman was sentenced to death while accused No, (ii) to (v) aforesaid were sentenced to life imprisonment. All of them were fined as well as directed to pay compensation of Rs,10,000 each to the legal heirs of the deceased. They were also convicted and sentenced under sections 147 and 440 of P.P.C. Accused Nos.(vi) to (viii) were, however, acquitted. This was vide judgment, dated 14-10-1990 of the Additional Sessions Judge, Gujranwala. The F.I.R. In this case was lodged by Abdul Malik, P.W.14, on 15-4-1998, and in the incident Javed Iqbal, a nephew of the complainant was murdered. The motive for the homicide, as alleged in the F.I.R., was that land measuring one Kanal had fallen to the share of the mother of the deceased but his maternal-uncles were not prepared to part with it and exhorted their son to murder Javed Iqbal on which the incident occurred which was described in details in the F.I.R.

3. The five convicts filed Criminal Appeal No,912 of 1990, while Criminal Revision No,100 of 1991, was filed by the complainant for enhancement of the sentence of Samual Masih, Manzur Hussain, Amir Hamza and Muhammad Ayaz. Criminal Appeal No,912 of 1990 of the convicts was partly allowed by the learned High Court inasmuch as that while the death penalty of Ateeq-ur-Rehman was converted into life imprisonment, the other 4 were acquitted. The complainant as well as accused approached this Court, on which leave was granted vide order, dated 5-9-1995.

4. The learned counsel for the appellant has vehemently contended that the learned High Court, in para.8 of the impugned judgment believed the presence of P.W.15 and P.W.16 but in para.15, directed acquittal of the aforesaid four accused persons. The, findings in paras.8 and 15, were mutually destructive, after the finding that the witnesses supported the occurrence, there was little justification for acquitting the accused and their acquittal was based on conjectures. As far as reduction of sentence of Ateeq-ur-Rehman is concerned, his contention was that no such plea, which was the basis of reduction of his sentence, was taken by him.

5. Mr. M.A. Zafar, Advocate, represents the respondents. He has defended the impugned judgment.

His contention was that at the time of occurrence, Ateeq-ur-Rehman was 14/15 years of age which was yet another consideration for clemency. He also submits that he has already undergone the sentence and released. Reliance was placed on Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and Abdul Malik and others v. The State and others PLD 2006 SC 365. Mr. Dil M. Tarar, Advocate, appeared for the State and supported the High Court judgment.

6. We have considered the submissions made by the learned counsel for the parties. It may be observed, at the outset, that this Court is very slow to interfere in a judgment of acquittal. We have carefully examined the record including the impugned judgment. Detailed reasons for acquittal of the aforesaid 4 accused have been recorded in para.14 according to which presence of the complainant (P.W.14),' Muhammad Javed (P.W.15) and Pervaiz Akhtar (P.W.16), at the time of occurrence was doubted. It was found that injuries Nos.2 and 3 were the result of one shot while injury No,4 was also attributed to Ateeq-ur-Rehman. It was also found that injury No,5 could not be attributed to Muhammad Ayaz and Manzur Hussain in terms of its location, so was the case of Amir Hamza while nothing had been elucidated during cross-examination from any of the P. Ws. As to the alleged dismantling of roof by Samual Masih. We have also noticed that only four empties of the shot gun were recovered from the spot which wedded with the gun used by Ateeq-ur-Rehman in the commission of the crime. Therefore, we are of the view that the reasons directing acquittal of the aforesaid four accused persons are neither perverse nor arbitrary to warrant any interference.

7. As far as Ateeq-ur-Rehman is concerned, the basis for reduction of his sentence was that he acted under the influence of his elders, We have also noticed that at the time of examination under section 342, of Cr.P.C. He gave out his age as 17 years, His statement was recorded on 25-9-1990 while the occurrence had taken place on 15-4-1988, more than 2 years, had elapsed since then which means that on the date of occurrence he was about 15 years of age. Nobody questioned the age given out by the accused. As far as finding of the learned High Court for mitigation of the sentence of Ateeq-ur-Rehman is concerned, it was alleged even in the F.I.R. That Muhammad Aslam, Akram and Muhammad Shafiq maternal-uncles (Mamu) of the deceased, used to exhort his son to murder Javed Iqbal.

8. For what has been stated above, we find no merit in this appeal which is accordingly dismissed.

Criminal Appeal No,325 of 1995

9. Ateeq-ur-Rehman, the appellant has been released, after serving out life imprisonment. This appeal does not raise any live issue and we are not persuaded to decide it on merits. Disposed of accordingly.