KHIZAR HAYAT vs The STATE

ORDER

' ASIF SAEED KHAN KHOSA, J.---Khizer Hayat appellant was tried in case F.I.R. No,189 registered at Police Station Satiana, District Faisalabad on 14-5-2000 in respect of an offence under section 302, P.P.C. Read with section 34, P.P.C. And vide judgment dated 26-6-2002 handed down by the learned additional Sessions Judge, Jaranwala, District Faisalabad he was convicted for an offence under section 302(b), P.P.C. Read with section 34, P.P.C. And was sentenced to imprisonment for life as Ta'zir and to pay a sum of Rs,25,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to him. The appellant challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No, 285 of 2006 which was heard and dismissed by a learned Judge-in-Chamber of the said Court on 23- 4-2008. Hence, the present appeal by leave to this Court granted on 7-7-2010.

2. We have heard the learned counsel for the appellant and learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the record of the case with their assistance.

It has been argued by the learned counsel for the appellant that the occurrence in this case had taken place before daybreak; the source of light at the spot had not been established by the prosecution; the eye-witnesses produced by the prosecution have already been disbelieved to the extent of two co-accused of the appellant; the same evidence cannot be said to be reliable vis-a- vis the appellant, particularly when the same has already been discarded to the extent of his two co-accused; the motive set up by the prosecution has already been ruled out of consideration by the learned courts below; and thus, the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to be acquitted by this Court. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has maintained that the prosecution had succeeded in establishing its case against the appellant beyond reasonable doubt and the learned courts below have already felt satisfied in that respect and, therefore, there is hardly any occasion for this Court to interfere in the finding of fact concurrently recorded by the learned courts below vis-a-vis the guilt of the appellant.

3. After hearing the learned counsel for the parties and going through the record we have observed that the F.I.R. In this case had been lodged with sufficient promptitude and the appellant had been nominated therein as the principal perpetrator of the murder of Basara deceased. According to the allegation levelled by the prosecution the appellant had trespassed into the house of the deceased at Fajar prayer time and after raising a lalkara he had given two hatchet blows to the deceased which landed on his neck, chin and cheek. The medical evidence had provided full support to the ocular account furnished in this case by Allah Yar (P.W.4) and Mushtaq (P.W.5) who were natural witnesses of the incident being inmates of the house wherein the occurrence had taken place. Mere relationship of the said eye-witnesses with the deceased was not sufficient to discard the testimonies made by them before the learned trial court. A blood-stained hatchet had been recovered from the appellant's possession during the investigation which had provided corroboration to the ocular account. Both the learned courts below had undertaken an in-depth and exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding the appellant's guilt. The learned counsel for the appellant has remained unable to point out any particular or specific misreading or non-reading of the evidence on the part of the learned courts below so as to warrant interference in the matter by this Court. The appellant has already been treated leniently in the matter of his sentence.

4. For all these reasons this appeal is dismissed with the slight modification of the impugned judgment to the effect that in case of his failure to pay the amount of compensation to the heirs of the deceased the appellant shall undergo simple imprisonment for six months instead of rigorous imprisonment of six months ordered by the learned courts below.