HAMID Versus THE STATE

RANA BHAGWANDAS, J.‑‑‑ In this appeal, leave was granted only to consider the question of quantum of sentence in view of the fact that on the basis of same set of evidence remaining co‑accused, particularly accused Shabbir, had been acquitted of the charge.

2. Precisely stated, case of the prosecution appears to be that on the fateful day, appellant along with others committed the murder of deceased Mst. Bashiran Bibi and caused injuries to Mst. Fatima, Mgt. Jannat Bibi and Mst. Mastooran Bibi. At the conclusion of the trial, remaining accused were acquitted of the charge, mainly on the consideration that medical certificates ill respect of injuries were not produced. As regards Mst. Sardaran Bibi, it was found that no incriminating evidence had been adduced on record. With regard to co‑accused‑Shabbir, it was held that two fatal wounds were caused by the appellant while Shabbir being his real brother was falsely involved.

3. We have heard Mr. M.A. Zafar, learned Advocate Supreme Court for the appellant and Ch. Ghulam Ahmad, learned Advocate Supreme Court on behalf of State. M. M.A. Zafar has raised two‑fold submissions in respect of plea for mitigation of sentence. Firstly, that the husband of the deceased i.e. P.W. Khalid Hussain has compounded the offence with the appellant though other legal heirs i.e. daughters, mother and father of the deceased have not joined the compromise. The next ground urged by the learned counsel is that the part played by the appellant in the commission of the murder of the deceased did not solely attribute towards the unnatural death of the deceased in that co‑accused‑Shabbir was equally stated to have fired shots at the deceased.

4. Adverting to the first submission of the learned counsel, we are least impressed by it as the conviction of the appellant was recorded under Tazir in terms of section 302(b), P.P.C. and not for Qatl‑i‑Amd liable to Qisas within the contemplation of section 302(a), P.P.C. Furthermore, witnesses, examined at the trial were not subjected to Tazkiyah‑al‑Shahood. Mr. Zafar relied upon an unreported judgment of this Court in Criminal Petition for Leave to Appeal No.776 of 2001, decided on 20‑3‑2002, in which Lahore High Court had converted the sentence of death to imprisonment for life, which was' not interfered with by this Court. The precedent is distinguishable for the reason that in the said case, apart from partial compromise, High Court had altered the sentence on the consideration that the convict had committed the murder in order to save his family honour and reputation.

5. Reverting to the second submission, the benefit of acquittal of co accused‑Shabbir cannot be extended to the appellant, inasmuch as, leave to appeal was not granted to reappraise the merits of the evidence. Acquittal of co‑accused‑Shabbir for valid reasons, recorded by the trial Court and upheld by the High Court does not, in any event, furnish a ground for mitigation of sentence, which is entirely a different issue.

6. For the aforesaid facts and reasons, appellant having been found solely responsible for the callous murder of the deceased, no leniency in the matter of sentence is warranted in the circumstances of the case.

Resultantly, appeal fails and is hereby dismissed.

N.H.Q./H‑71/S

Appeal dismissed.