FAQIR MASIH vs MUBARIK MASIH And Other

ORDER

1. MUHAMMAD AFZAL ZULLAH J.--In these two petitions, leave to appeal has been sought from judgment dated 19-4-1982 of the Lahore High Court; whereby a criminal appeal arising out of a murder case, was partly allowed. The sentence of death awarded to Mubarik Masih (respondent No.1 in Criminal Petition No.209 of 1982, filed by the complainant for enhancement of sentence) under section 302, P.P.C. Was reduced to life imprisonment--his conviction and sentence under section 307, P.P.C., was maintained. Amanat Masih and Arif Masih accused who are no more parties in these petitions were acquitted by the trial Court. Mubarik Masih has filed time-barred Jail Petition No.86-R of 1982 against his conviction and sentence, as altered in the High Court judgment.

2. There was no previous enmity between the parties. The occurrence took place at 2 p.m. On 12-11- 1978. At 11 a m. On the same day, there was exchange of abuses between Javed Masih deceased and Barkat, injured P.W. (a cousin of the deceased) on the one side and Mubarik convict and Amanat Masih the acquitted accused on the other; because, according to the prosecution, the accused-side had teased Mst. Rani, a relation of the complainant-side. Three hours later, Mubarik Masih convict when armed with a Dagger and his two companions (acquitted accused) Amanat Masih and Arif Masih with empty hands attacked the deceased and Barkat P.W. Mubarik caused injuries to both of them. The deceased later on died in the hospital. During investigation Shirt P.2 and Dagger P.7, were recovered at the instance of Mubarik convict. They were found to have been stained with human blood.

3. At the trial, the ocular testimony furnished by Barkat injured P.W. And the incriminating recoveries were relied upon from the prosecution-side. The defence plea was of denial and false implication.

4. The learned trial Court extended benefit of doubt to Amanat Masih and Arif Masih. Mubarik Masih was, however, convicted under sections 302 and 307, P.P.C. Amongst other sentences, he was awarded death sentence which, as already indicated was on appeal, altered to life imprisonment.

5. Jail Petition is barred by time. Moreover, after examination of the case, we have not been able to find any justification for interference in so far as the conviction and sentence of Mubarik Masih are concerned. His petition (Jail Petition No. 86-R of 1982) is accordingly dismissed.

6. Learned counsel for the petitioner in the other petition fort enhancement of sentence has contended that the two reasons on account, of which the High Court reduced the sentence; namely, age of the convict being 15 years at the time of occurrence and the failure of the' motive alleged by the prosecution, could not be deduced from the evidence. He stated that although Mubarik Masih had asserted has age to be 15 years, the trial Court had estimated it to be more than that. On the motive, he contended that the evidence has not been correctly appraised.

7. There is no positive assessm ent by the trial Court either on the record or in the impugned judgment to show that the learned trial Judge had made any estimate of the age of Mubarik Masih. It is, therefore, not possible to set aside the judgment of the High Court in so far as this aspect is concerned. Moreover, the appreciation of evidence by the High Court regarding motive does not suffer from any infirmity and thus, there is no justification for this Court to re-appraise the evidence in that behalf. The motive, as found by the High Court, was shrouded in mystery.

8. No case has been made out for enhancement of sentence, leave to appeal in the second petition, Cr.P. No. 209 of 1982 is also refused.