MEHBOOB AHMAD and another vs MUHAMMAD KHAN alias KALU and another

' RANA BHAGWANDAS, J.---These appeals by leave of the Court, are directed against judgment of the Lahore High Court, Rawalpindi Bench, dated 15-12-1998, passed in Criminal Appeal No,67, Murder Reference No,161 and Criminal Revision No,104 of 1996.

2. Leave to appeal was granted to consider whether the guilt of the convict-appellant had been proved beyond reasonable doubt and to scrutinize the true import and significance of his plea taken in his statement under section 342, Cr.P.C. And its effect over the prosecution case. Through the same order leave was also granted to complainant in order to consider in depth if the High Court was legally justified and the reasons recorded were valid and legal for converting the death penalty into life imprisonment.

3. Unfortunate episode leading to Qatl-e-Amd of Shakeel Ahmad deceased tool place on 17-10- 1992, at about 11-00 a.m. In the courtyard of the house of Abdul Sattar (P.W. 10), uncle of the deceased. Single fire-arm shot by means of 7-mm rifle, is attributed to appellant, Muhammad Khan, which proved to be fatal. Abdul Sattar (P.W. 10) and Khursheed Ahmad (P.W. 11) witnessed the incident. Shakeel Ahmad while injured recorded his dying declaration before he succumbed to his injuries in the hospital the same day, on the basis of which formal F.I.R. Was recorded.

4. Motive for the commission of the crime as given out in the F.I.R. Appears to be that Allah Dad, real brother of Muhammad Khan appellant, had lodged a case under section 324/34, P.P.C. Against the party of the deceased, which was found to be false and dismissed. After commission of the crime, appellant Muhammad Khan absconded and was arrested for the first time on 1-12-1994. After his arrest a 7 m.m. Rifle was recovered by the Investigating Officer at his pointaticn. On reference to the Fire-arms Expert, crime empty secured from the place of occurrence was found to be not fired from the weapon secured at the behest of the accused-appellant.

5. At the conclusion of the trial, trial Court found the ocular evidence consistent with medical evidence and motive of the commission of the crime. Evidence with regard to recovery was found to be of no value and dying declaration of the deceased was also disbelieved. Appellant was, however, found guilty of the charge and was convicted under section 302, P.P.C. For causing murder of Shakeel Ahmad by committing lurking house-trespass in the house of Abdul Sattar P.W.

He was sentenced to death and fine of Rs,50,000 or in default thereof to undergo R.I. For five years.

He was also convicted under section 452, P.P.C. And sentenced to four years' R.I. And fine of Rs,2,000 or one year R.I. In lieu thereof. Both the sentences were ordered to run concurrently.

6. On appeal against the conviction and sentence as well as murder reference by the State, learned Division Bench of the Lahore High Court vide impugned judgment dated 15-12-1998 maintained the conviction but altered the sentence from death to life imprisonment and substituted the sentence of tine with compensation payable to the legal heirs of the deceased in terms of section 544-A, Cr.P.C.

7. We have heard learned counsel for the parties at length and examined the material evidence as also the impugned judgment of Lahore High Court. At the very outset, it may be observed that the witnesses though related to the deceased on the face of the record do not appear to be inimically disposed towards the accused, so as to suspect their veracity. Their presence at the place of occurrence has been adequately accounted for and their evidence has been rightly accepted by the trial Court as well as the High Court. During lengthy cross-examination, appellant/convict has not been able to shatter the intrinsic value of both the ocular witnesses, namely, Abdul Sattar (P.W.

10) and Khursheed Ahmad (P.W. 11), which is otherwise in conformity with the facts and circumstances of the case and consistent with medical evidence furnished by the Medical Officer, who performed autopsy on the dead body of Shakeel Ahmad. Undoubtedly both the P.Ws. Frankly admitted rivalry between the parties over the Local Councils Elections held in 1987 and 1991 as well as the lodging of earlier case by Allah Dad, Subedar Major (Retd.) against the party of the deceased.

8. From the trend of evidence, however, it transpires that rivalry on account of elections of Union Councils between the parties per se is not sufficient to discard the prosecution version. Likewise, it is admitted that in the earlier case there was a compromise between the parties in the earlier case which ended in acquittal of the accused involved therein.

9. Be that as it may, we are fully convinced that the ocular evidence has been rightly and justifiably relied upon by the Courts below and the conviction is correctly founded on legal and admissible evidence on record.

10. Adverting to the question of sentence as modified by the High Court, we find that this is a case of single shot fired by the appellant, which proved to be fatal. Obviously, appellant did not repeat the fire from the weapon. Furthermore, appellant was aged abut 60 years at the time of occurrence and by now he has attained the age of almost 70 years. Learned High Court, in the exercise of its discretion to our mind, was justified in awarding lesser penalty in view of the special circumstances. We are also of the firm opinion that the appellant had no direct motive to commit the murder of the deceased. Learned High Court neither acted illegally nor arbitrarily in altering the sentence of death to life imprisonment. In the peculiar circumstances of the case, we are not inclined to interfere with the discretion exercised by the High Court, which was justly and fairly exercised by it.

11. Resultantly, both the appeals are dismissed. Conviction and sentence recorded by the High Court against appellant is upheld. We are not persuaded to extend the benefit of section 382-B, Cr.P.C. To the appellant for the obvious reason that despite his direct and specific involvement in the crime he remained fugitive from law for a period over two years which circumstance militates against his bona fides.