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-- Art. 185(3)-Penal Code (XLV of 1860), S. 302-Death sentence-Leave to appeal refused on merits of case but granted on question of sentence.

(b) Penal Code (XLV of 1860)

-- S. 302-Sentence-Accused at time of occurrence was about 15/16 years of age-Motive alleged by prosecution being that accused believed that his father had been murdered by deceased when he was a little boy and that accused murdered him to avenge murder of his father-Sentence for lire imprisonment, held, would be more appropriate than that of death in circumstances-Sentence of fine however, was enhanced to Rs. 25,000 from Rs. 2,000.

Ajun Shah v. The State P L D 1967 S C 185 and Pervaiz v. The State 1984 S C M R 848 quoted.

(c) Criminal Procedure Code (V of 1898)

-- Ss. 195 & 476-Perjury-Persons who deliberately tell lie in Courts of law and are proved to have committed such offence to be awarded deterrent punishment.

Held, persons who deliberately tell a lie in Courts of law and are proved to have committed this offence should be awarded deterrent punishment so as to serve as a warning to others in order to minimise the litigation in Courts.

Over the years it has been noticed that very often witnesses appearing in Courts of law make blatantly false statements against other persons, even in cases involving. the death sentence. The reason for this, is that a general impression prevails in the public that one can tell lies on oath in Courts of law with complete impunity. This impression is strengthened by the fact that even persons who are held by the Court to be false witnesses are hardly ever prosecuted. This in turn encourages the tendency to make false statements in Courts which has resulted in undermining public faith in the existing judicial system. Serious notice should always be taken by the Courts whenever it is apparent from the record that a witness has deliberately perjured himself.

Trial Court should proceed against such persons under section 476, Cr. P. C. and consider prosecuting them for offence under section 195, Cr. P. C.

Ijaz Hussain Batalvi, Advocate Supreme Court, M. Zafar, Advocate

Supreme Court and Ch. Auhammad Aslam, Advocate-on-Reeord for Appellant.

Amar Raza A. Khan, Advocate Supreme Court and Walayat Umar Chaudhry, Advocate-on-Reeord for the Complainant.

S. M. Zubair, A. A.-G. Punjab and Ijaz Ahmad Khan, Advocate-on- Record for the State

Date of hearing : 2nd February, 1985.

ASLAM RIAZ HUSSAIN, J.-This appeal by Muhammad Aslam is directed against the judgment of the Lahore High Court, Lahore, dated 16-6-19130, dismissing his appeal in a murder case.

2. Muhammad Aslam appellant- was accused of the murder of his own uncle Mehdi Hassan.

The motive for the murder is stated to be that when he was a young boy of 2/3 years of age, his father Hadi Hassan, disappeared and was suspected to have been murdered by his step-brother Mehdi Hassan (deceased) in the present case. When the appellant grew up to be about 15/16 years old, he murdered Mehdi Hassan to avenge his father's death.

3. The facts of the prosecution case, briefly stated, are that on 25-7-1974 at 12 noon Mehdi Hassan deceased was going in a Tonga alongwith Muhammad Hussain, Muhammad Naseem and Abdus Sattar, P. Ws. When they reached near Basti Jammunwala, Muhammad Aslam appellant came from behind on a horse, with a gun in his hand, and threw a challenge to the deceased that he would take revenge of his father's murder. Abdus Sattar who was driving the tonga stopped it and alighted from it. Muhammad Hussain and Muhammad Naseem P. Ws. who were sitting in the Tonga also got down, and stepped aside. Mehdi Hassan deceased, however, did not move. Muhammad Aslam appellant fired a shot at him killing him on the spot and then left, alongwith the gun, saying that he had taken revenge of his father's murder. The matter was reported to the police. The accused was arrested carrying the gun which was taken into possession.

4. On autopsy, the deceased was found to have died of gunshot injuries.

5. The prosecution case rested mainly on the testimony of the eyewitnesses, namely, Muhammad Hussain P.W. 8, Abdus Sattar P. W. 9 and Muhammad Naseem P. W. 10 (son of the deceased). It also relied on the medical evidence and the evidence of motive.

6. The appellant pleaded innocence and stated that, in fact, Muhammad Naseem P. W. had killed Mehdi Hussain because there was a dispute over some land between them and that he had been involved by the same witness (Muhammad Naseem). In support he produced Ashiq Ali (his uncle) as D.W. 1.

7. The learned trial Court believed the prosecution version and convicted the appellant and sentenced him to death. He filed an appeal before the High Court which, too, was dismissed and the sentence of death was confirmed. He then filed a petition for leave to appeal.

Vide order, dated 8-2-1982, leave was refused to him on merits but he) was granted leave on the question of sentence.

8. We have heard the learned counsel for the parties at length on the question of sentence.

From the evidence on the record. we find that on the day of occurrence Muhammad Aslam appellant was about 15/16 years of age. The motive alleged by the prosecution itself is that the appellant believed that his father, Hadi Hassan, had been murdered by Mehdi Hassan (deceased in this case), when he (the appellant) was a little boy and that the appellant murdered Mehdi Hassan to avenge the murder of his father. The learned counsel for the appellant submitted that in the circumstances of this case he was entitled to lesser sentence. In support of this contention he relied on the dictum of this Court in Ajun Shah v. The State (P L D 1967 S C 185), wherein it has been held as follows :

".. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing our is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty.

If the circumstances which we have mentioned above had been brought to the notice of the learned Judges 'of the High Court, perhaps, they would not have confirmed the sentence of death. We are, therefore, of the opinion that in this case the sentence of transportation for life should be more appropriate than the sentence of death."

This view was subsequently followed in a number of other cases which have been mentioned in Pervaiz v. The state (1984 S C M R 848).

We feel that this case is fully covered by the above-noted dictum. We, therefore, reduce the sentence, of Muhammad Aslam appellant from deal to imprisonment for life. We, however, feel that the sentence of fine imposed on him is inadequate. Therefore, after hearing his counsel on this point, we enhance the sentence of fine from Rs. 2,000 to Rs. 25,000. In default of payment of fine he shall suffer further R. 1. for 5 years. If recovered the fine shall be paid as compensation to the heirs of the deceased.

With the above modifications the appeal stands partly allowed.

9. Before parting with the matter, it may be mentioned that Muhammad Hassain P. W. 8 committed perjury by concealing certain facts before a Court of law. We, therefore, issued him a notice on 8-2-1982. He appeared today in response to the said notice and was represented by Mr. Aamar Raza A. Khan, Advocate.

On being questioned he admitted before us that Mst. Asia was his sister, but he added that she was his step-sister. He also admitted that she was married to Rana Suleman Khan, Advocate. When asked why he had told a lie in the trial Court, he merely prayed that he should be pardoned.

10. We are not satisfied with this plea and are strongly of the view that persons who deliberately tell a lie in Courts of law and are proved, to have committed this offence should be awarded deterrent punishment so as to serve as a warning to others in order to minimise the litigation in Courts.

We have been noticing over the years that very often witnesses appearing in Courts of law make blatently false statements against other persons, even in. cases involving the death sentence. The reason for this, we feel, is that a general impression prevails in the public that one can tell lies on oath in Courts of law with complete impunity. This impression is strengthened, by the fact that even persons who are held by the Court to be false witnesses. are hardly even prosecuted. This in turn further encourages the tendency to make false statements in Courts which has resulted in undermining public faith in the existing judicial system. We, therefore, feel that serious notice should always be taken by the Courts whenever it is apparent from the record that a witness has deliberately perjured himself.

11. We may also mention here that Ashiq Ali D. W. 1 who appeared as a defence witness was also found by the learned trial Court to have committed perjury. It may be noticed that the learned trial Court has observed at p. 37 of the printed book (line 12) that the Explanation put forward by Ashiq Ali D. W. 1, was an afterthought, coined to attempt to save the life of his nephew Muhammad Aslam. It is further observed by the learned trial Court at p. 43 (line 18 of the printed book) that :

" .. He has tried to save Muhammad Aslam accused not by extending-forgiveness but by telling a lie . . . . "- .

We, therefore, feel that the learned trial Court should have taken action against him as well.

12. As a result of the above observation we direct that the learned trial Court should proceed against P. fV. 8 (Muhammad Hussain) and,D D. W. 1 (Ashiq Ali) under section 476, Cr. P. C. and consider prosecu

ting them for offence under section 195, Cr. P. C.

M. B. A. Appeal dismissed.

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