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Criminal Petitions Nos. 6‑R and 48 of 1984. decided on 2nd December, 1984.

(On appeal from the judgment, dated 15‑1‑1984 of the Lahore High Court in Criminal Appeal No. 6‑R of 1984).

‑‑‑Art.185(3)‑‑Penal Code (XLV of 1860), 5.302‑‑Re‑appraisal of evidence by Supreme Court‑‑Indentity of accused being absolute, un-doubtful and real culprits not substituted‑‑Conviction of accused, held, justified..

‑‑‑S.302‑‑Death sentence‑‑Motive for offence not satisfactorily established but in fact was shrouded in mystry‑‑Imposition of lesser sentence, held, was proper and reduction of death sentence to that of life imprisonment was also justified in circumstances.‑‑[Sentence].

Fazal Ellahi Siddiqui, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Cr.P.No.6‑R of 1984).

Rab Nawaz Niazi, Advocate Supreme Court and Ch. Mehd'. Khan Mehtab, Advocate‑on‑Record (absent) for Petitioner (in Cr.P. No.48 of 1984).

Nemo for Respondents.

Date of hearing: 2nd December, 1984.

This order will dispose of Criminal Petition No.6‑R of 1984 and Criminal Petition No.48 of 1984, as both are directed against one and the same judgment passed by a Division Bench of the Lahore High Court in Criminal Appeal No.754 of 1980 and Murder Reference No.172 of 1980.

On 29‑12‑1978, at about 11.30 a..m., Hamidullah Khan alongwith Khan Bahadur, Amir Umar Khan and Mumtaz Khan were passing through the Bazar and when they reached near Sarai Atta Muhammad Battian ir. Mianwali City, the petitioner herein. suddenly came in front and raised a Lalkara. Simultaneously he also fired a shot from his revolver at Hamidullah. The shot hit him _on the left side of his belly but he started running. A second shot was then fired at him by Mati‑ur‑Rehman. This shot hit him on the back side of the left thigh and went through and through. After receiving this shot Hamidullah fell down on the ground. His companions put him in a taxi and brought him to the Civil. Hospital, Mianwali, in an injured condition. He was medically examined. In the meanwhile, the police also arrived at the Hospital.

An A.S.I. Atta Muhammad (P.W.14) recorded the statement of Khan Bahadur (P.W.12) at 1.20 p.m. and on the basis of this statement a case under section 307, P.P.C. was registered against Mati‑ur‑Rehman, petitioner herein. Since, however, Hamidullah Khan succumbed to his injuries after about a week in the hospital and expired on 6‑1‑1979, the offence was converted into one under section 302, P.P.C. Mati‑ur Rehman was arrested on 31‑12‑1978 and later on tried on the charge of murder of Hamidullah Khan.

The learned Sessions Judge, Mianwali, vide his judgment dated 3‑6‑1980, found Mati‑ur-Rehman guilty of the charge of murder and convicted him under section 302, P.P.C. and sentenced him to death. He also imposed a fine of Rs.5, 000 with the direction that if the fine was realised from him, it should be paid as compensation to the heirs of the deceased.

The convict filed an appeal in the Lahore High Court (Cr.A.No.754/80) challenging his conviction and sentence. The matter was also referred to the said High Court for confirmation of the sentence of death (Murder Reference No.172 of 1980).

Both these matters were heard by a Division Bench of the High Court and were disposed of vide its judgment dated 15‑1‑1984. The learned Judges in the High Court upheld the conviction of petitioner under section 302, P.P.C. but reduced the sentence of death to life imprisonment on the ground that the motive for the offence was not satisfactorily established and, in fact, it was "shrouded in mystery."

The petitioner has now filed a petition in this Court (Cr.P.No.6‑R/84) to question his conviction and sentence, while Khan Bahadur complainant has also moved this Court for enhancing the sentence from life imprisonment to death (Cr.P.No.48/84).

We have heard Mr. Fazal Ellahi Siddiqi, Advocate, in support of the petition (Cr.P.6‑R/84) filed by Mati‑ur‑Rehman as well as Mr. Rab Nawaz Niazi, learned counsel for Khan Bahadur, complainant, in support of his petition (Cr.P.48/84) and perused the record. Both of them have merely asked us to re‑appraise the evidence, which has already been done quite satisfactorily by the Courts below.

The occurrence took place in a broad‑daylight (at 11.30 a.m.). It was witnessed by Khan Bahadur P.W.12 and two others, one of whom, namely, Mumtaz Khan P.W.13, also appeared in Court, apart from Khan Bahadur P.W.12 and both of them stated quite categorically that it was Mati‑ur‑Rehman who fired the two shots at the deceased. We are also satisfied that there is absolutely no doubt about the identity of the culprit who was, indeed, Mati‑ur‑Rehman and the real culprit' has not been substituted. The conviction of the petitioner was. therefore, fully justified.

We are also satisfied that the imposition of the lesser sentence was proper in the circumstances of this case and the High Court was justified in reducing the sentence of death imposed on Mati‑ur-Rehman to that of life imprisonment.

The result is that both these petitions must fail and are, accordingly, dismissed hereby.

M . Z . M . Petition dismissed.

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