(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 302, 326 & 149‑‑Constitution of Pakistan (1973), Art. 185(3)‑ Appraisal of evidence‑‑Appeal against acquittal/ reduction in sentence of co‑accused‑‑High Court having found that motive, ocular account, recovery and medical evidence clearly proved participation of all members of accused party in commission of crime, coming to conclusion that although all of them were armed with Chhuri and knives, they did not want to kill deceased and that as youngsters they had only ganged up to teach deceased a lesson‑‑Leave to appeal granted to consider as to whether or not generally accepted principles of appraisal of evidence had been properly followed.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑S. 302/149‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Appraisal of evidence‑‑Leave. to appeal having been granted against acquittal/ reduction in sentences of co‑accused and notice having been issued to them alongwith petitioner, leave to appeal granted to petitioner as well so that he could put forward case of defence, if any.
Wahiduddin Virk, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner (in Petition 42 of 1985).
Qazi M. Salim, Senior Advocate Supreme Court instructed by Muhammad Aslam Choudhry, Advocate‑on‑Record for Petitioner (in Petition 65 of 1985).
Nemo for Respondents (in both petitions).
ORDER
JAVID IQBAL J.‑‑ Criminal Petition for Leave to Appeal No.42 of 1985 has been filed by Mohammad Akbar petitioner against his conviction and sentence whereas Criminal Petition for Leave to Appeal No.65 of 1985 has been filed by Nazar Hussain complainant for enhancement of the sentence of Mohammad Akbar petitioner to death and against acquittal of co‑accused Mohammad Yousuf, Sultan, Mohammad Aslam and Nazir Hussain under sections 302/149, P.P.C. Since these are connected petitions in the sense that they are directed against the same judgment of the Lahore, High Court Lahore dated 5th January, 1985,these are being taken up together.
Briefly the facts are that Muhammad Akbar petitioner alongwith five others namely Muhammad Yousuf, Sultan, Muhammad Aslam, Nazir Hussain and Ghulam Haider was tried under section 302/307/148/149, PPC by the learned Additional Sessions Judge Toba Tek Singh who vide his judgment dated 10th August, 1983 convicted all of them except Ghulam Haider under sections 302/149 PPC only for the murder of Arab Hussain and each of them was sentenced to life imprisonment plus fine. All of them except Ghulam Haider were also convicted under section 148, PPC and each of them was sentenced to one year's R.I. Ghulam Haider was given the benefit of doubt and acquitted. In appeal before the Lahore High Court Lahore the conviction and sentence of only Mohammad Akbar were maintained whereas the conviction as well as sentence awarded to Mohammad Yousuf, Sultan, Muhammad Aslam and Nazir Hussain co‑accused under sections 302/149, PPC were set aside and instead each of them was convicted under sections 326/149, PPC and sentenced to 5 years' RI with fine. Conviction of all of them as well as sentence awarded to them under section 148, PPC were maintained. The sentences of imprisonment awarded to each of them were ordered to run concurrently.
The occurrence took place at sun‑set time on 10th September 1980 in Chak No.301/J.B. Police Station Toba Tek Singh, District Faisalabad. The F.I.R. was lodged by Nazar Hussain complainant at 9‑15 p.m. on the same day. Petitioner Mohammad Akbar and the abovementioned four co‑accused were arrested on 19th September 1980. From all of them were recovered human bloodstained chhuri and knives. The eye‑witness of the occurrence produced is Muhammad Hanif PW who is paternal cousin of the father of the deceased. Nazar Hussain complainant who lodged the F. I. R. and is petitioner in Criminal Petition No.65 of 1985 is father of the deceased. According to the medical evidence the deceased had received 5 stab injuries which were all caused by sharp‑edged weapon and grievous in nature. The motive for crime was that a day before the occurrence Mohammad Akbar petitioner and Sultan co‑accused were bathing in the village pond when the deceased and his father Nazar Hussain complainant passed by and objected to their bathing on the ground that ladies also frequented the path which was adjacent to where they were bathing. On this both of them exchanged abusive language with the deceased and they also grappled with him. Abdul Hamid PW and another person separated them. While leaving Mohammad Akbar petitioner threatened the deceased with dire consequences. The prosecution version is that on the fateful day just after Maghrab prayers time Muhammad Tariq, Nazar Hussain complainant and the deceased were coming from the mosque side. As they reached near the Baithak of Mohammad Yousuf co‑accused they found that all the members of the accused party armed with chhuri and knives were sitting in an ambush. On seeing them Muhammad Akbar petitioner raised a Lalkara and the deceased ran backwards. Muhammad Akbar petitioner then gave a chhuri blow on the back of the deceased near his right shoulder. Then Mohammad Yousaf co‑accused gave a knife blow on the back of the chest of the deceased. The deceased fell down on the ground in an injured condition. Thereafter, Sultan, Muhammad Aslam and Nazir Hussain co‑accused each gave one knife blow on the back of the deceased. Mohammad Tariq stepped forward to rescue the deceased but he was given a knife blow on his hand by Ghulam Haider acquitted co‑accused. The occurrence was witnessed by Mohammad Hanif PW and two others who had not been produced.
Learned counsel for Mohammad Akbar petitioner in Criminal Petition No.42 of 1985 argued that according to the statement of Hamidullah Inspector police PW who investigated the matter, he had found two injuries on the head of Muhammad Akbar petitioner. He placed medico‑legal report on the file pertaining to Muhammad Akbar petitioner and stated that he had received the injuries during the occurrence. Learned counsel then stated that Muhammad Akbar petitioner in his statement before the trial Court had submitted that actually the deceased alongwith Muhammad Tariq, Liaqat, Ghulam Dastgir and Aslam attacked Muhammad Akbar petitioner and that Muhammad Akbar petitioner as well as Zulfiqar alias Bhutto and Nasir were attacked while they were sitting together. On the basis of this the learned counsel argued that if Muhammad Akbar petitioner had caused any injury to the deceased, it was only in the exercise of his right of self‑defence. It may be noted that the persons named by Muhammad Akbar petitioner who was stated to be sitting with him, when according to him he was attacked by the deceased and his party, i.e. Zulfiqar allas Bhutto and Nasir, have not been produced even as defence witnesses nor it could be established as to whether they were injured or not. Anyway the finding of the courts below about the injuries on the person of Muhammad Akbar petitioner was that these could be self‑suffered.
On the other hand learned counsel for Nazar Hussain complainant‑petitioner in Criminal Petition No.65 of 1985 argued that the finding of the Lahore High Court, Lahore is that the motive, the ocular account, the recoveries and the medical evidence clearly proved the participation of all the members of the accused party including Muhammad Akbar petitioner in the commission of crime but after holding the same, it is submitted that there was no justification on the part of the Lahore High Court Lahore to arrive at the conclusion that although all of them were armed as described by the prosecution, they did not want to kill the deceased and that as youngsters they had only ganged up to teach the deceased a lesson. Learned counsel argued that there was nothing on the record to support the conclusion arrived at by the High Court to the effect that the common object of the members of the accused party was only to cause grievous injuries to the deceased and that this fact was confirmed because each member of the accused party was only attributed for having caused one blow to the deceased. It was submitted that Muhammad Akbar petitioner had inflicted the fatal blow according to the medical evidence and, therefore, his conviction under section 302 PPC as well as sentence awarded to him were maintained but in the case of the other four co‑accused there was no justification of setting aside their conviction and sentence awarded to them under sections 302/149 of the Pakistan Penal Code.
We have carefully considered the arguments of the learned counsel for Nazar Hussain complainant‑petitioner and we grant leave in Criminal Petition for Leave to Appeal No.65 of 1985 in order to consider as to whether or not the generally accepted principles of appraisal of evidence have been properly followed in this case. Notice to Muhammad Akbar petitioner as well as Muhammad Yousuf, Sultan, Muhammad Aslam and Nazir Hussain co‑accused.
Since we have granted leave in Criminal Petition for Leave to Appeal No.65 of 1985 we also grant leave to Muhammad Akbar petitioner in Criminal Petition for Leave to Appeal No. 42 of 1985 so that, he could put forward the case of defence if any.
M.I./M‑111/SLeave granted
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