PL D 1993 Supreme Court 393 (PLP)

SHAFIUR RAHMAN, J.‑‑ The complainant as well as the convicts have by separate petitions sought leave to appeal against the judgment of the High Court dated 31‑5‑1992. 2 On the 6th of April, 1988 at about 10‑00 a.m. the deceased Zulfqiar Ali was attacked by Muhammad Nawaz armed with .12 bore gun, Muhammad Khalid, Mehdi Hasan and Muhammad Zafar alias Zafra armed with carbine and Zakir Hussain armed with pistol. Zulfiqar died at the spot. The occurrence was witnessed by Sher Muhammad P.W.12 and Muhammad Khan P.W.11. Five .12 bore empties and one .30 bore empties were recovered from the spot, which matched with the weapons recovered from Nawaz, Khaliq and Zafar. The trial Court convicted all the rive accused under section 302, P.P.C. and sentenced three of them to death and two to life imprisonment 3 On appeal and while seized of the question of confirmation of death sentence, the High Court acquitted Zakir Hussain, Mehdi Hasan and maintained the conviction of three others. It did not confirm their death sentence and substituted it by life imprisonment. Hence these petitions one against acquittal and mitigation and other by the convicts against their conviction.

4. The features which necessitate reappraisal of the entire evidence are numerous. Firstly, the F.I.R., which is said to be prompt and which has been taken to provide corroboration, was lodged outside the police station at a Police Post notwithstanding the fact that the Police Station was only three furlongs away from the spot where the occurrence took place Secondly, the Inspector Muhammad Sadiq (P.W.13) whose testimony was heavily relied upon for proving the prosecution case appears to be a close associate of the complainant party being co‑occused with the deceased in Complaint Case No.134 of 1982 (Exh. DB). Thirdly, the motive being against complainant, his presence at the time of occurrence was doubtful because had he been present, he would have been brought directly under attack. Fourthly/finally, the reason given for mitigating the offence under section 302/34, P.P.C. is somewhat enigmatic because of the following observations of the High Court .. maintaining their conviction for the murder of the deceased their sentence of death under section 302/34, P.P.C. is commuted to imprisonment for life for safer administration of criminal justice because attribution of particular injury to each one of the assailants during close range 'multiple fire‑arm assault the object remaining static is questionable;"

5. Hence, leave to appeal is granted in Criminal Petition for Leave to Appeal No.261‑1, of 1992. The other petition (Cr.P.L.A. 249‑L of 1992) is shown to be barred by 3 days. This delay in filing the petition has been explained and is condoned. Hence. Leave to appeal is also granted in the complainant's petition (Cr.P.L.A.No.261‑L/92) as the entire case is going to be reconsidered in depth. Bailable warrants in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction of Duty Magistrates concerned shall issue against respondents in Criminal Petition No.249‑1, of 1992 who are not in confinement. M.BA./M‑1754/S Leave granted.