1996SCMR513 (PLP)

Malik Saeed Hassan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 11th May, 1994. WALI MUHAMMAD KHAN, J.‑‑‑Muhammad Younas and his brother Muhammad Yousaf alias Boota, petitioner herein, call in question the judgment dated 7‑11‑1993 passed by a learned Single Judge of the Lahore High Court, whereby Criminal Appeal No.701/90 filed by them alongwith their co‑convicts, namely, Gulzar Ahmed and Mukhtar Ahmed, Against their conviction and sentences under section 302/34, P:P.C. for the murder of Muhammad Shafiq and under section 324/34 for causing simple injuries with sharp‑edged weapon to Nawaz and Idrees P.Ws., was partly accepted, inasmuch as, the conviction and sentence of Gulzar Ahmed and Mukhtar Ahmed was set aside but the appeal of the petitioners Muhammad Younas and Muhammad Yousaf alias Boota was dismissed and their conviction and sentence maintained.

2. The facts of the case, in a nutshell, are that Muhammad Ishfaq nephew of Muhammad Ismail complainant/P.W.11 was betrothed to Mst. Bushra daughter of Muhammad Ishaq Gill about 2 years prior to the present tragedy, however, the marriage could not be solemnised and she was married to Muhammad Yousaf alias Boota accused/petitioner

2. In spite of the marriage Muhammad Yousaf still suspected her of liaison between her and the said Muhammad Ishaq. On the day of occurrence viz. 8‑2‑1988 at 5‑00 p.m. the complainant Muhammad Ismail P.W.11 alongwith Muhammad Ishaq, Muhammad Shafiq (deceased), Muhammad Idrees, Muhammad Nawaz and Muhammad Ilyas were returning from their lands, Muhammad Ilyas having a hatchet and Muhammad Idrees a Sota with them and when they reached near the house of Muhammad Ishaq Gill father of Mst. Bushra, the petitioners and Gulzar Ahmad (acquitted accused) armed with guns and Mukhtar Ahmed (acquitted accused) armed with hatchet came in front of them and raised an alaram that they would teach them a lesson and simultaneously Muhammad Yousaf alias Boota fired a shot with his gun hitting Muhammad Shafiq deceased on his abdomen followed by Muhammad Younas petitioner hitting him on his bladder and both thighs and as a. result whereof he fell down on the ground and when he was lying both the petitioners fired one shot each hitting his right and left wrist, whereafter Gulzar Ahmed fired at Muhammad Idrees and injured him on his left wrist. The petitioners dealt blows with the butt of their guns to Muhammad Idrees and Mukhtar Ahmed (acquitted accused) dealt hatchet blows to Muhammad Nawaz on his head while Gulzar Ahmed delivered butt blows to Muhammad Nawaz on his left wrist. Muhammad Ilyas and Muhammad Idrees P.Ws. are alleged to have injured the petitioners in the exercise of the right of self‑defence of their person. On the alarm raised by the complainant party, Muhammad Ramzan arid Raiz Ahmed P. WS: of the village were attracted to the spot and they witnessed the occurrence. After usual investigation of the case all the accused were put on trial before the Additional Sessions Judge, Faisalabad, who framed the necessary charge‑sheet against them and after recording of the evidence produced by the prosecution, the statement of accused under section 342, Cr.P.C., the statement of the defence witnesses produced in the case, hearing of arguments and appraisal of the record, vide his judgment dated 5‑9‑1990, found all the accused guilty for the murder of Muhammad Shafiq deceased and causing injuries to Muhammad Nawaz and Muhammad Idrees P.Ws. and sentenced all of them to life imprisonment and a fine of Rs.10,000 each or in default two years' R.I., half of fine on realisation payable to the heirs of the deceased, and the petitioners also sentenced to two years' R.I. each for causing injuries to Muhammad Idress P.W. while Mukhtar Ahmed and Gulzar Ahmed were awarded two years' R.I. for causing injuries to Muhammad Nawaz and Muhammad Idrees P.Ws. All the sentences were to run concurrently and the benefit of section 382‑B, Cr.P.C. also extended to them. Dissatisfied with the same, all the four accused/ convicts preferred appeal before the learned High Court which was disposed of through the impugned judgment whereby the conviction and sentences of petitioners were maintained while the conviction and sentences of their co‑accused, namely, Gulzar Ahmed and Mukhtar Ahmed were set aside. Hence the instant petition for leave to appeal.

3. We have heard Malik Saeed Hassan, Senior Advocate, for the petitioners, and have perused the record of the case with his assistance.

4. The learned counsel for the petitioners vehemently argued that there were cross‑versions of the occurrence, the one advanced by the prosecution as narrated above and the other by the defence as disclosed in the statement of Muhammad Younas petitioner under section 342, Cr.P.C. according to which the complainant party had gone to the house of Muhammad Ishaq Gill father of Mst. Bushra with the intent to kidnap her and while rescuing her they used force in which Naseer Ahmed their companion resorted to indiscriminate firing and the deceased party assailed the petitioners and caused them injuries and that the act of the petitioners was in the exercise of right of self‑defence of person. According to him, the injuries on the person of Muhammad Younas petitioner support their version. He also submitted that the prosecution version implicating the acquitted accused and attributing them specific role of the fire and delivering blows to the complainant party was disbelieved by the High Court and they were acquitted but on the same evidence the learned High Court maintained the conviction of the petitioners without any independent corroboration. Additionally, it was argued that no independent witness regarding the initiation of the quarrel was produced and the possibility that the occurrence was the result of sudden flare up without premeditation could not be ruled out reducing it to culpable homicide not amounting to murder and that aspect of the case was ignored by the two Courts below.

5. Leave is granted to consider the submissions made by the learned counsel for the petitioners. N.H.Q./M‑2222/S?????????????????????????????????????????? Leave granted.