1968 P Cr (PLP)

HAMOODUR RAHMAN, J: The petitioners were charged under section 302/34 of the Pakistan Penal Code, along with their father Jalandar and one Qadar for the alleged murders of two of their co-villagers Faqir Muhammad and his son Nur Ghani. Jalandar died before the trial commenced and Qadar absconded but the petitioners were convicted good sentenced to death. Their convictions and sentence have also been confirmed by the High Court. They now seek special leave to appeal to this Court. There was no previous enmity between the parties but the incident occurred over a dispute as to the turn of water. Their lands, it appear, are situated adjacent to each other and there was no official warabandi at the time. But the petitioner turn of water was, it is said, from 9-30 a.m. to 2-15 and thereafter started the turn of Faqir Muhammad. Accordingly, at 2-15 p.m. Nur Ghani deceased and Ghani Shah (P. W. 7), the sons of Faqir Muhammad deceased, diverted water to their fields. Jalandar (now dead), the father of the petitioners, objected to this on the ground that the water had been diverted before his allotted time was over. This led to an altercation which attracted Faqir Muhammad and Miran Shah to the spot. Later, the petitioners and the absconding accused Qadar also arrived at the spot. It is alleged that although Jalandar was unarmed, his sons, the petitioners and the absconding accused Qadar, arrived variously armed acid at the instance ref Jalandar, the absconding accused fired at Faqir Muhammad who fell down and died instantaneously. Petitioner Sikandar gave a knife blow to Nor Ghani and petitioner Bahadur fired at him. He too fell to the ground. Ghani Shah then ran away from the spot. He was fired at but missed. The incident, it is alleged, was witnessed by Ghani Shah (P. W. 7), Miran Shah (P. W. 9), Shindai (P. W. 8) and Gul Chaman (P. W. 10). (5f these Ghani Shah is the son of the deceased Faqir Muhammad and brother of Nur Ghani deceased and Miran Shah is the brother of a son-in-law of the deceased Faqir Muhammad. Shindai (P. W. 8) was not connected with the deceased and was the only disinterested eye-witness. Gul Chaman was not actually an eye-witness but having been attracted to tale spot by the reports of the gun-fire only saw the accused persons going away from the spot. He, however, claimed that when he saw the accused persons he found the absconder and the petitioner Bahadur armed with Tamanchas. Two other persons Fazal Ahmad, and the Penh Imam of the mosque (P. W. 12) and Auzar (P. W. 11) were also persons who were attracted to the spot by the reports of the shots. They too claimed that they saw the petitioners, their father and the absconder going away from the place and of them the absconder and Bahadur wire armed with Tamanchas. The High Court relied upon this evidence although it was pointed out to it that there were serious inconsistencies and contradictions between the statements of the eye-witnesses inter se. The High Court took the view that these discrepancies were not sufficient to absolve the two petitioners because the fact that they had arrived at the place along with the absconder who was armed with the pistol, was sufficient to show that they had come to the spot in furtherance of their common intention. Learned counsel appearing in support (it' this petition has drawn our attention to the evidence of Ghani Shah (P. W. 7) and Shindai (P. W. 8) to show that there was a possibility of the fatal shots having been fired by the absconder Qadar alone without the present petitioners knowing that the said absconder was armed with a pistol. Our attention has also been drawn to the fact that the evidence as to the nature of the weapon with which the petitioner Sikandar was armed was also doubtful. These contradictions in the evidence do not appear to have received adequate consideration in the High Court. It cannot, It is therefore urged, be said that in petitioners must have known that the absconding accused was armed with a pistol or that the petitioner Bahadur was also armed with a pistol as the prosecution witnesses have subsequently tried to make out. Leave is accordingly granted to consider whether the High Court was right in holding that in spite of the discrepancies and contradictions in the evidence the case of constructive liability under section 34, P. P. C. had been adequately made out against the present petitioners. Leave granted.