1987 PLP 1586 (SCMR)

MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑These two petitions (one through Jail) by three convict‑petitioners are directed against the judgment dated 18th December, 1984, of Federal Shariat Court, whereby the conviction and sentences of the petitioners for various offences described below were upheld:‑‑ "All the petitioners sentenced to death under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance (No. VI of 1979); Gut Jehangir also sentenced to 3 years' R.I. and a fine of Rs.1,000 under section 307, P.P.C.; and, each sentenced to R.I. for one year and fine of Rs.500 each under section 13(d) of the Arms Ordinance, 1965." The prosecution case as is discoverable from the statement under section 154, Cr.P.C. of Abdul Qayyum Shah the star witness who is also an eye‑witness and complainant, is as follow:‑‑ "I am residing at the above address with my family and run a hotel at the seashore. Today at about 8‑00 a.m. I was present in my hotel. I saw a taxi which was standing at a distance of 100 yards from my hotel. The taxi was bearing No. 839‑162. 1 hear pistol shots. I came out of my hotel and saw 3 men out of whom one was with a beard. All the 3 men were healthy and stout. They threw one man out of the taxi. The beard man had pistol in his hands and the other 2 men were with him. They started the taxi and drove away. I ran towards the injured person and saw him bleeding from his head and he was dead. I raised cries saying 'catch the taxi. The men in the taxi have committed murder'. In the meanwhile my neighbourers Allah Rakha, Muhammad Ahmed and Mir Afzal came there. To them I explained the whole matter. I told them one taxi bearing No. 839‑162 which was going, have murdered the Taxiwala and are running away. There are three men. Catch them. Allah Rakha with the help of a Motor Cycle man followed them. And Muhammad Ahmad and Mir Afzal also ran after them. Out of the 3 men, the beard man fired at Mir Afzal but this was missed. Thereafter, these men ran away towards old Clifton. Allah Rakha went to the police station to lodge report. We continued running after the accused person. Meanwhile the taxi stopped at Soofi Gulab Hotel at ascending point. The three accused persons got down from the taxi and started running. We ran after them. At this time, Allah Rakha also arrived with a police party. They apprehended the 3 accused persons, their names were Umar Badshah allas Noor Badshah, Gut Jehangir alias Jehangir and Sher Jan. Personal search was done. On personal search, one pistol, rounds and one Toka kept in the Naifa, were recovered from Gut Jehangir. One Ustra and one dagger knife which was tied with his lower leg, were recovered from Umer Badshah alias Noor Badshah. The knife (dagger) was in red leather cover. One double edged Dagger and one Chhuri were recovered from Sher Jan. The police took the accused person to police station. This incidence was witnessed by persons." The prosecution led evidence regarding the ocular account in accordance with the facts narrated in the afore quoted statement; the evidence of recovery and, the evidence regarding pursuit of the culprits from the seashore up to the arrest; and that of arrest. The plea of defence was of total denial without any satisfactory explanation for false implication. Both the learned Courts below found the petitioners guilty of offences as noted earlier. During the argument both the learned counsel have urged the grounds taken in both the petitions. After hearing them we deem it a fit case for grant of leave to appeal so as to examine the evidence and to see whether the petitioners have rightly been convicted for the said noted offences; and also to examine whether the petitioners were liable to be convicted for the offence of 'harabah' under section 17(4). It seems to be a case of first impression regarding the said offence, and if the said offence is not established whether they are liable to be punished under section 302, P.P.C. and if they are not liable for the said offence whether they are liable to be punished for the death of the taxi driver under any other provision of law as also to examine the related questions. M.I./U‑5/S Leave granted.