1998 PLP 719 (SCMR)

AJMAL MIAN, J.

This is a petition for leave to appeal against the judgment, dated' 13-5-1996 passed by a Division Bench of the Lahore High Court in Criminal Appeal No. 1318 of 1992, filed by the petitioner/convict, and Murder Reference No. 131 of 1992 submitted by the learned Additional Sessions Judge, Chunian, District Kasur, dismissing the above Criminal Appeal and accepting the aforesaid Murder Reference by confirming the death sentence awarded to the petitioner.

2. The brief facts are that three murders had taken place, in the present case namely, of Sardar Ali, Ghulam Muhammad and Jan Muhammad, besides injuries were caused to Mst. Zahida Bibi. The prosecution story as disclosed in F.I.R. No.58, dated 5-2-1990 lodged under section 302/452/148/149/109, P.P.C. at the Police Station Kanganpur by P.W. Yar Muhammad was that he was a resident of Basti Dhonan Wali included in Village Mokel, P.S. Kanganpur, and used to cultivate the land. On 5-2-1990 at about 7-30 a.m. his cousin, Sardar Ali son of Bulanda, who was engaged with his daughter, returned to the village after watering the fields. When he reached near the house of Iqbal son of Ibrahim Komar, Sarwar alias Dhola armed with .12 bore gun, Zulfiqai armed with a hatchet, Muhammad Tufail armed with .12 bore gun, Iqbal armed with .12 bore gun, Muhammad Hussain armed with Sota, came there raising Lalkara. On hearing this the complainant Yar Muhammad, Sajawara and Muhammad Tufail also came there. When they reached near the house of Bashir Ahmad son of Feroz Din, Muhammad Hussain caught hold of Sardar Ali from his legs. It was alleged that the present petitioner/convict Muhammad Sarwar fired with his gun which hit Sardar Ali on his neck, his back side and passed through it. On receiving the above shots, Sardar Ali fell down on the ground. Zulfiqar gave a hatchet blow from the blunt side which hit Sardar Ali on his neck while he was lying on the ground. Sardar Ali succumbed to the injuries. It was further alleged that the above occurrence was witnessed by the complainant Yar Muhammad, Sajawara and Muhammad Tufail. After that the complainant and his son Tufail chased the accused but they entered into the house of Ghulam Muhammad Komar. It was also alleged that Muhammad Hussain inflicted a Sota blow which hit on the head of Ghulam Muhammad, he fell down on the ground and succumbed to the injuries. Muhammad Siddique and Muhammad Hanif climbed on their house due to fear. Jan Muhammad went forward to rescue them. Thereupon, Muhammad Iqbal fired with his gun at Jan Muhammad which hit him on the right side of his face. It was further alleged that Zulfiqar accused inflicted a hatchet blow which hit Jan Muhammad on his right shoulder. He fell down on the ground and succumbed to the injuries. It was also alleged that Mst. Zahida Bibi, wife of Iqbal, went forward to rescue him. Muhammad Hussain again inflicted a Sota blow which hit on her left arm. After that the accused ran away.

3. The motive disclosed was that the petitioner/convict's brother Mukhtar alias Mukhi had developed illicit relations with Mst. Zahida Bibi, wife of Muhammad Iqbal, on account of which he was murdered by the latter, in respect of which F.I.R. against nine persons was lodged; out of them four were released on bail. The petitioner/convict nurtured belief that the complainant party was siding with the accused party in the above case.

4. The present petit loner/convict alongwith six other co-accused were tried by the learned Additional Sessions Judge, Chunian. Pursuant to the aforesaid F.I.R. all the co-accused were acquitted except the petitioner/convict Muhammad Sarwar, who was awarded death sentence under section 302, P.P.C. He was also fined Rs.10,000, in default of which to undergo S.I. of three months through the judgment, dated 9-12-1991. Thereupon, the petitioner/ convict filed aforesaid criminal appeal and the learned Additional Sessions Judge, Chunian, remitted the aforementioned Murder Reference for confirmation of death sentence, which have been disposed of in the above terms. The petitioner/convict has, therefore., filed the present petition for leave to appeal.

5. In support of the above petition Miss Hina Jillani, learned ASC for the petitioner, has vehemently contended that the learned Additional Sessions Judge after having granted the benefit of doubt to the other co-accused could not have recorded conviction against the petitioner/convict on the same evidence particularly when there was enmity between the parties. Her further submission was that there was conflict between the ocular and medical evidence inasmuch as there was no injury on the person of the deceased from the blunt side of the hatchet as was alleged by the prosecution.

6. We are inclined to grant leave to consider as to whether on the basis of the material available on record, the learned Additional Sessions Judge and the learned Judges of the Division Bench of the High Court were justified to record/maintain conviction and the award of major punishment of, death. Leave is, accordingly, granted. N.H.Q./M-101/S Leave granted.