1987 PLP 1902 (SCMR)

MIAN BURHANUDDIN KHAN, J.--By this petition leave is sought to appeal against the judgment and order of the Lahore High Court dated 10-3-1980 passed in Criminal Appeal No.331 of 1979.

2. The accused /respondents Muhammad Iqbal, Muhammad Tufail, Noor Muhammad and Gulzar Ahmad were tried by the learned Additional Sessions Judge, Lahore who, vide his judgment dated 15-3-1979 awarded life imprisonment to Muhammad Iqbal and Muhammad Tufail under section 302/34, P.P.C. and a fine of Rs.2,000 each or in default, to undergo further six months' R.I.; while Noor Muhammad and Gulzar were sentenced to one year R.I. each and to pay a fine of Rs.1,000 each, in default, to undergo R.I. for further 3 months, for committing the murder of Fayaz Haider and causing injuries to Ishtiaq Ahmad P.W.9.

3. On appeal before the Lahore High Court, Noor Muhammad, Gulzar and Muhammad Tufail were acquitted; while appeal of Muhammad Iqbal accused/ respondent was partly accepted inasmuch as he was acquitted of the charge under section 302, P. P. C . and was convicted under section 304-II and sentenced to six years' R.I. and a fine of Rs.5,000, in default, to undergo further R.I. for one year. Fine or any part thereof, if realized, was ordered to be paid to the legal heirs of Fayaz Haider deceased as compensation.

4. According to the prosecution, on 17-8-1976 at 9/10 a.m. while proceeding to his uncle's house Ishtiaq P.W.9 protested to the wife of Noor Muhammad accused/ respondent for tethering buffalo in the street. The matter was settled on the intervention of Muhammad Parvez, a neighbour. On 18-8-1976 at 11 a.m. Ishtiaq P.W.9 was returning from Sultanpura Bazar on his bicycle, struck Raja son of Noor Muhammad whereupon an altercation ensued between them, which was again patched upon on the intervention of the people of Muhallah. It is stated that Ishtiaq narrated the incident to his brother Fayaz Haider deceased, and then both of them went to the house of Noor Muhammad to complain about the earlier incident. Noor Muhammad, Gulzar, Muhammad Tufail and Muhammad lqbal were present at the Kerosine Oil Depot of Noor Muhammad. The accused /respondent lost temper and at the behest of Noor Muhammad, they launched the attack. Gulzar and Noor Muhammad gave blows with Sotas to Ishtiaq P.W.9 while Iqbal and Tufail gave Sota blows to Fayaz Haider deceased on his head who fell unconscious. Abdul Waheed and Muhammad Suleman witnessed the occurrence and they rescued the complainant party from the accused /respondents.

5. Fayaz Haider was carried to the Mayo Hospital, Lahore where Dr. Mukhtar Ali Naru P.W.7 examine him and found one contusion mark 1 x 1 " and swelling 2" x 1" on the left side and back of his head. Ishtiaq P.W.9 was also found injured and had one contused wound and four contusion marks on the neck, left shoulder joint, middle of the back and right his joint. Dr. Mubarak Ali Shah C.W.1 examined Muhammad Iqbal accused/ respondent and found an incised wound, a contusion and an abrasion on the base of his right little finger, elbow and right forearm. The doctor sent a message regarding the arrival of the wounded persons in the hospital and Saghir Ahmad A.S.I. P.W.10 proceeded to the hospital where he found Fayaz Haider deceased unconscious. He recorded the report of Ishtiaq P.W. 9 which is Exh. P.D.. Fayaz Haider died later on in the hospital on 19-8-1976.

6. Dr. Tahir Anees P.W.4 conducted the post-mortem examination on the dead body of deceased Fayaz Haider and found two contused swellings on the head of the deceased; fracture of both the parietals, left frontal and temporal bones which were found sufficient to cause the death of the deceased.

7. Learned counsel's grievance is that the learned High Court Judge held that the prosecution has succeeded in establishing a motive against all the accused/ respondents. This motive was partly admitted by the accused /respondents; that there being no enmity or ill-will amongst the parties earlier to the incident of 17-8-1976, there was no reason or occasion for the complainant party to falsely implicate the accused/ respondents; that the testimony of Ishtiaq P.W.9, who sustained injuries in the same incident, could not be ignored in the circumstances of the present case; that report of Ishtiaq P.W.9 was recorded immediately after the occurrence leaving no time for the complainant party to fabricate or cook up a case against the accused/ respondents; that the learned High Court has laid much emphasis on the injuries sustained by Muhammad Iqbal accused/respondent. The learned counsel submitted that the injuries sustained by Muhammad Iqbal were of insignificant nature and could be sustained during such a scuffle as has resulted in the death of Fayaz Haider; that the Investigating Officer Saghir Ahmad P.W.10 at the time of arrest of Muhammad Iqbal, accused/respondent did not find any injuries on his person.

8. We have considered the points raised by the learned counsel, and grant leave to consider the nature of offence against Muhammad Iqbal accused/respondent and to reappraise the evidence as against Muhammad Tufail accused/respondent. Bailable warrant in the sum of rupees twenty thousand to issue against him to the satisfaction of A.C. Lahore. This petition as against the other accused/respondents is rejected. M.I./I-18/S Leave granted.