1968 SCMR 10 (PLP)

HAMOODUR RAHMAN, J.-The two petitioners in this case were tried and convicted under section 302/34 of the Pakistan Penal Code for the murder of their co-villager Mir Akbar. The incident resulting in this murder is alleged to have occurred on the 18th of May 1965, at about 9 a. m. when the deceased was going with his nephew Sakhi Zaman to Rawalpindi with some R s. 8,000 on his person along the village path. It is alleged that when the deceased and his companion reached a place, called Baglota, within a few furlongs of their village Tatrila and within 110 paces of the house of the petitioners, the latter emerged from behind a boulder and accosted the deceased. They asked him as to why he was using the pathway in spite of the fact that he had been forbidden to do so. The deceased replied that since it was a public thoroughfare he had every right to use it. Thereupon the petitioner Kala asked the other petitioner not to spare the deceased and the latter shot and injured him. Simultaneously the petitioner Kala also fired and the deceased fell to the ground. Seeing his nephew Sakhi Zaman ran back to the village shouting for help. It was, he who subsequently lodged the first information report with the Station House Officer who was found at the village Kala Bagh. In this case the deceased also is stated to have made a dying declaration which was recorded by one of the witnesses. The deceased had, however, succumbed to his injuries by the time the police reached the spot. During investigation a cartridge (p. 2), two card-board discs (p. 11), an empty shell (p. 2) and a lead pellet (p. 3) were recovered from the scene of the incident. The licensed shotgun of petitioner Kala was also seized after its licence had been produced by one Md. Yousuf. The petitioners were then arrested. At this stage of the investigation Suleman, the son of the petitioner Khushal, offered to make a confession and stated that he had, with the single-barelled gun belonging to his uncle Kala killed the deceased being provoked at seeing him beating his mother and sister when they protested at .the deceased and his nephew pulling out the fence they had put up to protect their potato field on the ground that it obstructed the pathway. Over this fence, it appears, an altercation had also taken place between the deceased and the petitioners some 15 days earlier. On this confession the police challaned Suleman alone and showed the present petitioners only in column No. 2 of the challan. During the enquiry against Suleman, however, the enquiry Magistrate joined the petitioners as accused, for the F. I. R. mentioned them as the assailants. It did not show that Suleman had done anything. The petitioners were, accordingly, also committed and tried along with Suleman, with the result that Suleman was acquitted of both charges under sections 302/34 and 394, P. P. C. and the petitioners were also acquitted of the charge under section 394, P. P. C. but were convicted under section 302/34, P. P. C. This conviction has been upheld by the High Court of West Pakistan in appeal and reference. The petitioners now seek special leave to appeal and the main contention urged on their behalf is that the joint trial of the two petitioners with Suleman was illegal, since his version was entirely contradictory. These were two mutually exclusive versions, one given by the prosecution witnesses and the other, given by Suleman in his confessional statement, which appeared to have also impressed the police who accepted it and on its basis only charged Suleman for the murder of Mir Akbar. The joint trial with such a person, it is urged, has seriously prejudiced the petitioners and vitiated the entire trial. Learned counsel has also sought to raise other points but since we are of the view that the first point relating to misjoinder of accused is of substance, we do not consider it necessary to discuss the other points but grant leave to the petitioners to urge the point mentioned above as well as the other grounds raised in his petition. Leave Granted.