2002 PLP 1071 (SCMR)

‑‑‑‑Ss. 302/34, 394/34 & 324/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contentions were that the injured witness in her cross examination had admitted that the accused at the time of occurrence had muffled their faces, thus, making the identification of accused doubtful and that the accused, three in number, had been sentenced to death for a single murder and an attempt to murder on the injured witness, though it had not been established as to who had inflicted the fatal injury to the deceased, thus, in the circumstances capital punishment was not warranted‑‑‑Leave to appeal was granted to accused by Supreme Court to reappraise the prosecution evidence for safe administration of justice‑‑‑Question of limitation was also to be considered at the time of hearing of the appeal as the petition through jail was barred by 59 days. M. Zaman Bhatti, Advocate Supreme Court for Petitioners. Nemo for the State. Dates of hearing: 5th and 6th September, 2001. MIAN MUHAHMMAD AJMAL, J.‑‑‑This petition through Jail, which is barred by 59 days, seeks leave to appeal against the judgment of the Lahore High Court, Lahore dated 13‑7‑1999, whereby Criminal Appeal No. 156‑J of 1998 of the petitioners was dismissed and death sentences awarded to the petitioners were confirmed.

2. Resume of the case is that Muhammad Aslam complainant alongwith one Muhammad Zafar came to the house of Haji Sultan Ali deceased on 24‑12‑1997 at 8‑00 a.m. and knocked the door but no reply was received. The gate was closed from inside. They opened the door and entered the room of Sultan Ali, saw Mst. Bashiran Bibi wife of Sultan Ali in an injured condition while Sultan Ali was lying dead on the cot. They also saw scattered suit‑cases and brief‑cases at different places. On their noise many persons from the locality gathered. Mst. Bashiran Bibi was taken to Bhalwal Hospital for medical examination and the complainant went to the Police Station and lodged the first information report. On 1‑1‑1998, Mst. Bashiran Bibi got her statement recorded under section 161, Cr.P.C. On 26‑1‑1998 Ghulam Abbas and Shahid Ali petitioners were arrested. On 16‑2‑1998 Shaukat Nazir was also arrested. After completion of investigation the challan was put in the Court of Special Judge, Anti‑Terrorism Court, Sargodha Division, On 6‑8‑1998, they were charged under section 392/302/460/459, P.P.C. to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced Dr. Muhammad Ali Khan P.W.1, Muhammad Iqbal Constable P.W.2, Muhammad Hafeez Khan Draftsman P.W.3, Sajjad Ahmed P.W.4, Muhammad Altaf Hussain P.W.5, Muhammad Arif P,W.6, Ghulam Hussain Constable P.W.7, Dr. Riaz Ahmed P.W. 8, Mazhar Hayat Constable P.W.9, Muhammad Aslam P.W.10, Mst. Bashiran Bibi P.W.11, Muhammad Asghar P.W.12 and Muhammad Anwar Rana, S.‑I. P.W.

13. The prosecution, however, gave up Zafar Ullah, Zafar Iqbal, Muhammad Aslam Constable and Shamsher Ali Constable being unnecessary. The petitioners, in their statements under section 342, Cr.P.C., denied the allegations levelled against them and stated that it was a blind murder, Ch. Nazir Lambardar was a big landlord of the village, they were labourers and do work on daily wages, and Ch. Nazir had been off and on persuading them to work on his fields to which they did not agree, therefore, he became annoyed and in collusion with the police got the said case registered against them. The learned trial Court on conclusion of the trial found the petitioners guilty under sections 394/302/324/34, P.P.C. for the murder of Sultan Ali and sentenced them to death plus fine of Rs.1,00,000 each or in default to. undergo ten years' R.I. Under section 324/34, P.P.C. they were sentenced to ten years' R.I. with fine of Rs.20,000 each or in default thereof to undergo two years' R.I. each for making murderous assault on Mst. Bashiran Bibi. They were also sentenced to ten years' R.I. plus fine of Rs.20,000 each under section 394/34, P.P.C. or. in default to undergo two years' R.I. each. The petitioners challenged their conviction and sentences through Criminal Appeal No.156‑J/1998 while the State filed Murder Reference No.206‑T of 1998 for confirmation of their sentences. The learned Division Bench of the High Court vide its judgment impugned herein dismissed the appeal of the petitioners and confirmed their death sentences.

3. We have heard the learned counsel for the petitioners at some length. According to him Mst. Bashiran Bibi P.W.11 who got injured in the incident, in cross‑examination, admitted that the accused at the time of occurrence, had muffled their faces, thus, it makes the identification of the p accused doubtful. He further submitted that the petitioners, three in number, have been sentenced to death for a single murder and an attempt to murder on Mst. Bashiran Bibi though it has not been established as to who inflicted the fatal injury to the deceased, thus, in the circumstances capital punishment was not warranted.

4. After hearing the learned counsel for the petitioners we grant leave to reappraise the prosecution evidence for safe administration of justice. The e question of limitation will also be considered at the time of hearing of the appeal. N.H.Q./S‑176/S Leave granted.