1988 PLP 1752 (SCMR)

‑‑‑Ss. 302 & 304, Part I‑‑Constitution of Pakistan (1973). Art.185(3)‑ Petition against conviction‑‑Appraisal of evidence‑‑Safe administration of criminal justice‑‑Leave to appeal granted to examine as to whether the appraisal of evidence in the case has been made by High Court in accordance with well‑established principles of safe administration of criminal justice. (b) Penal Code (XLV of 1860)‑‑ ‑‑‑Ss.302/34 & 304, Part I‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Petition against acquittal/ alteration of sentence from death to imprisonment for life‑‑Appraisal of evidence‑‑Safe administration of criminal justice‑‑Leave to appeal granted to examine as to whether the appraisal of evidence in the case has been made by High Court in accordance with well‑established principles of safe administration of criminal justice. Raja Muhammad Anwar, Senior Advocate Supreme Court, Khalid Iqbal Kazi, Advocate Supreme Court instructed by Manzoor Elahee, Advocate‑on‑ Record for Petitioner (in Petition No.131‑R of 1987). M.B. Zaman, Senior Advocate Supreme Court instructed by Ch. Akhtar Ali. Advocate‑ on‑Record for Respondent No.1 (in Petition No.131‑R of 1987 and for Petitioner in Petition No.377 of 1987). M. Nawaz Abbasi, Assistant Advocate‑General instructed by Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Respondent No.4 (in Petition No.131‑R of 1987). Nemo for Respondents Nos.2 and 3 (in Petition No.131‑R of 1987 and for the State in Petition No.377 of 1987). Date of hearing: 27th June, 1988. JAVID IQBAL, J.‑‑Criminal Petition No.131‑R of 1987 for leave to appeal has been filed by Mian Ahmad complainant‑petitioner and is directed against the judgment of the Lahore High Court, Lahore dated 6th October, 1987 whereby Sultan Masood and Muhammad Tariq co‑accused were acquitted and the conviction of Sultan Mubaraz convict was altered from section 302 , P . P . C . to section 304 , Part I , . P.P.C. and his sentence was altered from death on two counts to imprisonment for life plus fine on two counts. Criminal Petition No.377 of 1987 for leave to appeal has been filed by Sultan Mubaraz petitioner against his conviction and sentence by the same judgment. Since these petitions are connected these are being taken up and heard together. Briefly the facts are that Sultan Mubaraz, Sultan Masood and Muhammad Tariq were tried for an offence under section 302/34, P.P.C. and the Additional Sessions Judge, Attock convicted all the three of [hem under section 302/34, P.P.C. and each of them was sentenced to death on two counts plus fine on two counts. In appeal the Lahore High Court, Lahore acquitted Sultan Masood and Muhammad Tariq, and altered the conviction and sentence of Sultan Mubaraz as stated above. The two deceased in the instant case are Ghulam Nabi and Sultan Muhammad. The occurrence took place on 5th October, 1983 at 9 a.m. in the field situate in the area of Mauza Khetar Loharanwali. F.I.R. was lodged by Mian Ahmad complainant on the same day at 12‑30 p.m. at Police Station, Pindi Gheb. The three accused were arrested on 8th October, 1983. Sultan Mubaraz was stated to be armed with gun and the allegation against him is that he alone fired shots at the deceased Sultan Muhammad. Sultan Masood and Muhammad Tariq were armed with hatchets and they both along with Sultan Mubaraz had caused injuries to Ghulam Nabi deceased who according to the medical evidence had not only fire‑arm injuries on his person but also injuries caused with sharp‑edged weapon and blunt weapon. According to the medical evidence Sultan Muhammad deceased only had fire‑arm injuries. Sultan Masood is son of Sultan Mubaraz whereas Muhammad Tariq is his son‑in‑law. There are two eye‑witnesses of the occurrence produced namely Mian Ahmad who is brother‑in‑law ,(Sala) of Ghulam Nabi deceased and Muhammad Rafiq who is son of Sultan muhsmmad deceased. From Sultan' Mubaraz was recovered .12 bore gun which matched with the crime empties picked up from the spot. The motive for crime is that there was a dispute over land between Ghulam Nabi deceased on the one side and Sultan Mubaraz on the other, and it was in. this background that the three accused had committed the murders of Ghulam Nabi and Sultan Muhammad with their common intention. It may be pointed out at this stage that so far as Sultan Muhammad deceased is concerned he was the tractor owner and was driving the tractor at the time of occurrence. He, therefore, was not directly connected with the motive. The argument of learned counsel for Mian Ahmad complainant petitioner in Criminal Petition No.131‑R of 1987 is that his son Muhammad Rafiq who was eye‑witness of the occurrence had no enmity with the accused side and that, therefore, if he had stated that Sultan Masood and Muhammad Tariq were also present along with Sultan Mubaraz and had participated in the occurrence, then he should have been believed by the Lahore High Court, Lahore and on the basis of his testimony which was being supported by the statement of Mian Ahmad complainant as well as medical evidence should have been relied upon. Thus, according to him there was no justification for acquitting Sultan Masood and Muhammad Tariq. It was next submitted that the Lahore High Court, Lahore erred in arriving at the conclusion that Sultan Mubaraz exceeded in the exercise of his right of the defence of property while he committed double murder. According to the learned counsel this conclusion was not justified so as to alter his conviction and sentence in the circumstances of the case. It was then submitted that the assertion of Sultan Mubaraz to the effect that he had committed the double murder in the exercise of his right of self‑defence as well as defence of property and that it was he alone who used different kinds of weapons to commit the two murders was not plausible and the Lahore High Court, Lahore on the basis of his statement committed an error in arriving at the conclusion that he alone was responsible for the double murder and had exceeded his right of defence of property. According to the learned counsel the prosecution version is the correct version and it is to the effect that Mian Ahmad complainant alongwith Muhammad Rafiq and Muhammad Aziz as well as the two deceased went to the spot for sowing the grain seeds in the land of Ghulam Nabi deceased. After placing the grain seeds in the field both the deceased went to the road for bringing the tractor and while they were coming on the tractor and had reached near the field of Sultan Mubaraz, he armed with .12 bore gun, Sultan Masood and Muhammad Tariq armed with hatchets emerged from the bushes and attacked them. Sultan Muhammad deceased received fire‑arm injuries at the hands of Sultan Mubaraz whereas all the three accused caused injuries to Ghulam Nabi deceased with their respective weapons. After hearing learned counsel we grant leave in both the petitions in order to examine as to whether the appraisal of evidence in the case has been made by the Lahore High Court, Lahore in accordance with the well‑established principles of safe administration of criminal justice. Bail able warrants in the sum of Rs.20,000 each with one surety each in the like amount to the satisfaction of the District Magistrate Attock be issued against Sultan Masood and Muhammad Tariq. M.I./A‑280/S Leave granted.