1987 PLP 1728 (SCMR)

SAAD SAOOD JAN, J.‑‑ These are two petitions for special leave to appeal from the judgment dated 16‑6‑1986 of the Lahore High Court.

2. Five persons, namely, Chan Peer Shah, Aulad Hussain Shah alias Phul Pir, Sabir Hussain Shah, Abuzar Hussain Shah and Musaddin. Hlissain Shah, were tried by the Additional Sessions Judge at Sialkot for offences falling under section 302, read with section 149 and section 148 of the Pakistan Penal Code for causing the death of Mst. Nasim Akhtar and Mst. Khalida Bibi and committing rioting. Chan Peer Shah was acquitted by the learned Additional Sessions Judge of all the charges while the other four were convicted on two counts under section 302, read with section 34, alone. Aulad Hussain Shah and Sabir Hussain Shah were sentenced to death whereas Musaddiq Hussain Shah and Abuzar Hussain 5hntl were serueneed to suffer imprisonment for life. They were also directed to pay fines and compensations to the heirs of the two deceased women.

3. On appeal by the convicts and reference by the trial Court the High Court acquitted Musaddiq Hussain Shah and Abuzar Hussain Shah but upheld the convictions of Aulad Hussain Shah and Sabir Hussain Shah. It also reduced their sentences of death to sentences of imprisonment for life. The revision petition preferred by the complainant party against the acquittal of Chan Peer Shah was dismissed. Aulad Hussain Shah and Sabir Hussain Shah have preferred a joint petition for leave to appeal against their conviction and sentences. Similarly the complainant has filed a petition for leave to appeal to call in question the acquittal of Chan Peer Shah, Abuzar Hussain Shah and Musaddiq Hussain Shah and to seek enhancement of the sentences awarded to Aulad Hussain Shah and Sabir Hussain Shah.

4. Abuzar Hussain Shah is the son of Sabir Hussain Shah and Sabir Hussain Shah is the son of Chan Peer Shah. Musaddiq Hussain Shah is the son of Aulad Hussain Shah. Chan Peer Shah and Aulad Hussain Shah are real brothers. They have a gaddi where the annual urs had taken place a day before the present occurrence.

5. According to the prosecution one Mohammad Younis purchased about four acres of land in village Wance which was already under his cultivation as tenant. Chan Peer Shah and his family wanted to purchase this land for themselves and as such they were unhappy over this transaction. In order to prepare the ground for filing a suit for pre‑emption they instigated one Muhammad Khan to file an application before the local Revenue Officer for the correction of the khasra girdawari in order to get rid of the entry in the record wherein Muhammad Younis had been shown as tenant of the land in dispute. The Revenue Officer started an inquiry. In the course of the inquiry one Ghulam Mustafa and two of the accused appeared as witnesses for Muhammad Khan.

6. It was further alleged by the prosecution that on 23‑5‑1983 at dopehrwela Muzaffar Saeed (PW‑9), son of aforementioned Muhammad Younis. and C,hulam Hussain (PW‑19) met Ghulam Mustafa in the village. They accused him of committing perjury against them. Ghulam ,Mustafa felt annoyed and this led to an exchange of abuses and scuffle between them. On hearing about this brawl Mst. Nasim Akhtar and Mst. Khalida Bibi arrived at the spot. They were followed by Chan Peer Shah, Sabir hussain Shah, Abuzar Hussain Shah, Aulad Hussain Shah and Musaddiq Hussain Shah. Chan Peer Shah, Sabir Hussain Shah and Aulad Hussain Shah had revolvers with them, Musaddiq Hussain Shah was carrying a shot gun while Abuzar Hussain Shah was armed with a carbine. Chan Peer Shah raised a lalkara and fired with his revolver but no one was hit. The two women interceded to pacify the accused persons. On this Aulad Hussain Shah fired at Mst. Nasim akhtar and Sabir Hussain Shah fired at Mst. Khalida Bibi. Both were hit Thereafter Musaddiq Hussain Shah and Abuzar Hussair Shah indulged in some ineffective firing. Immediately after the occurrence Mst. Nasim Akhtar and Mst. Khalida Bibi were taken to the Civil Hospital at Chowinda. iMst Nasim Akhtar died on the the way. Mst. Khalida Bibi lingered on in a hospital for about three months before she too succumbed to her injuries. The occurrence was reported at Police Station Phulwara on the same day by Muzaffar Saeed (PW‑9) at 4.30 p.m.

7. At the trial all the five accused pleaded not guilty to the charges against them. They denied that they were responsible for causing the death of Mst Nasim Akhtar or Mst. Khalida Bibi and alleged that they had been falsely implicated in this case on account of enmity and suspicion. In defence they produced an assistant licence clerk from the local ‑Deputy Commissioner's office who stated that Chan Peer Shah and Aulad Hussain Shah possessed licences for keeping fire‑arms.

8. At the trial the case of the prosecution against the five accused persons rested upon the ocular testimony of three witnesses, namely, Muzaffar Saeed (PW‑9), Saeed Ahmad (PW‑10) and Muhammad Khan (PW‑12) and the dying declaration made by Mst. Khalida Bibi before a Magistrate on 14‑6‑1983.

9. The learned trial Court was of the view that all the three eye‑witnesses were natural witnesses, particularly Saeed Khan (PW‑10) and Muhammad Khan (PW‑12) who lived in the vicinity of the place of occurrence. It also found the dying declaration to be worthy of credit. However, it gave the benefit of doubt to Chan Peer Shah on the grounds that one of the investigating officers had upheld his plea of alibi; that, on account of his extreme old age, he was not likely to take part in the occurrence; and that being the head of the family there was a probability of his false involvement in the case. Accordingly, it acquitted Chan Peer Shah but convicted and sentenced the other four accuse persons in the manner already indicated.

10. The High Court upheld the acquittal of Chan Peer Shah and gave the benefit of doubt to Musaddio Hussain Shah and Abuzar Hussain Shah also after holding that the motive had not been established and the prosecution had cast its net wide and made efforts to involve male members of the family of Chan Peer Shah. It maintained the convictions of Aulad Hussain Shah and Sabir Hussain Shah but did not confirm their sentences of death for the reason that the motive for the occurrence was shrouded in mystery'.

11. On behalf of Aulad Hussain Shah and Sabir Hussain Shah it is contended that out of the five persons originally named by the complainant party as responsible of the occurrence, three have been acquitted on the same evidence which was against them. That being so, in the absence of any distinguishing feature their convictions could not be maintained. In support of the petition preferred by the complainant party it is contended that the trial Court and the High Court erred in acquitting Chan Peer Shah, Musaddiq Hussain Shah and Abuzar Hussain Shah as the evidence against them came from disinterested sources which could not be discarded. Apart from that it was not a case where motive .vas shrouded in mystery for there a which clearly indicated that the two women were shot at from a close range just for the reason that they were requesting the accused persons to let go the complainant party.

12. After hearing the learned counsel for the parties we are not inclined to interfere with the orders of acquittal recorded in the case of Chan Peer Shah, Musaddiq Hussain Shah and Abuzar Hussain Shah. However we grant leave to Sabir Hussain Shah and Aulad Hussain Shah against their convictions and sentences and to the complainant party which seeks restoration of the sentences of death awarded to Sabir Hussain Shah and Aulad Hussain Shah by the trial Court. K.B.A./A‑91/S. Leave granted,