1987 PLP 1074 (SCMR)

SAAD SAOOD JAN, J.‑‑For causing the death of Abdul Sattar alias Shaddi deceased, two real brothers, namely, Tahir alias Tahri (aged: 20 years) and Zahid alias Billu (aged: 18 years) were tried by Additional Sessions Judge, Sahiwal for an offence under section 302, read with section 34, of the Pakistan Penal Code. The learned Additional Sessions Judge found them guilty. He sentenced Tahir to death and Zahid to imprisonment for life, in addition to fine. On appeal by the two brothers and the reference made by the Additional Sessions Judge, the High Court upheld the conviction and sentence of Tahir but acquitted Zahid. Tahir seeks leave to appeal against his conviction and sentence. Abdul Salam, a brother of the deceased, too seeks leave to appeal to challenge the acquittal of Zahid.

2. The occurrence took place on0 14‑3‑1977 at 1‑00 p.m., on Ansaar Road, near Chowk Bohrwala in Sahiwal Town. A day prior to the occurrence the deceased had allegedly beaten up Tahir in a cinema house. On the day of occurrence the deceased and his brother Abdul Salam were going to their shop when they met Tahir and Zahid. Tahir asked the deceased why he had beaten him in the cinema house. Immediately thereafter Zahid held the deceased in a Japha and Tahir took out a knife with which he inflicted two blows on the chest of the deceased. On the alarm raised by Abdul Salam two persons, namely, Zulfiqar Ali and Tariq Mehmood, were attracted to the spot. They too witnessed the occurrence. After the departure of the assailants the deceased was carried in a rickshaw to the civil hospital but he died on the way. Abdul Salam went to Police Station, A‑Division of Sahiwal Town where he lodged the F.I.R. at 2‑30 p.m.

3. Both Tahir and Zahid were arrested on the very day of occurrence. The Investigating Officer recovered a blood‑stained knife at the instance of Tahir from a garden. The blood on the knife was later found to be of human origin.

4. Tahir and Zahid pleaded not guilty at the trial and alleged that they had been falsely implicated. They did not lead any evidence in defence.

5. The case of the prosecution against the two brothers rested upon the ocular testimony provided by Abdul Salam (P.W.6), Tariq Mehmood (P.W.7) and Zulfiqar Ali (P.W.8). In respect of Tahir the prosecution also relied upon the recovery of a blood‑stained knife at his instance. Relying upon the ocular testimony and also on the recovery evidence the learned Additional Sessions Judge convicted and sentenced them in the manner stated above. The High Court also found the ocular as well as the recovery evidence credit‑worthy. However, it acquitted Zahid for the reasons that he was only 14 or 15 years at the relevant time, that he was not carrying any arm and that there was no evidence which indicated that he knew that his brother had a knife with him.

6. In support of the petition filed by Tahir it is stated that all the eye‑witnesses could be present at the spot only by chance and that they were neither disinterested nor reliable. Abdul Salam was a brother of the deceased. Had he been actually present at the spot he would not have allowed his brother to be attacked by two teen‑agers who were not numerically superior to him and his brother. There was evidence to indicate that Tariq Mehmood (P.W.7) was a stock witness of the police and that Zulfiqar (P.W.8) was a close associate of the complainant party inasmuch as he was involved in a number of criminal cases along with them. Although the deceased had suffered from injuries which had bled professedly yet, no blood‑stained earth was recovered by the Investigating Officer from the alleged scene of occurrence. This indicated that the occurrence had not taken place at the place suggested by the prosecution. It is also contended that at the time of the alleged occurrence Tahir was a minor, being 16 or 17 years of age, and as such this was in any event not a case where the death penalty should have been imposed.

7. In support of the petition filed against the acquittal of Zahid it is stated that the High Court was not right in disbelieving the ocular testimony in respect of Zahid on the grounds given by it. There was no previous enmity between the parties and thus there was no motive for the eye‑witnesses to falsely implicate him in the case.

8. The contentions raised on behalf of both parties need further examination. Leave to appeal is granted in both petitions. Let bail able warrants in the sum of Rs.20,000 with two sureties in the like amount returnable to the District Magistrate, Sahiwal be issued against Zahid. M.I./T‑8/S Leave granted.