1987 PLP 134 (SCMR)

Nemo for the State. Date of hearing: 29th October, 1986. S.A. NUSRAT, J.‑‑The petitioners herein were tried by the learned Sessions Judge of offences under section 302/307/365 and 14E of the Pakistan Penal Code read with section 149 P.P.C. for having murdered their co‑villager, Islam Shah, and causing injuries to Azhar Abbas, by making murderous assault on them after having formed an unlawful assembly and were convicted under section 302/307 of the Pakistan Penal Code and 365 read with section 34, P.P.C. Rehmat was sentenced to death and the petitioners Taj Din, Mairaj Din and Sanaullah were sentenced to life imprisonment acid fine of Rs.5,000 and rigorous imprisonment for two years each. The fine if realised, was ordered to be paid as compensation to the heirs of Islam Shah deceased. On charge under section 307 read with section 34 of the Pakistan Penal Code, each one of them was sentenced to rigorous imprisonment for ten years and fine of Rs.2,000 each or in default of payment of fine to suffer rigorous imprisonment for one year. The amount of fine if realised was ordered to be paid as compensation to Azhar Abbas. Under section 365 read with section 34 of the Pakistan Penal Code the petitioners were sentenced to suffer rigorous imprisonment for four years each. The three other persons, who were tried along with petitioners, namely, Barkat Ali, Amir and Tufail were acquitted.

2. The judgment of the trial Court was challenged in appeal by the petitioners which was dismissed by the Lahore High Court and has giving rise to the present petition for leave to appeal.

3. The occurrence had taken place on 19‑4‑1977 and the complaint was made by Islam Shah who later died on 22‑4‑1977. The eye‑witness account was furnished by injured witness Azhar Abbas P.W.6 and Kallu P. W.8. The statement of Kallu was, however, not relied upon by the trial Court as also the learned High Court. The conviction in the case is based on dying declaration made by Islam Shah and the oral testimony of Azhar Abbas.

4. Both Islam Shah and Azhar Abbas were inflicted nine injuries with sharp and blunt weapons. Out of nine injuries on the deceased four were caused with sharp‑edged and rest with blunt weapon. Azhar Abbas had suffered three blunt weapon injuries and the rest were caused with sharp‑edged weapon. A Mongli was recovered from Rehmat and a Modhi (wood) from Mairaj Din.

5. It was contended by the learned counsel for the petitioners that the recoveries made in the case were not reliable. The evidence of Azhar Abbas was also not reliable because he had made improvements. The petitioners were entitled to benefit of doubt in view of conflicting statement of Dr. Khalid Yazdani P.W.5 and Dr. Tahir Anees P.W.13 with regard to the nature of the injuries suffered by the deceased and Azhar Abbas.

6. We have gone through the impugned judgment as also the judgment of the trial Court and have particularly examined the statement of the deceased which provided the main basis for the conviction of the petitioners. The evidence in the case has been well‑appreciated and the learned counsel was unable to make out any case for grant of leave by pointing out any question of law which may require examination in the case. The petition is dismissed. M. I. Leave to appeal refused.