1990 PLP 1067 (SCMR)

Nemo for Respondents. Date of hearing: 15th January, 1990. SHAD SAOOD JAN, J.‑‑‑These are two petitions for special leave to appeal from the judgment dated 11‑1‑1988 of the Lahore High Court. These petitions arise in the following circumstances.

2. The petitioners in C.P. No. 76, six in number, were convicted by the Additional Sessions Judge at Sargodha of offences falling under section 302 (two counts) and 324, read with sections 149 and 1.18 of the Pakistan Penal Code. For the offences under section 302, Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz, petitioners, were sentenced to death while Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar, petitioners, were sentenced to suffer imprisonment for life. For the offences under sections 324 and 148 they were all sentenced to suffer different forms of imprisonment. They were also asked to pay fines. On appeal and reference, the High Court maintained the convictions of all the petitioners on the charges under sections 302, 324 and 148 but reduced the sentences of death awarded to Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz also to imprisonment for life. It dismissed the revision petition preferred by the complainant party for enhancement of the sentences awarded to Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar. The petitioners as well as complainant party seek leave to appeal from the judgment of the High Court.

3. The allegations against the petitioners were that on 16‑1‑1985 at 12‑45 p.m. they formed an unlawful assembly and in prosecution of the common object of the said unlawful assembly they caused the death of Mirza Khan and Ghulam Nabi, deceased, made a murderous assault upon Yasin and committed rioting. The occurrence took place in the civil lines area of Sargodha Cantonment at a distance of about 5 furlongs from the Police Station Cantonment and was reported to the Station House Officer of the said Police Station on the way side at 2‑30 p.m. by one of the eye‑witnesses namely, Sanaullah.

4. About 11 months prior to the occurrence, one Muhammad Ashraf, who was a real brother of Muhammad Nawaz, Muhammad Iqbal, Muhammad Sadiq, Muhammad Riaz and paternal‑uncle of Muhammad Arshad and Muhammad Ansar was murdered. For causing his death, Mirza Khan deceased, Sanaullah (that is, the complainant) and four other persons were challaned. On the day the present occurrence took place, Mirza Khan deceased and Sanaullah were on bail. The murder of Muhammad Ashraf was stated to be the motive for the present occurrence.

5. According to the prosecution at the relevant time Mirza Khan and his nephew Ghulam Nabi together with Muhammad Yasin and Sanaullah were going in a tonga to the District Courts in Sargodha. When they reached near the Government College, the six petitioners armed with daggers and knives confronted them. In order to save themselves, Mirza Khan and Ghulam Nabi ran in different directions. Muhammad Nawaz, Muhammad Riaz and Muhammad Sadiq ran after Mirza Khan while Muhammad Iqbal, Muhammad Ansar and Muhammad Arshad chased Ghulam Nabi. Both the deceased were overtaken by the pursuers and attacked them with daggers and knives. Muhammad Yasin tried to save Ghulam Nabi. He was struck with a knife by Muhammad Nawaz. Both Mirza Khan and Ghulam Nabi died at the spot. The subsequent post‑mortem examination revealed that Mirza Khan had' received eight stab wounds while Ghulam Nabi received twenty‑one incised wounds.

6. At the trial the petitioners pleaded not guilty to the charges against them. They denied that they were responsible for causing the death of Ghulam Nabi and Mirza Khan or had made any attack on Yasin. They did not lead any evidence in their defence.

7. In support of its case against the petitioners the prosecution relied upon the ocular testimony furnished by Muhammad Yasin (PW 7) and Sanaullah (PW 8). It also led evidence with regard to recovery of blood‑stained weapons at the instance of petitioners but it was rejected by the trial Court and also excluded from consideration by the High Court. The trial Court as well as the High Court took the view that the ocular testimony furnished by the two eye‑witnesses was credible enough to convict the petitioners of the offences with which they were charged.

8. In support of Cr.P.S.L.A. No. 76, it is contended by Sh. Shaukat Ali, who has appeared on behalf of the petitioners, that the presence of Sanaullah at the scene of occurrence at the relevant time was extremely doubtful, for, had he been present there, he would not have been spared by the assailants. He explains that Sanaullah was one of the accused in the case relating to the murder of Muhammad Ashraf while Ghulam Nabi was not. It. was therefore unlikely that instead of following Ghulam Nabi the assailants would not have gone after Sanaullah. It is also contended that Yasin's testimony was also suspected for his injuries were of a nature, which could be easily fabricated. There was no satisfactory explanation for Yasin's presence on the spot and there were good reasons to believe that he was a false witness.

9. In support of the petition filed by the complainant party, Mr. Ijaz Hussain Batalvi has contended that both Mirza Khan and Ghulam Nabi were done to death in cold blood and the reasons given by the High Court for not enhancing the sentence of Muhammad Arshad, Muhammad Ansar and Muhammad Sadiq and reducing the sentences of Muhammad Iqbal, Muhammad Riaz and Muhammad Nawaz were legally not sustainable. The motive for the occurrence was revenge for the murder of Muhammad Ashraf and such a motive could not furnish any justification to the assailants to take law into their own hands.

10. After hearing learned counsel for both parties we consider that the contentions raised in both petitions require consideration. Accordingly, leave is granted in both petitions. N.H.Q./S‑510/S Leave granted.