1994 PLP 1143 (SCMR)

MANZOOR HUSSAIN SIAL, J.‑‑‑Mahmood Ahmed, petitioner in Criminal Petition No.189‑L of 1993, and Muhammad Aslam and another, petitioners in Criminal Petition No.199‑L of 1993, seek leave to appeal against judgment dated 17‑2‑1993, of a learned Judge of the Lahore High Court (Multan Bench) whereby he disposed of Criminal Appeal No.5/1991 and Criminal Revision No.29 of 1991 together.

2. The prosecution case against the accused was that on 4‑9‑1979, at about 5.30 p.m. Muhammad Aslam and Muhammad Yaqoob petitioners armed with saryas and Arshad with hatchet were sitting in the baithak of Muhammad Aslam alongwith the acquitted co‑accused. They attacked Mahmood complainant P.W.8, when he passed in front of the house of Muhammad Aslam. The petitioners gave Sarya blows to him. On raising alarm Noor Ahmad, Mubarik, Muhammad Khan, Mst. Aisha and Mst. Sakina reached the spot and intervened. Mst. Aisha and Mst. Sakina received injuries from Muhammad Aslam. Noor Ahmad, Mubarik and Muhammad Khan P.Ws. were also injured in the occurrence. Afterwards Mst. Aisha, succumbed to the injuries in the hospital. The motive of the occurrence given by the prosecution was that the complainant Mahmood Ahmad, got a case registered against Muhammad Akram brother of Muhammad Aslam, petitioner, in the Anti‑Corruption Department. The accused wanted the complainant to resile from his statement, on his refusal he felt annoyed and attacked him alongwith his co- accused.

3. Muhammad Aslam and Muhammad Yaqoob petitioners alongwith Muhammad Arshad, Ahmad Din, Ibrahim, Ikramul Haq and Muhammad Ramzan were tried under section, 148/302/307/149 P.P.C. by learned Additional Sessions Judge, Multan, for causing murder of Mst. Aisha and mounting murderous assault on other P.Ws. The learned trial Judge on 30‑11‑1980, convicted Muhammad Aslam, Muhammad Yaqoob and Muhammad Arshad accused under section 302/34, P.P.C. and sentenced them to life imprisonment with fine and under section 307/34, P.P.C. to 3 years R.I. with fine. He, however, acquitted all the rest of the accused.

4. In appeal the learned Single Judge of the Lahore High Court vide impugned judgment dated 17‑2‑1993, acquitted Muhammad Arshad, and altered, the conviction of Muhammad Aslam and Muhammad Yaqoob, petitioners from section 302/34 P.P.C. to 304 Part‑I, read with section 34 P.P.C. and reduced their sentences to ten years R.I. each. The Criminal Revision No.29/1981 filed by Mahmood complainant seeking enhancement of their sentences was dismissed.

5. The petitioners/convicts maintained that the prosecution failed to bring home their guilt beyond reasonable doubt. The ocular evidence was unreliable, motivated with enmity and lacked corroboration on material points. The observations made by the trial judge while evaluating the evidence and the High Court while disposing of the appeal, by the impugned judgment, entitled the petitioners to clear acquittal. On the contrary the learned counsel for the complainant vehemently urged that the learned Courts below misread evidence on the record. The observation made in the impugned judgments were uncalled for. Learned counsel also challenged the acquittal of Muhammad Arshad respondent and alteration of the conviction from section 302/34, P.P.C. to section 304 Part I read with section 34, P.P.C. and reduction in sentences awarded to Muhammad Aslam and Muhammad Yaqoob respondents in the connected petition.

6. After hearing learned counsel for the parties who have criticised the impugned judgment in their own way. We find that the judgment of the High Court has certain features which would justify grant of leave to appeal in both of these petitions with a view to ensure that the principles applicable to the safe administration of criminal justice have been duly observed in the case. Hence leave to appeal is granted in both the petitions.

7. Bailable warrants shall issue against Muhammad Arshad (respondent No.2 in Cr.P.189/1993) in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of District/Duty Magistrate, Khanewal. N.H.Q./M‑1913/S Leave granted.