1987 PLP 454 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑Muhammad Saqlain, Nazar Hussain Muhammad ldris, Muhammad Younas and Zulqarnain were tried for the murder of Said Amir and Muhammad Hussain by the learned Sessions Judge, Jhelum who found them guilty except Zulqarnain, and awarded death sentence and fine of Rs.2,000 each to Muhammad Saqlain and Nazar Hussain on two counts, under section 302/34, P.P.C. and life imprisonment and fine of Rs.1,000 each to Muhammad Idris and Muhammad Younas on two counts, under section 302/34, P.P.C. and all the above‑named four accused/ petitioners were sentenced to 10 years' R.I. and fine of Rs.1,000 each under section 307/34, P.P.C. for causing injuries to Muhammad Bashir. The accused/ petitioners filed appeal in the Lahore High Court which was dismissed vide the impugned judgment, dated 17‑2‑1985 and death sentence was confirmed.

2. According to the prosecution version on 30‑3‑1981 at 5‑30 p.m. Anar Khan complainant, along with Muhammad Hussain his brother, and Said Amir and Muhammad Bashir his sons, were sitting in the Baithak of retired Subedar Lal Khan. In the meantime Nazar Hussain, Muhammad Idris, Muhammad Saqlain, Zulqarnain and Muhammad Younas passed in front of the Baithak and Muhammad Hussain remarked that Khan Muhammad Chairman has been removed from his office. On hearing this Nazar Hussain started abusing the deceased Muhammad Hussain and they also returned the abuses to Nazar Hussain. The later threatened that he would get even with them and left. Complainant party also went to their house and saw Nazar Hussain, Muhammad ldrees, Muhammad Saqlain and Muhammad Younas, armed with guns, and Zulqarnain, armed with a stick, climbing over the roof of the house of Muhammad Qasim, and challenged the complainant party. Muhammad Idrees fired which hit Muhammad Bashir P.W. 10 on his thigh. Muhammad Younas followed suit and with his shot Said Amir was hit on his right shoulder, then Muhammad Saqlain fired at Said Amir hitting him on his head and he died instantaneously. Muhammad Hussain tried to climb over the roof of the house of Afzal when Nazar Hussain fired hitting him on his head and he died then and there. Zulqarnain was exhorting the other accused to kill every one of the complainant party. Motive for the crime is stated to be that Khan Muhammad was removed from the Chairmanship over which the complainant party was jubilant.

3. Learned counsel for the petitioners contended that the evidence of the eye‑witnesses cannot be safely relied upon particularly when they are all interested and related closely to the deceased and when their evidence is in conflict with the medical evidence. According to the eye‑witnesses, the assailants and the deceased were looking face to face at the time when the shots were fired but the seats of the injuries and the direction from where the injuries appear to have been caused, falsify it; that the learned trial Court while disbelieving the motive, was not justified to convict the accused/ petitioners on ocular evidence and the doubtful recovery of guns. It is further contended that the learned trial Court as well as the learned High Court have come to the conclusion that involvement of Zulqarnain, the acquitted co‑accused, was false but erred to convict the petitioners on the same evidence which proposition is not permissible under the criminal justice. It was lastly urged that the evidence on record shows that it was a free fight and both the parties resorted to firing, and, therefore, extreme penalty of death awarded to the accused/ petitioners Muhammad Saqlain and Nazar Hussain is uncalled for. It was also pointed out by the learned counsel that the provocation was from the side of the complainant party who had taunted the accused /petitioners over the removal of Khan Muhammad from the Chairmanship of Council, and, hence, the sentence awarded is too harsh and uncalled for.

4. We have gone through the evidence and judgments of the Courts below and find no substance in the arguments advanced on behalf of the accused /petitioners. There was no background of any other enmity and the reason for false charge against the accused /petitioners is unbelievable. The occurrence has been witnessed by the relatives of the deceased and their testimony cannot be discredited for the reason of their relationship with the deceased. Both the deceased had sustained fire‑arm injuries and the two accused /petitioners had been directly charged for firing at the complainant party. Muhammad Bashir P.W. 10 sustained injuries in the same occurrence and his statement is to the effect that he along with the deceased and the other witnesses were sitting on the Thara of their house when they heard Lalkara by Zulqarnain and saw all the five accused on the roof top of the house of Muhammad Qasim. He described the manner in which the accused/ petitioners were armed and the sequence in which they started firing. He was hit on the left thigh with a shot fired by Muhammad Idrees. He further stated that Muhammad Younas accused fired at Said Amir deceased which hit him on the shoulder; Muhammad Saqlain fired a shot which hit Said Amir on his head and he died there and then, and Muhammad Hussain deceased was fired at by Nazar Hussain which hit him on his head and he died instantaneously. This statement cannot be brushed aside. Net result of this is that we find no merit in this petition which is, consequently, dismissed. M.I. /4427/S Petition dismissed.