1990 PLP 616 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑‑Bo(h these petitioners arc directed against the same judgment of Lahore High Court dated 6‑7‑1980 by which appeals of the convicts in the case and the connected Murder Reference and Criminal Acquittal Revision were decided with the result that the appeals of the convicts were dismissed with certain modifications in their sentences; the Murder Reference was accordingly answered with those modifications and (he Acquittal Revision was dismissed. This is a triple murder case of deceased, Salch Muhammad, Ahmad Sher and Muhammad Sultan which occurred on 20‑7‑1983 at Peshiwella on the road in the area of Ukhli Mola at a distance of six miles from Police Station, Gunjial in which connection F.I.R. was lodged by Sher Ahmad, brother of Saleh Muhammad deceased. In all, seven persons were named as accused out of whom one, namely, Fazal Elahi was absconder, and Fateh Muhammad was acquitted by the Sessions Judge, Khushab, by the judgment dated 28‑6‑1984. The motive alleged by the prosecution was that Saleh Muhammad deceased had developed illicit relations with Mst.Nasreen, daughter of Faial Elahi absconder accused about 10 months before the occurrence. Faral Elahi along with others launched murderous assault on Saleh Muhammad and a case was registered under section 307, P.P.C. which was compromised during the course of investigation, but Fazal Elahi yet had harbored grudge which led to the present crime. According to the prosecution case, on the morning of the fateful day P.W. Sher Ahmad, Salch Muhammad deceased, Ahmad Sher deceased, Muhammad Sultan deceased, Jehan Khan P.W. and, one Jan Muhammad who was not produced as a witness at the trial, had gone to the village of Shaikhu to participate in the lunch hosted by Mushtaq Ahmad Mohajir. The prosecution party had engaged a taxi, and at Peshiwella while they were returning in the taxi, except for complainant who was on motor‑cycle alongwith .tan Muhammad, and reached near the scene of crime, a wagon in which accused party were travelling came and struck against the taxi whereupon accused Fazal Elahi, Hakam Khan and Muhammad Saleh who were armed with guns and Zafar lqbal and Muhammad Mu7affar armed with rifles came out and opened fire. Ahmad Slier and Muhammad Sultan opened the door of the taxi in order to escape and started running away at which the accused persons fired volley of shots, they luckily escaped unhurt but the three deceased persons succumbed to the volley of gun fires and died on the spot. Thereafter, the complainant Sher Ahmad went to lodge the report of the crime which was registered at about 4.30 p.m. At the trial, prosecution case was sought to be supported by the ocular testimony of two witnesses. It may be mentioned that after the accused persons were arrested, it is said that they led to the recoveries of crime weapons from their respective houses. These weapons were sought to be connected with the crime empties according to the prosecution evidence but the learned trial Judge discarded these pieces of circumstantial evidence on the ground that the crime empties had been sent together with the crime weapons. It was on the basis of the ocular testimony of the two eye‑witnesses that the learned trial Judge held accused guilty of the crime and awarded death sentence to them. lie however acquitted Fateh Muhammad accused as the only piece of prosecution evidence which was sought to connect him with the crime was the delay in obtaining petrol for the taxi which circumstance was sought to connect him with the crime. The case then came up before the High Court on appeal and on a Murder Reference alongwilh an Acquittal Revision filed by the complainant with the result that while the death sentences of Hakam Khan, Ahmad Yar and Muhammad Khan were confirmed, the convicts Zafar Iqhal and Muhammad Muraffar were awarded the lesser penalty of imprisonment for life. By the Criminal .Revision the complainant sought enhancement of the sentences, reversal of the acquittal of Faleh Muhammad and the enhancement of compensation amounts but the revision application was dismissed. It is in these circumstances that the case has come up before us in these two petitions, the former namely Cr.P.No.58‑R of 1986 at the instance of the 5 convicts and the other namely, Cr.P.No.307‑R of 1986 by Sher Ahmad who seeks enhancement of compensation amount to he awarded to the heirs of the deceased in respect of the convicts who are sentenced to death and also the enhancement of sentence of the remaining two to death and reversal of the acquittal of Fateh Muhammad under section 302 by way of re‑trial of the case against him. Mr. Muhammad Hayat Junejo, learned counsel appearing in support of the Criminal Petition No.58‑R of 19Wi took us through the record of the case and submitted that the learned Judges have seriously erred in relying upon the testimony of the two alleged witnesses, and in any case failed to conform to the principle laid down by this Court that interested testimony requires independent corroboration which is lacking in this case. On the other hand, Mr.Aftab Farrukh, learned counsel submitted that the reasons which prevailed with the learned Judges in the High Court for reducing the sentences of the convicts Zafar Iqhal and Muhammad Muzaffar arc wholly untenable in law. He did not press for the enhancement of compensation amount in respect of the convicts, but however submitted that the acquittal of respondent Fateh Muhammad is not on valid grounds in law. After having heard the learned counsel for the parties we feel that the question whether conviction of the five convicts in the case is based on well‑settled principles of criminal justice deserves consideration. We, therefore, grant leave to appeal in Cr.P.L.A. No.58‑R of 1986. However, in respect of CrY.L.A. No.V7‑R of 1980 we are prima facie impressed with the plea that the reduction of sentences of Zafar lqbal and Muhammad Muzaffar was not justified if they arc guilty of the crime. In order to a examine this submission only we grant leave but otherwise dismiss it so far as Fateh Muhammad respondent is concerned. The appeals arising out of these petitions will be heard together on the present record at an early date. It is however open to the parties to file additional documents, if any. N.H.Q./H‑88/S Order accordingly.