1989 SCMR 1712 (PLP)

SAAD SAOOD JAN, J.‑‑These are two petitions for special leave to appeal from the judgment of the Lahore High Court whereby while maintaining the conviction of Muhammad Fazil, respondent, on two charges under section 302 and one under section 307, Pakistan Penal Code, it reduced the sentence of the respondent from death to imprisonment for life. One of the petitions has been filed by the respondent to challenge his convictions and sentences and the other has been filed by the complainant party for the restoration of the sentence of death imposed upon the respondent by the trial Court.

2. The occurrence took place on 25‑5‑1983 at 6.30 a.m. It was alleged by the prosecution that shortly before the occurrence there was an exchange of abuses between the respondent on the one side and Muhammad Zaman and his brother Mian Khan on the other. The noise generated by the brawl attracted a number of persons including Muhammad Riaz, Suleman and Yousuf to the spot. The Is cspondent ciimbed on the roof of his house with a gun and fired twice. As a sult Suieman and Riaz were hit and Yousuf was hurt in his right leg. Suleman rind Riaz died at the spot. The occurrence was reported at Police Station Lala tlusa by Muhammad Zaman at 7 a.m,

3. The motive for the occurrence was stated to be a dispute over a plot of land in regard to which a suit for pre‑emption was pending. The cage of the prosecution was that on account of this dispute the respondent was annoyed with the complainant and his family for he thought that they were helping the opposite party. 4.At the trial, the respondent did not deny that he was responsible for killing Suleman and Riaz and injuring Muhammad Yousuf with gun‑fire. His case was that he had a young daughter by the name of Gulzar Mufeez who was studying in a college. Riaz, Suleman and Yousuf used to tease her. He had protested with them a number of times but without any effect. At the time of occurrence, Riaz and Suleman deceased armed with hatchets and Yousuf with a Sota trespassed into his house and attempted to abduct his daughter. When his wife tried to intervene, she was given kick and fist blows. In order to save his daughter, he fired at the intruders. He produced his daughter to support his version.

5. The case of the prosecution was supported at the trial by 3 eye‑witnesses, namely, Muhammad Yousuf (P.W. 4), Muhammad Zaman (P.VV. 5) and Riayasat Ali (P.W. 8). The High Court as well as the trial Court rejected the defence version, accepted the ocular version and convicted the respondent of offences under sections 302 and 307 of the Pakistan Penal Code.

6. In support of the petition filed by the convict it is stated that the version of the prosecution is founded only upon interested evidence given either by interested witnesses or a chance witness. Thus, Muhammad Yousuf (P.W.4) was a brother‑in‑law of Suleman deceased while Zaman (P.W.5) was a brother of Riaz deceased. Riayasat All (P.W.8) did not live in the locality and it appeared that he had been substituted for anther witness of the same name and parentage. The occurrence took place in front of the house of the convict and his version which was supported by the testimony of his daughter could not be lightly rejected. In support of the petition filed by the complainant, it is contended that the reasons given by the High Court for not confirming the sentence of death are not sustainable.

7. After hearing learned counsel for both the parties, we consider that the reasons given by the High Court in rejecting the defence version or not imposing the sentence of death need examination. Leave to appeal is granted in both the petitions. M.A.K./M‑938/S Leave granted.