1987 PLP 534 (SCMR)

Date of hearing: 13th January, 1987. MIAN BURHANUDDIN KHAN, J.‑‑ Mushtaq Ahmad, Shahid alias Shahdo, Tariq Javed alias Taro and Taj Din were tried by the learned Additional Sessions Judge, Gujranwala under section 302/307/324 read with section 34, P.P.C. for committing the murder of Muhammad Din and Muhammad Ibrahim, and attempting to murder Muhammad Boots P.W. causing injuries to Muhammad Arif P.W. Mushtaq, Shahid and Tariq were convicted under section 302134, P.P.C., on two counts, and were sentenced to death and fine of Rs.5,000 each; they were also convicted under section 307/34, P.P. C. for attempting to commit the murder of Muhammad Boota and sentenced to 5 years' R.I. and fine of Rs.2,000 each, and were further convicted under section 324/34, P.P.C. for inflicting injury to Muhammad Arif P.W. sentenced to two years' R.I each; while Taj Din was convicted under section 302/34, P.P.C. and was awarded imprisonment for life on two counts i.e for the murder of Muhammad Din and Muhammad Ibrahim, and fine of Rs.5,000 each on each count vide judgment, dated 22‑2‑1982. The convicts filed appeal in the Lahore High Court against their conviction and sentence and the learned Judge as maintained the conviction of Shahid alias Shahdo and Tariq Javed alias Taro under section 302/34, P.P.C. on two counts, and murder reference was decided accordingly; and their conviction under sections 307/34 and 324/34, P.P.C. were also maintained; the conviction of Mushtaq Ahmad and r section 302/34, P.P.C. on two counts, was maintained but his death sentence was altered to imprisonment for life whereas his conviction for the other offences were maintained; while the appeal of Taj Din was accepted and he was acquitted vide the impugned judgment dated 18‑3‑1985.

2. The petition arises out of, the following facts: On 27‑71979 at about 4 p.m. a Kite in the air was chased by the boys for catching it. Muhammad Riaz, nephew of Muhammad Boots complainant P.W.6 caught the kite which resulted in quarrel between him and other boys of the Mohallah namely Chhandu and Mottu. They were separated by Muhammad Boota P.W.6. A shortwhile, thereafter, accused petitioners Mushtaq, Shahid alias Shahdo, armed with Chhuris came to the house of Muhammad Boota. They raised Lalkara which attracted Liaqat Ali and Muhammad Amin (not produced). They intervened and took the Chhuris from the accused petitioners Mushtaq and Shahid and sent them back to their house. At 8 p.m. on the same evening Muhammad Boota P.W.6 was proceeding to bring fodder for his horse. On his way he found the accused/ petitioners Mushtaq, Shahdo, Tariq and Taj Din standing in front of their house. Mushtaq, Shahdo and Tariq attacked Muhammad Boota with daggers and wounded him. Muhammad Boota started running towards the Dera of his brother Muhammad Din and the accused followed him. Muhammad Din and his servant Muhammad Ibrahim came out on the alarm of Muhammad Boota. Taj Din the acquitted accused is said to have caught hold of Muhammad Din and thereafter, Shahdo accused/ petitioner gave dagger blow to Muhammad Din and Mushtaq accused gave dagger blow on his thigh, while the accused/ petitioner Tariq attacked Muhammad Ibrahim and gave him dagger blows on the left side of his buttock. Both the deceased fell down. The occurrence was witnessed by Muhammad Sadiq P.W.8 and Abdul Razzaq. During this assault Muhammad Arif, P.W. was also injured. The two deceased were taken to the hospital where both died, Zamir Ahmad, S.I, on information, reached the Civil Hospital, Gujranwala and recorded the report Exh. P.A. at the instance of Muhammad Boota.

3. Dr. Harbans Lal P.W. 12 performed the post‑mortem examination on the dead body of Muhammad Din and found an incised wound 4 c.m. x 1/2 c.m. x skin deep on the back of left buttock and another incised wound 4 c. m. x 1.1/2 c. m. going deep on the left side of chest on lower part. In the opinion of the doctor, death was due to shock and bleeding due to injury No.2 which was sufficient to cause death in the ordinary course of nature.

4. Dr. Ishfaq Ahmad P.W.13 medically examined Muhammad Ibrahim at 8.45 p.m. on 27‑7‑1979 and found an incised wound 4 c.m. x 2.1/2 c.m. x going deep on the left side of the abdomen, and the omentum was out of the wound 9 c.m. left from umbulic, 6 c.m. above the left interior superior illiac spine. Muhammad Ibrahim injured, however, died the next day i.e. 28‑7‑1979 at about 6‑55 p.m.

5. The same doctor examined Muhammad Boots and found an incised wound 3 c.m. x 1/2 c.m. on the back of lower part of the left buttock and the injury was kept under observation.

6. Dr. Ishfaq Ahmad also examined Muhammad Arif and found incised wound 3 c.m. x 1 c.m. x 1 c.m. on the back of left hand, another incised wound 1 c.m. x c.m. x I c.m. x 1 c.m. on the back of left hand and a contusion 3 c.m. x 1 c.m. on the left lower eye‑lid. 7.Dr.Gulzar Ahmad P.W.15 performed the post‑mortem examination on the dead body of Muhammad Ibrahim on 29‑7‑1979 and found surgically stitched wound 23‑1/2 c.m. in length margin closed with the stitches at the left side of the abdomen, and an incised wound 4 c.m. x stitched x going deep at left side of the abdomen 9 c. m. left to the umblicus. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injury No.2

8. Learned counsel for the petitioners seeks leave inter alia, on the ground that there was no motive whatsoever alleged or brought on the record, by the prosecution for killing Muhammad Din or Muhammad Ibrahim; that it was a sudden flare up in which both the parties attacked each other and the accused/ petitioner, in the heat of moment, used daggers, causing not more than two incised injuries to Muhammad Din and one to Muhammad Ibrahim.

9. We have gone through the evidence and judgments of the Courts below and find that the question of sentence needs examination in the light of the evidence on record. We grant leave on the question of sentence only keeping in view the ages of the accused /petitioner. M.I/M.6/S. Leave granted.