1986 PLP 754 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought in these two petitions from judgment, dated 1‑11‑1981 of the Lahore High Court; whereby while partly allowing criminal appeal of Riaz Ahmad (respondent in Criminal Petition against acquittal No.473/1981), he was acquitted of charge of murder and was convicted only under section 323, P.P.C. with the sentence of imprisonment undergone. Conviction and sentences including one of death awarded to Abdul Rashid co‑convict of Riaz (the petitioner in Criminal Petition No. 445 of 1981) for the murder of Muhammad Hanif deceased was, however, maintained.

2. The prosecution case as contained in the deposition of Bashir Ahmad P. W. who is also the complainant as well as an eye‑witness is as follows:‑ "Muhammad Hanif deceased was my real brother. The accused persons have installed a tube‑well in their land. Various land owners of our village including myself take water from their tube‑well on payment and I owed them a sum of Rs.365. About one year and some days ago, on the day of occurrence i.e. 25‑12‑1977 at about sunset time, I was sitting at my cattle shed alongwith my brother, Muhammad Hanif deceased, Haq Nawaz, Ashiq Hussain and Fida Hussain P. Ws. The accused persons came there. Riaz accused was armed with a stick and demanded the aforesaid amount. I paid them a sum of Rs.250 and requested them to extend time for the payment of the balance money. The accused persons refused to extend time and insisted for the payment of the balance amount there and then. Two goats were tethered in our barn. The accused persons untied them and left for their house alongwith the said goats. We tried to dissuade the accused persons from taking our goats but in vain. The accused persons had hardly covered a distance of about 20/22 Karams when my brother Muhammad Hanif deceased stopped them and caught hold of one of the goats from its ear. Abdul Rashid accused abused the deceased who paid him in the same coin whereupon Abdul Rashid accused took out a knife and gave three knife blows to my brother Muhammad Hanif deceased. His co‑accused Riaz gave stick blows to the deceased which felled him on the ground. We raised alarm and ran towards my deceased brother. On seeing us approaching, leaving the behind, the accused persons decamped taking their respective weapons with them."

3. The prosecution, in addition to the eye‑witness account given by the complainant and Ashiq Hussain and Fida Hussaih P.Ws. relied on blood‑stained knife recovered from Abdul Rashid petitioner and a dying declaration made by Muhammad Hanif deceased. The plea of the accused was of denial and false implication. Abdul Rashid also pleaded alibi and produced defence evidence.

4. The learned trial Court found both the accused guilty of murder. Abdul Rashid was awarded death sentence and a fine of Rs.2,500 while Riaz Ahmad was awarded life imprisonment under section 302 read with section 34, P.P.C.

5. On appeal, the High Court affirmed the conviction and sentences of. Abdul Rashid while qua Riaz Ahmad it was held that section 34, P.P.C. was not attracted to his case. His conviction and sentence was, therefore, altered to one under section 323, P.P.C. Both Abdul Rashid and the complainant have moved petitions for leave to appeal. One, against conviction and the other against acquittal of Riaz Ahmad of the charges of murder.

6. After hearing both the learned counsel, we consider it a fit case to examine the legality of the High Court judgment as also to see whether accepted principles of administration of criminal justice have been followed in this case. Leave to appeal is accordingly granted in both the petitions.

7. Bailable warrants of arrest of Riaz Ahmad respondent in the sum of Rs.20,000r with two sureties in the like amount to the satisfaction and of returnable to A.C. Shujaabad, shall be issued. M. I. Leave to appeal granted.