1989 PLP 1808 (SCMR)

SAAD SAOOD JAN, J.‑‑Seven persons, namely, Hayat, Majha, Isa, Musa, respondents, and Abbas, Dost Muhammad and Anwar were tried by the Additional Sessions Judge at Vehari on charges under sections 302 and 307, read with sections 149 and 148, Pakistan Penal Code, for causing the death of Umar Hayat, making a murderous assault at Muhammad Nawaz and rioting. The learned Additional Sessions Judge acquitted Abbas, Dost Muhammad and Anwar but convicted the respondents of offences under section 302, read with sections 34 and 325 of the Pakistan Penal Code. For the offence under section 302, he sentenced them to suffer death and pay fines. For the offence under section 325 he sentenced them to a term of imprisonment as well as fine. On appeal and reference the High Court maintained the convictions of the respondents but reduced their sentences under section 302 to imprisonment for life. Isa, Musa and Majha have preferred through jail a joint petition and Hayat a separate petition mst their convictions and sentences. The complainant party has also filed a petition for special leave to appeal against reduction of their sentences as ordered by the High Court.

2. The occurrence took place on 9‑4‑1983 at midnight and was reported at Police Station Vehari at 3‑30 a.m. on 10‑4‑1983 by Ilyas, father of the deceased. It was stated to be a sequel to the murder of one Mushlaq which had taken place 3 years earlier. For that murder, a nephew of Ilyas was put on trial but was acquitted.

3. It wits alleged by the prosecution that at the relevant time the deceased and his cousin Muhammad Nawaz were present in their fields taking their turn of water. Suddenly, Abbas and Hayat who were the brothers of Mushtaq, together with Majha, Musa, 1sa, Dost Muhammad and Anwar came there with Kassi, Toka, hatchets, spear and gun. They attacked the deceased and Muhammad Nawaz. The noise created by tile occurrence attracted Ilyas to the spot from his `dhari' which was one bigha away. Umar Hayat died on the spot while Muhammad Naw;ir wits badly injured.

4. The post‑mortem examination of Umar Hayat revealed that he had 18 incised wounds on his body. The medical examination of Muhammad Nawaz showed that he had suffered 20 injuries of which 11 had been inflicted by sharp edged weapons.

5. The accused pleaded not guilty at the trial and alleged that they had been falsely implicated. They did not lead any evidence in their defence.

6. To support its case against the accused, the prosecution produced two eye‑witnesses, namely, Ilyas and Muhammad Nawaz. It also relied upon the recovery of blood‑stained weapons at the instance of Abbas and Hayat. The trial Court rejected the recovery evidence but relied upon the ocular testimony. The high Court also found the ocular testimony credible enough to support the conviction of the respondents.

7. After perusing the record we find the presence of Hayat at the scene of Occurrence needs further examination. Had he been present there he would not have been spared by the assailants for the motives which prompted the assailants to attack Umar Hayat and Muhammad Nawaz also extended to him. Apart from that, the trial Court did not find the ocular testimony reliable in respect of Abbas, Dost Muhammad and Anwar. It was thus, not a case where implicit reliance could be placed on the ocular testimony. We should therefore give leave to appeal in both the jail petitions.

8. The reason given by the learned Judges of the High Court for not confirming the sentence of death imposed by the trial Court is that it could not be ascertained as to which of the assailants was responsible for causing the fatal injuries to the deceased. Now if the prosecution story is true, the deceased was killed in furtherance of common intention of all the assailants. The deceased A suffered as many as 18 injuries with sharp‑edged weapons. In the circumstances, it would appear to be immaterial which of the assailants caused the fatal injury. Leave to appeal is granted to the complainant party as well to consider the question of sentence. All the three appeals should be heard together. A.A./1‑89/S Leave granted.