1987 PLP 1814 (SCMR)

JAVID IQBAL, J.‑‑This petition of leave to appeal has been filed by the State against the judgment of the Lahore High Court Lahore dated 21 January 1981 whereby respondents Draz and Talib were acquitted and the conviction of respondent Faiz was altered from one under section 302 PPC to that under section 304 Part I PPC reducing his sentence from death to that of three years' RI on each count with no fine and the direction that the sentences shall run concurrently. Briefly the facts are that respondents Draz, Talib and Faiz along with Sultan co‑accused were tried under sections 302/34 PPC for the murders of Abdullah aged 55 and Mst. Iqbal Bibi aged 20, and vide judgment of the trial Court dated 23rd August 1978 Draz, Talib and Faiz respondents were sentenced to death plus fine whereas Sultan co‑accused was acquitted. In appeal before the Lahore High Court Lahore a Division Bench vide judgment dated 21st January 1981 acquitted Draz and Talib respondents whereas the conviction and sentence of Faiz respondent was altered as stated above. The occurrence took place at 2 p.m. on 15th November, 1976. Abdullah deceased was murdered in the field of the village whereas Mst. Iqbal Bibi deceased was murdered in her house in village Abadi, Sipranwali. Police Station Atharahazari. The F.I.R. was lodged by Mst. Aisha Bibi PW wife of Abdullah deceased on the same day about two hours after the occurrence. All the members of the accused party were arrested on the next day. No recovery was effected from Sultan co‑accused but from the present three respondents were recovered human blood‑stained hatchets and taken into possession by the police. There are three eye‑witnesses of the occurrence, namely, Mst. Aisha Bibi PW wife of Abdullah deceased, Ahmad Bakhsh PW and Mohammad Nawaz PW. The motive advanced by the prosecution is that the accused party and the complainant side owned some land jointly as they were related inter se and Abdullah deceased had wanted a regular partition of the said land. The prosecution case is that on several occasions there had been quarrels between Abdullah deceased and the accused party as they did not agree to the same. It is also stated that before the present occurrence the accused party had threatened Abdullah deceased with dire consequences if he insisted on getting the land partitioned regularly. The prosecution case is that on the fateful day Abdullah deceased was cutting fodder in a field near the village and his wife Mst. Aisha Bibi P.W. was helping him. Ahmad Bakhsh PW and another Ahmad Bakhsh (not produced) were also present there. The respondents and the acquitted co‑accused Sultan all came to the spot. The present respondents were armed with hatchets whereas the acquitted co‑accused Sultan was empty handed. They raised a Lalkara to the effect that Abdullah deceased should not be spared and that he should be taught a lesson for demanding regular partition of the land. Thereafter Draz and Talib respondents gave hatchet blows on the neck of the deceased who fell down. Then Faiz respondent gave hatchet blows to the deceased while Sultan co‑accused continued raising Lalkara. Abdullah deceased died on the spot as a result of the injuries sustained by him. After murdering Abdullah deceased the respondents and the acquitted co‑accused went towards the Basti and they murdered Mst. Iqbal Bibi deceased in her house who was niece of Faiz respondent, in order to create a plea that they murdered both the deceased persons under grave and sudden provocation as they had found them in a compromising position. The second occurrence was witnessed by Mohammad Nawaz PW who saw the respondents murdering Mst. Iqbal Bibi deceased. According to the medical evidence there were ten injuries on the person of Abdullah deceased out of which two injuries were in the form of lacerated wound and abrasion caused by blunt weapon whereas the rest of them had been caused by sharp‑edged weapon as they were all incised wounds. The stomach of Abdullah deceased contained about 4 ounces of food material and his bladder contained 12 ounces of urine. He was 55 years old. Mst. Iqbal Bibi deceased was aged about 20 years and had seven injuries on her person out of which six were caused by sharp‑edged weapon as they were incised injuries whereas one was caused with a blunt weapon in the form of bruise on the abdomen. The stomach of Mst. Iqbal Bibi deceased contained four ounces of food material. She was mensurating at the time of her death and had worn mensurating cloths. Learned counsel for the petitioner argued that the plea taken up by the defence to the effect that both the deceased persons were found in a compromising position and therefore, they were done to death was not supported by the medical evidence. According to the ocular testimony both the murders took place on separate spots and blood‑stained earth was picked up from two different spots. It was also submitted that the occurrence had taken place at 2 p.m. in the afternoon. Consequently there was no justification on the part of the learned Judges of the Division Bench of the Lahore High Court Lahore in accepting the defence version and completely ignoring the prosecution version which was not only supported by the medical evidence and motive, but also by the fact that the ocular testimony was corroborated by the recovery evidence. It was submitted that a perusal of the medical evidence showed clearly that the defence version was improbable and unbelievable, and was advanced only to save the skin of the respondents by making out a false case to bolster the plea of grave and sudden provocation. Leave is therefore granted to examine as to whether or not the evidence in the instant case has been appraised in accordance with the well‑established principles of safe administration of criminal justice. Non‑bailable warrants to issue against respondents Draz, Talib and Faiz. K.B.A./S‑58/S Leave granted.