1987 PLP 636 (SCMR)

Malik Muhammad Jafar, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Crl. Petition No. 57‑R of 1985) . M. Nawaz Abbasi A.A.‑G Punjab and Rao. M. Yousaf, Advocate -on‑Record for Respondent (in Criminal Petition No.57‑R of 1985. Malik Rab Nawaz Noon, Advocate Supreme Court and Ch. Akhtar Ali Advocate‑on‑Record (absent) for Petitioner (in Criminal Petition No. 85‑R of 1985) . M.Nawaz Abbasi A.A.‑G. Punjab and Rao M. Yousaf, Advocate- on Record for the State (in Criminal Petition No.85‑R of 1985). Malik Muhammad Jaffar, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No.2, (in Criminal Petition No.85‑R of 1985) . Sardar M.Ishaq, Advocate Supreme Court for Respondent No.3. (in Criminal Petition No.85‑R of 1985) Date of hearing: 21st January 1987. ALI HUSSAIN QAZILBASH, J.‑‑Buland Khan petitioner seeks leave to appeal from the order and judgment of the Lahore High Court, Rawalpindi Bench, dated 4‑5‑1985, whereby his conviction under section 302, P.P.C. was maintained but the sentence altered from death to imprisonment for life. His sentence of fine was, however, maintained. Through the same judgment the conviction and sentence of Samundar Khan and Taj Khan under section 302/34, P.P.C. was set aside but their conviction and sentence under sections 323 and 324, P.P.C. was maintained. Mst. Mubarak Jan complainant has sought leave from the above judgment of the High Court. This order will dispose of both the petitions.

2. Buland Khan and his brother Sumandar Khan Taj Khan, Nawab Khan, Sarfraz Khan, Aslam Khan, Muzaffar Khan, Muhammad Khan and Samundar Khan son of Bahadur Khan were tried by the learned Sessions Judge, Attock, on the charge of committing the murder of Sarfraz Khan, their co‑villager, and attempt at the life of Mumraiz Khan Amir Khan and Amanat Khan P.Ws in prosecution of their common object after forming themselves into an unlawful assembly under sections 302% 307/149 and 148, P.P.C. The occurrence is alleged to have taken place on 12‑8‑1980 at Rotiwela in the area of village Bajal. After the trial the learned Sessions Judge, Attock, vide his judgment dated 26‑9‑1981, while acquitting Nawab Khan, Sarfraz Khan, Muzaffar Khan, Aslam Khan and Samundar Khan son of Bahadur Khan, convicted Buland Khan and his brother Sumandar Khan and Taj Khan under section 302/34, P. P. C . In doing so he sentenced Buland Khan petitioner to death and a fine of Rs.5,000 or in default to undergo one year's R.I. His brother Sumandar Khan and Taj Khan were, however, sentenced to imprisonment for life and also a fine of Rs.5,000 or in default to undergo one year's R.I. further. Sumandar Khan was also convicted under section 324, P.P.C. and sentenced to one year's R.I. while Taj Khan was convicted under section 323, P.P.C. and sentenced to six months' R.I. The benefit of remission of sentence under section 382‑B, Cr. P. C . was given to Sumandar Khan and Taj Khan. Buland Khan and his brother Sumandar Khan and Taj Khan filed two separate appeals in the High Court against their conviction and sentence. The appeals and the murder reference were taken up together by a learned Division Bench of the Lahore High Court who after hearing the same maintained the conviction of Buland Khan under section 302, P.P.C. but altered his sentence from death to imprisonment for life. The sentence of fine was, however, maintained. Through the same judgment dated 4‑5‑1985 the conviction and sentence of Sumandar Khan and Taj Khan under section 302/34, P. P. C. was set aside but their conviction and sentence under sections 323 and 324, P.P.C. were maintained.

3. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. The learned counsel for Buland Khan petitioner took us through the F.I.R., the post‑mortem examination report of the doctor in respect of Sarfraz Khan and the statements of Amir Khan P.W.10 and Fazal Khan P.W.11 who have given eye‑version account of the incident, and submitted that the case against Buland Khan petitioner is not at all free from doubt in that in the F. I. R. which was lodged by Mumraiz Khan it was alleged that both Buland Khan and Sarfraz Khan had given two axe blows which landed on the same portion of the head of his son Sarfraz Khan deceased. This allegation is, however, belied by the post‑mortem report which shows one cut wound on the top of back of head of a dimension of 12 x 5 x 6 c. m. At the trial Amir Khan P. W.10 deposed that opening the attack Buland Khan gave hatchet blow to Sarfraz Khan deceased hitting him on the head. He was followed by Nawab Khan who gave a hatchet blow on his left shoulder. Similarly, another eye‑witness, namely, Fazal Khan, deposed at the trial that Buland, Khan accused raised a Lalkara that he would teach them a lesson for driving out his cattle and uttering these words he gave hatchet blow) on the head of Sarfraz Khan followed by Nawab Khan who gave hatchet blow on his shoulder. Both these witnesses in the cross‑examination admitted that they did not state to the police that the hatchet blow of Nawab Khan accused also landed on the head of Sarfraz Khan deceased. Nawab Khan stands acquitted in this case, therefore, in view of this material contradiction in the prosecution case, we are of the view that the submission made by the learned counsel for Buland Khan has force and needs consideration. We. therefore, grant leave in this case for the re‑appraisal of evidence.

4. Since leave to appeal has been given in the case of Buland Khan, therefore, leave is also granted in Criminal Petition No.85‑R of 1985. Its notice be sent to Buland Khan and bailable warrants in the sum of Rs.20,000 (Rupees twenty thousand only) with two sureties in the like sum each, be issued against Sumandar Khan and Taj Khan residents of village Bajal, Tehsil Fateh Jhang, District Attock, to the satisfaction of the Assistant Commissioner/Ilaqa Magistrate concerned. M.I./B‑1/S Leave granted.