MIAN BURHANUDDIN KHAN, J.-This Jail petition filed by Akbar alias Akku is directed against the judgment of the Lahore High Court dated 29-3-1982 in Criminal Appeal No. A/786 of 1979 whereby appeal of the petitioner was dismissed and the death sentence awarded to him by the learned Additional Sessions Judge, Gujranwala was confirmed, and appeal of his co-accused Saifullah, was also rejected and he was sentenced to 10 years' R. I. And a fine of Rs. 2,000, under section 457, P. P. C.
2. According to the prosecution case Akbar alias Akku and his real brother Saifullah were found by Muhammad Aslam, P. W. 7 loitering in the vicinity of their kiln, Akbar was on the roof of the house of one Karamat A.I while Saifullah was just standing in the door of Karamat's house. They were challenged by the deceased Abdul Latif who caught hold of Saifullah and raised an alarm calling `thief! Thief!'. On this, Akbar, petitioner jumped down from the roof of Karamat's house in order to rescue Saifullah from the deceased. As the deceased was holding Saifullah firmly and was not releasing him, Akbar, who had a revolver with him, fired a shot which hit Suleman, P. W. 8 on his leg.
Thereafter, Akbar, in order to get Saifullah released from the clutches of Abdul Latif deceased who was still holding Saifullah in his grips, placed his revolver on the chest of the deceased and fired two successive shots, which hit Abdul Latif and he, therefore, fell and died at the spot. Bundu Khan P. W. 9 also reached the spot and witnessed the occurrence. Saifullah was apprehended by the witnesses while Akbar, appellant, escaped, leaving Saifullah, Bundu and Jamil, and the deceased.
3. Muhammad Aslam proceeded to the Police Station, Sukheki where he lodged the F. I. R. Exh. P. K.
Which was recorded by Muhammad Zaman, S. 1. P. W.
12. Thereafter the S. I. M. Zaman accompanied the complainant to the spot and found the body of the deceased lying there. He prepared the inquest report and sent the dead body to the mortuary. Bundu Khan produced Saifullah who was arrested by the Investigating Officer, who also recovered a dang P. 9 and took the same into possession. Saifullah was sent to the Hospital and was examined. He had some injuries on his person. Suleman was admitted in an injured condition in the Hospital at Hafizabad and his injury report was prepared. Akbar, appellant, absconded and he was proceeded against under sections 87 and 88, Cr. P. C.
4. Dr. Muhammad Sadiq found an oval 1/2' x 1/4' wound with inverted margins which were tattooed and scorched, on the front part of left region of chest 2' below left nipple and another oval 1/2` x 1/4' wound with inverted edges on the front right part of chest just below the junctions of outer 1/4 and inner 3/4 right collar bone, and both injuries being wounds of entry on the body of Abdul Latif deceased. The same doctor examined Muhammad Suleman and Saifullah.
5. At the trial the prosecution examined Muhammad Aslam P. W. 7, Suleman, P. W. 8 and Bundu Khan, P. W. 9 as eye-witnesses of the crime. Suleman had sustained a bullet injury in the same transaction in which Abdul Latif was shot dead. M. Aslam P. W. 7 is brother of Suleman P. W. 8 and son of the deceased. He had accompanied the deceased to rice barn (kiln or bhatti) on the fateful night at about 1 a.m. When they encountered the two accused. Akbar was on the top of the roof of Karamat's house while Saifullah was standing near the door of Karamat's house, armed with a sota.
The deceased caught hold of Saifullah and raised alarm. Then Akbar, appellant came down and fired a shot which hit him (Suleman) at his leg. Akbar, accused, then triedto get Saifullah released from the clutches of Abdul Latif deceased and in order to make the deceased leave and free Saifullah, he fired two shots which hit the deceased.
6. Suleman, P. W. 8 is also son of the deceased and was present at the time of occurrence. He also gave similar account of the occurrence. His presence cannot be disputed as he had a gunshot injury and his injury is proved by the doctor to have been caused by a bullet. Bundu Khan, P. W. 9 is a disinterested witness and he also supported the prosecution case.
7. Learned counsel stated that the prosecution story is doubtful as the occurrence took place at the dead of night and identity of the culprit cannot be established from the evidence on record ; that Saifullah was arrested without any reason and was beaten by the complainant and he, therefore, sustained as many as 12 injuries caused by blunt weapon.
8. We do not agree with the contentions of the learned counsel. The prosecution case is established beyond any reasonable doubt. The crime was committed in a very cruel manner. The deceased had the right to challenge the intruders out of whom one, namely Akbar, was on the roof of Karamat's house, had committed the lurking house-trespass by night and the other, namely, Saifullah, was also armed with a danda and was standing in front of the door of the house of Karamat. Thus the petition is without any merit, and is, accordingly, dismissed.