' M.S.H. QURAISHI, J.-- This petition is barred by 5 days but in view of the pleas taken in the condonation application, the delay is condoned.
2. Petitioner Muzaffar Hussain and for others had been tried by the Additional Sessions Judge, Sheikhupura, for the murder of Mst. Barkat Bibi and for attempting the murder of her sons Abdur Rehman and Muhammad Nishan, in the result of which the co-accused were acquitted but the petitioner was convicted and sentenced under section 302, P.P.C. To death and a fine of Rs, 10,000 or in default in payment thereof to R.I. For for years, the fine if realized being payable as compensation to the heirs of the deceased; and under section 324, P.P.C. To R.I. For one year. On appeal, the High Court maintained the conviction under section 302, P.P.C. But reduced the death sentence to imprisonment for life while maintaining the sentence of fine as also the conviction and sentence under section 324, P.P.C. Both the sentences were made to run concurrently. The petitioner now seeks leave to appeal.
3. The parties are inter-related. The petitioner is the brother of Muhammad Aslam co-accused and both are nephews of co-accused Sadiq Hussain, Khadim Hussain and Arif Hussain who are sons of Siraj Din, a brother of Chiragh Din, the latter being the husband of the deceased and father of the injured witnesses. Chiragh Din, who had been Imam of Changrawali mosque for many years, had been, some for months prior to the occurrence, given shoe-beating by co-accused. Arif Hussain in revenge for which Abdur Rehman and Muhammad Nishan P.Ws. And their brother Muhammad Ramzan belaboured Siraj Din, father of Arif Hussain, with Dangs. This resulted in the registration of a case against them under section 325, P.P.C. And also proceedings under section 107/151, Cr.P.C. On 18th July, 1976, at about Maghrib prayer time, Abdur Rehman, Muhammad Nishan and their mother Mst. Barkat Bibi were returning from the house of Muhammad Ramzan when they were attacked by the accused persons. The petitioner had a dagger, Sadiq and Khadim Hussain co-accused a Chhuri each, Arif Hussain a hatchet and Muhammad Aslam a Sota. They shouted that they would teach a leason for the beating given to their father at which Mst. Barkat Bibi abused them and also asked them not to fight but to patch up. However, she was attacked by Sadiq Hussain, Khadim Hussain, the petitioner and Arif Hussain, who gave successive blows with their respective weapons.
Abdur Rehman and Muhammad Nishan who tried to intervene were given Chhuri blows by Khadim Hussain and Sadiq Hussain, respectively. Muhammad Aslam also gave a Sota blow at the back of Muhammad Nishan. At the hue and cry, Muhammad Ramzan also came to the spot, at which the assailants fled the scene.
4. The ocular version was furnished by Abdur Rehman and Muhammad Nishan P.Ws. Who fully supported the prosecution case. The post-mortem report showed the presence of as many as fourteen injuries on the person of the deceased, three of which were stab wounds and the remaining, except for one, incised ones. The stab wounds were found to be grievous and one of them i,e, injury No,1, was found alone to be sufficient to have caused the death. Abdur Rehman suffered two incised wounds and an abrasion while Muhammad Nishan one incised wound and one abrasion. Their injuries were, however, simple in nature, the abrasions having been caused by blunt weapon. There was also the recovery of a blood-stained Chhuri (Exh. P.6) at the instance of the petitioner. The petitioner's defence was only a plea of denial of the allegations including the recovery of the weapons.
5. The trial Court while considering the possibility, if any, of false implication of the accused persons in the case, came to the view that no Dang injury was proved, that the ocular witnesses had not furnished any satisfactory explanation for the blunt weapon injuries suffered by them, that they were interested and inimical witnesses and as such in the absence of independent corroboration, the conviction of the for co-accused could not be based on their testimony. The co-accused were accordingly given the benefit of doubt and acquitted. As for the petitioner, the trial Court believed the ocular evidence which it found corroborated by the evidence of recovery and accordingly convicted and sentenced him as aforesaid. The High Court did not consider the evidence of recovery worth reliance but accepting the ocular testimony and the medical evidence, upheld the petitioner's conviction. Considering, however, that it was the deceased who had first abused the accused which in High Court's view constituted an extenuating circumstance, it found him deserving only of the lesser penalty.
6. Learned counsel has urged that the reasons for which the trial Court acquitted the co-accused, were also applicable with equal force to the case of the petitioner; that if the witnesses were interested and inimical qua the co-accused, they would also be interested and inimical qua the petitioner who is related to the accused and that their testimony could not be considered sufficient particularly when the evidence of recovery was to be excluded, as the High Court has done. He also urged that there was no clear evidence that the fatal injury had been inflicted by the petitioner. He further pointed out that the petitioner had not figured in the previous disputes which had constituted the motive. Obviously the contentions raised merely relate to appreciation of the evidence. There is no reason to disbelieve the eye-witnesses who being injured their presence is not open to doubt. The concurrent finding of guilty against the petitioner is unexceptionable. The petition is therefore, dismissed though we direct that benefit under section 382-B, Cr.P.C. Shall be given to the petitioner.