ASLAM RIAZ HUSSAIN, J.--This order will dispose of:
(i) Criminal Petition for Special Leave to Appeal No. 98 of 1986 filed by Aijaz alias Jajji against his conviction and sentence; and
(ii) Criminal Petition No. 125 of 1986 filed by Muhammad Rafiq complainant, father of the deceased, against the acquittal of Khurshid Alam and for enhancement of the sentence of Muhammad Zafar Alam and Safdar Ali.
2. Facts, briefly, are that Aijaz petitioner in Criminal Petition No. 98 of 1986, was tried alongwith his brothers Muhammad Zafar Alam and Khurshid Alam (respondents in Criminal Petition No. 125 of 1986), for the murder of Muhammad Yousaf, at 5 p.m. On 16-1-1983 in Peoples Colony, Faisalabad.
It may be stated that Ejaz, Muhammad Zafar Alam and Khurshid Alam are real brothers inter se while Safdar Ali co-accused is their friend.
2-A. According to the prosecution, motive for the offence was that Bashir Ahmad (P.W. 11) had got a case of theft registered against Aijaz (petitioner in Criminal Petition No. 98 of 1986) 3 days prior to the present occurrence. Aijaz and his co-accused approached Bashir Ahmad at the canteen situated near the Gate of the Sessions Court, Faisalabad. At that time Muhammad Yousaf (deceased) and Mumtaz Hassan P.W. Were also present, Aijaz etc. (accused) asked Bashir Ahmad not to depose against him and threatened him with dire consequences. Muhammad Yousaf (deceased) and Mumtaz Hassan P.W. Sided with Bashir Ahmad P.W. And condemned the behaviour of the accused who left the place saying that they would take revenge from him.
On the day of occurrence (16-1-1983), an altercation took place between Muhammad Yousaf, Mumtaz Hassan on the one hand and the accused party on the other. Khurshid Alam accused held the deceased in Japha while Aijaz gave Chhuri blow in his flank, Safdar Ali gave a head push to him while Muhammad Zafar Alam inflicted Chhuri blow on the right thigh of Mumtaz Hassan. On the hue and cry raised during the incident many peoples collected there whereupon the assailants fled away. The matter was reported to the police. During the investigation Chhuri (P. 5) which was found to be stained with human blood, was recovered from Aijaz (petitioner in Criminal Petition 98 of 1986).
3. At the trial the prosecution relied on the ocular testimony of Ejaz Hussain (P.W. 12), Mumtaz Hassan (P.W. 13) and Zafar Izhar, the employer of the deceased. It also relied on- the recovery of Chhuri from Aijaz and the injuries found on the deceased and other injured witnesses.
Aijaz denied his guilt and Stated that Mumtaz Hassan P.W. Who was armed with a Chhuri assaulted him but he hurled the chair on the face of Mumtaz and due to that blow the Chhuri fell down from his hand, which was picked up by him (Aijaz). Apprehending danger at the hands of Mumtaz P.W.
And the deceased, he gave one Chhuri blow to each of them in self-defence.
4. The trial Court accepted the prosecution version, convicted and sentenced all the four accused persons as follows:- "Sentence of death to Aijaz and Khurshid Alam and a fine of Rs.5,000 each or 2 years' R.I. Each.
Imprisonment for life to Muhammad Zafar Alam and Safdar and a fine of Rs.5,000 or 2 years' R.I.
Each.
2 years' R.I. And a fine of Rs.2,000 each under section 325/34, P.P.C. And a fine of Rs. 2,000 each. Half of the fine to be paid to the heirs of the deceased."
5. On appeal the High Court confirmed the death of Aijaz and acquitted Safdar Ali (co-accused).
As far as Muhammad Zafar Alam and Safdar Ali it was held that they did not share the common intention with Aijaz accused. Consequently their conviction under section 302/34, P.P.C. Was set aside and they were convicted under sections 324/34, P.P.C. And 323/34, P.P.C., respectively and were sentenced to imprisonment already undergone by them. The fourth accused namely Khurshid Alam was empty-handed and he is said to have caused injury to none. He was, therefore, acquitted.
Hence the two petitions, one filed by Aijaz alias Jajji and the other by Muhammad Rafiq father of the deceased against the acquittal of Khurshid Alam and for the enhancement of the sentences of Muhammad Zafar Alam and Safdar Ali, of the charge under section 302/34, P.P.C.
6. We have gone through the impugned judgment and heard the learned counsel for the parties at some length. We are of the view that Khurshid Alam and Muhammad Zafar Alam were rightly acquitted by the High Court. It was held by the High Court that there was no pre-planned attack on the deceased and they were rightly acquitted of the charge under section 302/34, P.P.C. And their conviction was justifiably converted to under sections 323/34 and 324/34, P.P.C. For the acts done by them. As such Criminal Petition No. 125 of 1986 seeking reversal of their acquittal is dismissed.
7. As for Criminal Petition 98 of 1986 filed by Aijaz against his conviction we are of the view that since he had caused the fatal blows to Muhammad Yousaf deceased on trivial matter he was rightly convicted under section 302, P.P.C.
8. His learned counsel; however, urged further that in view of the; findings of the High Court that there was no pre-concerted attack ink this case to the effect that he has caused simple injuries to the deceased Ice, he is, therefore, entitled to lesser sentence of imprisonment for life In this connection it may be useful to reproduce the description of the injuries on the person of the deceased which reads as follows:-
(1) A stitched stab wound with sharply cut edged 3 c.m. x 3/4 c.m. Depth not probed on back and lateral and middle part of left side.
(2) A stitched left side abdominal operation wound 1 c.m. In length of left side of abdomen and middle.
(3) A wound 3 c.m. With drainage tube on outer and middle of front of abdomen.
(4)A wound 1 c.m. x 1/2 c.m. On upper and lateral part of left chest.
The walls and ribs etc. Of chest of left side were injured at the stab sites, on back side, left pleuras was injured. Left lung was injured. Peritoneum and stomach were also injured. Death was due to shock and haemorrhage as a result of injury to chest on the left back, left lung, disphrag and stomach.
The question would be whether in the circumstances of this case the petitioner deserves to be awarded the lesser sentence for the murder of Muhammad Yousaf.
After discussing the matter we feel that leave may be granted only to consider the question of sentence. Ordered accordingly.