1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought in these two petitions from judgment, dated 24-11-1985 of the Lahore High Court; whereby in a case of murder the sentence of death awarded to Amir Khan petitioner in Criminal Petition No. 471 of 1985 was confirmed while Sardar Khan, Rab Nawaz and Faiz Ullah his co-accused were acquitted of the charge of murder, but on charge of attempt to commit murder they were let off with the sentence that they had undergone.
2. Learned counsel for the petitioner in the said petition has not pressed the case of Sardar Khan, Rab Nawaz and Faiz Ullah. He has, however, pressed the petition for Amir Khan. On the other hand, the complainant side has moved Criminal Petition No. 477 of 1985 against Sardar Khan, Rab Nawaz and Faiz Ullah so as to bring under challenge their acquittal on charge of murder.
3. The motive in this case in which Sher Samand lost his life and two persons on the prosecution side also suffered simple injuries was that two years prior to the occurrence Sardar Khan accused got a case registered under section 307, P.P.C. Against Mehr. Khan complainant who was convicted and sentenced by the trial Court. He was on bail from the appellate Court during the days of occurrence. This led to an attack on Mehr Khan's party which resulted in the death of Sher Samand and injuries to Mehr Khan and Amir Khan.
4. According to the prosecution the facts of the case are that on the day of occurrence at about 3 p.m. Mehr Khan complainant alongwith Amir Khan and Sher Samand went out of his Baithak and was proceeding towards the Dera Atim Khelwala. As he had gone about 20 Karams from the Baithak when Sardar Khan accused armed with a rifle, Rab Nawaz, Amir Khan and Faiz Ullah armed with guns came out from nearby ditches. Sardar Khan raised a Lalkara and fired a shot from his rifle hitting Mehar Khan on the upper arm. Rab Nawaz fired his gun which hit him on the head as a result of which he fell down. On hearing fire shot Umar Khan P.W. And Sher Samand, Mst. Ghulam Fatima wife of Sher Samand, Nur Khan and Aslam Khan P.Ws. Came there. Amir Khan fired a shot from his gun which hit Sher Samand on the face and he fell down. When Umar Khan ran back, Faiz Ullah fired a shot which hit him on his buttocks. The accused ran away raising Lalkaras and firing in the air.
5. The learned trial Court, as noted earlier, convicted all the accused for the murder of Sher Samand and murderous assault on the witnesses under sections 302 and 307, P.P.C. But the High Court acquitted all except Amir Khan of the charge of murder.
6. Learned counsel for Amir Khan petitioner has contended that the prosecution witnesses have suppressed a very important material circumstance which if disclosed would have re-acted on the entire case. It is that one Sher Bahadur and Sultan from the party of the accused were also injured in the same occurrence but in the F.I.R. They were not mentioned as so injured. Sultan had eight fire-arm injuries while Sher Bahadur had also one gun-shot injury. The Investigating Officer, admitted that in a cross-case for injuries to these two persons the recoveries were made and concerned persons were arrested but during. The trial the persons concerned in that case were acquitted. Learned counsel further stated that the learned Judges of the High Court have not attached much importance to this circumstance on the assumption that the injuries on these two persons were insignificant and might have been self-suffered. Learned counsel analysed the injuries and tried to show that by no stretch of the reasoning these injuries would have been self- suffered.
7. This question, inter alia, requires examination. We accordingly grant leave to appeal in Criminal Petition No. 471 of 1985.
8. As the entire evidence will have to be re-appraised and the question of culpability for murder of the accused other than Amir Khan C might also arise, we. Therefore, grant leave to appeal in the other petition (Criminal Petition No. 477 of 1985) with the result that leave to appeal is granted in both these petitions.
9. Bail able warrants in the sum of Rs.20,000 with two sureties each returnable to theAssistant Commissioner concerned shall be issued for the appearance of Sardar Khan, Rab Nawaz, and Faiz Ullah respondents in Criminal Petition No. 477 of 1985.