1. NASIM HASAN SHAH, J.--The petitioners, Muhammad Dawood, Muhammad Younas. Ghulam Muhammad (armed with Sotas) and Muhammad Hussain armed with Gandhala), besides their co-accused brother, Ghulam Ali (who was murdered on 6-5-1984 and whose appeal before the High Court abated as such), were convicted for the murder of their co-villager, Muhammad Shafi and for causing injuries to the eye--witnesses, Abdul Ghani and Liaqat Ali and were inter alia sentenced to life imprisonment by the learned Additional Sessions Judge, Multan. Their appeal to the High Court having proved unavailing, they have moved this petition for leave (through Jail).
2. This petition is barred by 125 days but in view of the long sentence recorded against the petitioners, I am inclined to condone the delay and to dispose of the petition on merits.
3. The occurrence is stated to have taken place on 4-8-1975 after Isha prayer time in the area of Mauza Bottewala, Tehsil and District Multan, about 4 miles away from Police Station Makhdoom Rashid, where the F.I.R. (Exh. P.A.) was lodged by the injured eye-witness, Abdul Ghani (complainant).
4. The details of the occurrence as given in the F I R (Exh. P.A.) are that on the fateful day, Mst. Hanifan Bibi aged about 9/10 years, a maternal-niece of the complainant, Abdul Ghani, picked some Tinda vegetable from the field which had been cultivated by her father, Sher Muhammad, P.W. (not produced) under the tenancy of Muhammad Dawood and Younas (petitioners). In the meantime, Muhammad Dawood (petitioner) arrived there and objected to the conduct of the girl by saying that he was entitled to its half share and took the Tinda vegetable from her. This resulted in exchange of abuses between Mst. Hahifan Bibi and Muhammad Dawood (petitioner). She came back home and reported the matter to her father, Sher Muhammad and maternal-uhcle, Abdul Ghani (complainant). At this, Abdul Ghani alongwith his brother, Liaqat Ali (P.W.) and Sher Muhammad, father of Mst. Hanifan, weht to Chah Ghulewala to lodge a protest with Muhammad Dawood. There they found Muhammad Dawood, Ghulam Muhammad and Muhammad Hu4sain (petitioners) present. When they protested to them it resulted in exchange of abuses whereupon Abdul Ghani, Liaqat Ali and Sher Muhammad (complainant party) picked up some sticks lying there and inflicted injuries to Muhammad Dawood, Ghulam Ali, Ghulam Muhammad and Muhammad Hussain. They were separated by Hakam Ali (P.W. 11) and Sher Muhammad, son of Abdullah. The complainant party returned to their Chah. At Isha prayer time, Muhammad Shaft (deceased), an uncle of Abdul Ghani (complainant) came to their home and was informed of the occurrence. He went to Muhammad Dawood etc., after Isha prayers to complain about the insult given to Mst. Hanifan Bibi. Abdul Ghani, Liaqat Ali and Sher Muhammad also followed him.
5. Muhammad Shafi (deceased) called out the petitioners while standing in the street in front of the house of Dawood. All the five convicted accused emerged from the Ihata of Dawood. Muhammad Hussain was armed with a Gandhala while the remaining four were armed with Sotas. Ghulam Muhammad and Muhammad Younas caught hold of Muhammad Shafi (deceased) and Muhammad Hussain gave a Gandhala blow on his head and as a result of which he fell down. The remaining four convicted accused also gave him Sotas blows while he was falling. Then they tried to intervene to rescue Muhammad Shafi (deceased), Ghulam Muhammad caused injuries to Abdul Ghani (complainant) while Liaqat Ali (P.W.) was injured by Dawood and Younas. The alarm attracted Muhammad Ashiq (P.W. 9) and Ismail (given up P.W.). They tried to intervene but as the convicted accused were armed, none of them went near. The convicted accused thereafter lifted Muhammad Shafi from the street and took him inside the Haveli of Muhammad Dawood where he succumbed to the injuries.
6. In my opinion the case requires further examination. The petitioners are all-brothers and the whole family stands incarcerated while their brother, Ghulam Ali, was also murdered during the pendency of the appeal in the High Court. The motive appears to have been with the complainant party who were incensed at treatment accorded to the young girl (Mst. Hanifan) and its members went twice to the house of the accused to protest and on the first occasion also inflicted Soti blows to the accused. The defence plea that they were the aggressors does not appear to have been given the attention that it deserved. In my opinion a just balance has not been maintained and the petitioners have not received proper justice. I would, therefore, grant leave to appeal to the petitioners.
7. MUHAMMAD AFZAL ZULLAH, J--I agree.
8. ORDER OF THE COURT Leave to appeal is granted after condoning the delay.