SAAD SAOOD JAN, J.-- Ashiq Hussain and Talib Hussain, petitioners in this petition for special leave to appeal were convicted by the Additional Sessions Judge, Gujrat of offences falling under sections 302 and 307, read with section 34 of the Pakistan Penal Code for causing the death of Muhammad Khan and Muhammad Ashraf and making murderous assault upon Rehmat Khan. For the offences under section 302, Ashiq Hussain was sentenced to death while Talib Hussain was sentenced to suffer imprisonment for life, on two counts separately. For the offence under section 307, Ashiq Hussain was sentenced to suffer rigorous imprisonment for a period of four years. For the same offence Talib Hussain was sentenced to suffer rigorous imprisonment for a period of seven years. In addition, both petitioners were also asked to pay fines. On appeal and reference the High Court maintained the convictions and sentences of the petitioners and confirmed the sentences of death awarded to Ashiq Hussain. It may be mentioned that together with the petitioners one Rashid Ahmad was also tried on the same charges but he was acquitted by the learned Additional Sessions Judge. The petitioners seek leave to appeal from their convictions and sentences.
2, The occurrence took place on 24-8-1979 at 7-15 p. m. In the month of Ramazan. According to the prosecution, shortly before the occurrence there was a verbal quarrel between the petitioners and Muhammad Ashraf deceased as the latter chided Ashiq Hussain for hovering around a culvert and teasing women who used that culvert for going to the fields to ease themselves. It was alleged that as Muhammad Ashraf deceased passed by the house of Muhammad Sharif Malhi C.W., Ashiq Hussain struck him with a knife. As Rehmat Khan, a companion of Muhammad Ashraf deceased, attempted to rescue him, Talib Hussain gave him a knife blow. Muhammad Khan deceased, a foot constable serving in Baluchistan, and Muhammad Aslam also arrived at the spot. When they tried to intervene, Ashiq Hussain gave a knife blow to Muhammad Khan deceased, who died at the spot.
Muhammad Ashraf died a few days later. The occurrence was reported by Muhammad Aslam on the same evening (9-30 p.m.) at Police Station Miana Gondal.
3. The petitioners pleaded not guilty to the charges against them. Ashiq Hussain admitted that he had caused the death of Muhammad Ashraf and Muhammad Khan. Deceased and injured Rehmat Khan. He stated that Muhammad Ashraf and Muhammad Khan used to sit on the culvert in objectionable clothings and tease the women-folks. When he asked them to desist from doing so, Muhammad Khan attacked him with a knife. The knife fell down from the hands of Muhammad Khan.. He picked it up and injured Muhammad Khan, Muhammad Ashraf and Rehmat Khan in an open fight in self-defence and due to sudden provocation. He further stated that at the time of the occurrence he was merely 14 years of age. Talib Hussain denied his presence at the spot at the relevant time. The petitioners did not produce any evidence in their defence.
4. The case of the prosecution against the petitioners rested upon the ocular testimony of Muhammad Aslam (P.W.14), Rehmat Khan (P.W.13) and Ghulam Rasool (P.W.11). Of these, Rehmat Khan was injured during the course of the occurrence. They all supported the story of the prosecution. As already stated, the occurrence took place opposite the house of Muhammad Sharif. He was not cited as a witness in the first information report. The learned Additional Sessions Judge summoned him as Court witness. He too supported the story of the prosecution. It may be mentioned that there was no previous enmity between the parties. There is no reason why the eye- witnesses should have falsely implicated Talib Hussain also in the occurrence. Ashiq Hussain has himself admitted his participation in the occurrence. But his version is highly improbable and must be rejected as such. It is most unlikely that Muhammad Khan who was a police constable would allow his knife to fall down on the ground and let a lad of 14 or 15 years of age to pick up it and attack him fatally. The learned Judges in the High Court as well as the learned Additional Sessions Judge were right in accepting the story of the prosecution in preference to that of the petitioners.
The petitioners were, therefore, rightly convicted of offences under sections 302 and 307, read with section 34 of the Pakistan Penal Code. Talib Hussain has already been given the benefit of the lesser sentence so far as the offences under sections 302 and 307 are concerned. The petition as far as he is concerned is hereby dismissed.
5. The question of sentences awarded to Ashiq Hussain however needs further consideration. At the trial he gave his age as 16 years. His statement in this regard was not challenged by the learned Public. Prosecutor. If he was 16 years of age at the time of the trial he would only be 14 years old when the occurrence took place. The question for consideration is whether in view of the youth of Ashiq Hussain at the time of the occurrence, it was a fit case where the death penalty should nave been awarded to him. We grant leave to appeal to Ashiq Hussain only on the question of sentence.