1. JAVID IQBAL, J.--This petition for leave to appeal has been filed by Muhammad Nawaz and Umar Hayat petitioners against judgment, dated 22nd December, 1986 of the Lahore High Court, Lahore whereby their convictions under sections 302/34 and 302/109, P.P.C. As well as sentence of life imprisonment plus fine were maintained and it was further ordered that both the petitioners who were released on parole should be arrested forthwith and sent to prison.
2. Briefly the facts are that the two petitioners alongwith Nusrat and Abdullah were tried under sections 302/34 and 302/109, P.P.C. By the Additional Sessions Judge, Jhang who vide his judgment dated 27th November, 1982 acquitted Nusrat and Abdullah but convicted both the petitioners under sections 302/34 and 302/109, P.P.C. And sentenced each of them to life imprisonment plus fine. In appeal the Lahore High Court, Lahore maintained their convictions as well as sentences and further ordered that both of them be arrested forthwith and sent to prison as they had been released on parole.
3. The occurrence took place at 7-30 a.m. On 26th February, 1981 in Bazar of Chak No.187/J. B. Tehsil Chiniot, District Jhang. F.I.R. Was lodged by Muhammad Afzal P.W. Nephew of the deceased Nur Akbar on the same day at 9-30 a.m. Both the petitioners were arrested on 15th March, 1981 and from both of them were recovered human blood-stained Tokas on 19th March, 1981. However, these recoveries had not been relied upon. There are three eye-witnesses of the occurrence namely Muhammad Afzal complainant P.W. Nephew of the deceased and Mst. Paras P.W. Sister-in-law of the deceased whereas the third eye-witness Khan P.W. Had not been relied upon.
4. The motive for crime is that about 18/19 years ago Nur Muhammad uncle of Muhammad Nawaz petitioner was murdered and the deceased in the present case was challaned in that case but he was acquitter). The petitioners were unhappy over his acquittal and that in order to avenge the murder of Nur Muhammad, they killed the deceased. The prosecution version is that on the fateful day the deceased and Mst. Paras P.W. Went to their land to bring milk. They were coming back from their land to their house while carrying milk. At that time Muhammad Afzal complainant P.W., Khan P.W. And one Amir were standing in the Chowk of the Bazar. When the deceased and Mst. Paras P.W. Reached near the shop of Nusrat (acquitted co-accused), the said Nusrat and the two petitioners suddenly came out of the shop. Nusrat was empty handed whereas both the petitioners were armed with Tokas. Muhammad Nawaz petitioner raised a Lalkara and told the deceased that he would take revenge of the murder of his uncle. Thereafter, Nusrat and Umar Hayat petitioner also shouted. Nusrat caught hold of the deceased and physically lifting brought him to his shop.
5. The pot in which the deceased had milk fell down. Then Nusrat threw the deceased on the ground.
6. Thereafter, Muhammad Nawaz petitioner inflicted Toka blow hitting the right side of the neck of the deceased. Then Umar Hayat petitioner inflicted Toka blow which fell on the chin of the deceased.
7. Thereafter, Muhammad Nawaz petitioner again inflicted a Toka blow which fell on the face of the deceased. Then Umar Hayat gave two more Toka blows on the face of the deceased and Muhammad Nawaz petitioner gave another Toka blow on the right hip of the deceased. According to the medical evidence there were six incised wounds on the neck, cheek, face and right hip of the deceased. The injuries had been caused by heavy sharp-edged weapon and death resulted due to shock and haemorrhage caused by these injuries which were sufficient to cause death in the ordinary course of nature.
8. The findings of the Lahore High Court, Lahore are that the motive alleged in this case against both the petitioners could not be demolished by defence. Reliance was placed on the ocular testimony of the two eye-witnesses namely Muhammad Afzal and Mst. Paras P.Ws. It was held that mere relationship with the deceased of Muhammad Afzal complainant-P.W. Was no ground to discard his testimony if otherwise his evidence was natural and that Mst. Paras P.W. Stood the test of cross- examination very well. Thus, the evidence of the two eye-witnesses was considered as sufficient in law for upholding the conviction as it was being supported also by the medical evidence besides the motive.
9. Learned counsel for the petitioners argued that due to close relationship with the deceased the two eye-witnesses were interested and their testimony was uncorroborated. Furthermore, it was submitted that the ocular testimony had been disbelieved in respect of the two acquitted co- accused. This argument had also been raised before the appellate Court in the form that the credibility of the witnesses was not divisible, but the Lahore High Court, Lahore has rightly rejected the same.
10. We have carefully considered the arguments of the learned counsel for the petitioners and in our view no case is made out for re-appraisal of evidence in this case.
11. At this stage learned counsel for the petitioners argued that the Lahore High Court, Lahore had ordered in the impugned judgment that pending appeal the two petitioners who were released on parole should be arrested forthwith and sent to prison. In this connection he read before us sections 2 and 4 of the Good Conduct Prisoners, Probational Release Act, 1926, as well as rule 38 of the Pakistan Prison Rules (framed under section 59 of Prisons Act, 1894) and submitted that a period spent out of prison by a convict on parole would be counted towards his sentence and that there was no justification on the part of the Lahore High Court, Lahore to order that the petitioners who had been released on parole should be arrested forthwith and sent to prison. Mr. S.M. Zubair, learned Additional` Advocate-General was given notice and he appeared before us today. We have also heard him and he agrees with the learned counsel for the petitioners in this connection.
12. Sections 2 and 4 of the Good Conduct Prisoners' Probational Release Act read as follows: "2. Notwithstanding anything contained in section 401 of the Code of Criminal Procedure, 1898, where a person is confined in prison under a sentence of imprisonment, and it appears to the Provincial Government from his antecedents or his conduct in the prison that he is likely to abstain from crime and lead useful and industrious life, if he is released from prison, the Provincial Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a servant of the state or a secular institution or of a person or society professing the same religion as the prisoner, named in the licence and willing to take charge of him."
13. "4. The period during which a person is absent from prison under the provisions of this Act on a licence which is in force shall be reckoned as a part of the period of imprisonment to which he was sentenced, for the purpose of computing the period of his sentence and for the purpose of computing the amount of remission of his sentence which might be awarded to him under any rules in force relating to such remission."
14. Rule 38 of the Pakistan Prison Rules reads as follows: "38. The period spent out of a prison by a convict on parole shall count towards his sentence unless specifically ordered otherwise in any particular case."
15. These provisions have been promulgated by the Provincial Government for the benefit of those prisoners from whose good conduct and behaviour in the prison it could be presumed that they are likely to abstain from crime and lead a useful as well as industrious life if they were to be released from the prison. If such an inference could be drawn from the antecedents of a prisoner then the Provincial Government issues a licence permitting him to be released from the prison on the condition that he would be placed under the supervision of someone. Then the period during which such a prisoner is absent from the prison under a licence is to be reckoned as part of the period of imprisonment to which lie was sentenced. There certainly appears wisdom in the enactment of these provisions because these are for the benefit of a prisoner who has shown signs of ethical or moral improvement in his character while in the prison and due to that is being release from the prison on parole. It is in fact an inducement or encouragement to him to abstain from crime in the future and to lead a useful and industrious life. Apparently these provisions had not teen brought to the notice of the Lahore High Court, Lahore which probably mistakenly might have been under the impression that the petitioners had been released on bail and it was under this impression that direction was given that they should now be arrested forthwith and sent to the prison.