SAAD SAOOD JAN, J.--This is a petition for special leave to appeal by two brothers, namely, Muhammad Sharif and Muhammad Munir, who were convicted by the Sessions Judge at Sialkot of offences under sections 302 and 307, read with section 34, of the Pakistan Penal Code for causing the death of Muhammad Hussain deceased and making a murderous assault upon Abbas A.I P.W.
For the offence under section 302 Muhammad Sharif was sentenced to death and Muhammad Munir was directed to suffer imprisonment for life. For the offence under section 307 they both were directed to suffer rigorous imprisonment for a period of five year. In addition they were also asked to pay fines in respect of the two offences. On appeal and reference the High Court upheld the convictions of the petitioners of the offences under sections 302 and 307 and maintained their sentences except to the extent that the sentence of death awarded to Muhammad Sharif was not confirmed and instead he was directed to suffer imprisonment for life.
2. Together with the petitioners their father Muhammad Boota, their four brothers, Muhammad Bashir, Muhammad Saddique, Muhammad Rafique and Nek Alam, and one Muhammad Arshad were also tried by the learned Sessions Judge on the same charges but they were acquitted.
3. According to the prosecution Abbas A.I P.W.10 had taken some agricultural land on lease from two brothers namely Muhammad Shafique and Khuda Bakhsh. After the death of Muhammad Shafique, Muhammad Boots, father of the petitioners, started claiming that he had obtained the lease of the said land from Khuda Bakhsh. A fortnight prior to the occurrence Muhammad Boots.
Asked Abbas A.I to hand over the possession of the land to him. On this Abbas A.I filed a suit and obtained an order for the maintenance of status quo pendente lite from a civil Court at Daska. This was the background in which the present occurrence took place.
4. It was further alleged by the prosecution that on the morning of 26-6-1979 Abbas A.I (P.W.10) and Muhammad Tufail (P.W.11) went to the land in question with a tractor and ploughed it. Muhammad Tufail (P.W.11) was the driver of the tractor. While the land was being ploughed, Muhammad Hussain deceased, brother of Muhammad Tufail (P.W.11), also came there. Muhammad Boot, had his cattle shed near the land and he was present there while the land was being ploughed. Suddenly he raised a Lalkara whereupon the petitioners and their co-accused emerged from a nearby Charri field. They were carrying different arms. The petitioners had 12 bore guns with them. Muhammad Sharif fired and hit Muhammad Hussain deceased. Abbas A.I (P.W.10) raised his arm to stop the assailants from firing. Muhammad Munir fired at him and he was hit in the left hand. After the departure of the petitioners and the co-accused, Muhammad Hussain deceased was carried to the Civil Hospital at Sialkot where he succumbed to his injuries. The occurrence was reported at P.S. Sambrial on the same day at 2-50 p.m.
5. Immediately after the occurrence the petitioners and the co-accused absconded. They were not arrested for a number of months till after the occurrence.
6. At the trial the petitioners and the co-accused pleaded not guilty to the charges against them.
They denied that they were responsible for causing the death of the deceased or for firing at Abbas A.I (P.W.10). They alleged that they had been falsely implicated on account of enmity. They denied that they had absconded after the occurrence and explained that they had left the village and shifted to Hafizabad out of fear of the police which was inimical towards them and had concocted a false case against them. They also stated that they had no reason at all to kill Muhammad Hussain who had previously supported their cause. They produced two witnesses and a number of documents in their defence.
7. The case of the prosecution against the petitioners and the co-accused rested upon the ocular testimony furnished by Abbas A.I (P.W.10); Muhammad Tufail (P.W.11) and Nawab (P.W.12). It is also relied upon the fact that soon after the occurrence the petitioners and the co-accused had absconded) from the village.
8. It is contended on behalf of the petitioners that there was serious enmity between the parties. In this context reference has been made to paragraph 19 of the judgment of the learned Sessions Judge wherein he observed: "It is evident from the documentary evidence produced by Muhammad Boota accused in defence referred to elsewhere in this judgment that there is a. Long standing enmity between the accused and the complainant party. Muhammad Sharif accused was once abducted and recovered from the Dera of Nazir and Bashir who are the sons of the paternal aunt of Attaullah and Sanaullah P.Ws.
The name of Abbas A.I complainant also appears in the F.I.R. Which was lodged by Muhammad Boots in this respect. Muhammad Sharif accused was found chained with a pillar of the Dera by the Bailiff of the High Court. Therefore, the relations of the parties were strained even prior to the occurrence and that they were inimical with each other. Keeping in view this aspect of the case, the possibility that innocent people might have been roped in to face the trial in this case cannot be ruled out."
During the course of the proceedings which took place in the High Court and to which reference has been made by the learned Sessions Judge in the above extract, Muhammad Sharif petitioner had made a statement. In that statement (Exh. D. J) he had alleged that after his abduction he was taken to the house of Tufail. Nawab (P.W.12) was a relation of Muhammad Tufail (P.W.11). Thus, according to the petitioners, none of the eye-witnesses can be described as an independent or disinterested person.
9. It is further contended that the doctor who performed the post-mortem examination of Muhammad Hussain deceased had found blackening around the wounds suffered by him. This indicated that he was hit from a very close range by a direct fire. The petitioner and the co- accused had no enmity whatsoever with Muhammad Hussain deceased who had in the past sworn an affidavit in their favour. He was in no way connected with the dispute over the land. If the story of the prosecution was true the target of the attack should have been Abbas A.I (P.W.10) or Muhammad Tufail (P.W.11) and not Muhammad Hussain deceased.
10. It is also contended that the case of the petitioners was in no wise different from that of the co- accused for the evidence against the petitioners was precisely the same as was against the co- accused. That being so, the High Court and the learned Sessions Judge ought not to have convicted them without there being any distinguishing feature.
11. The contentions raised on behalf of the petitioners need examination. Accordingly, they are allowed leave to appeal.