SAAD SAOOD JAN, J.----Saadat Nawaz alias Tipu, his father, Muhammad Nawaz, and Hamid Aslam alias Hamma were convicted under section 302, read with section 34 of the Pakistan Penal Code by the Additional Sessions Judge, Lahore for causing the death of Imtiaz Butt deceased and were sentenced to suffer imprisonment for life and fines. They preferred appeals against their convictions and sentences in the High Court. By its Judgment dated 10-12-1986 the High Court acquitted Muhammad Nawaz and Hamid Aslam. It acquitted Saadat Nawaz also of the charge under section 302 but convicted him of an offence under section 304, Part I of the Pakistan Penal Code. For this offence it sentenced him to rigorous imprisonment for a period of ten years and fine, in addition to asking him to pay compensations to the heirs of the deceased. The judgment of the High. Court has given rise to these three petitions for special leave to appeal. One has been filed by Saadat Nawaz wherein he has challenged his conviction and sentence. The other two have been filed by Mst. Sharifan Bibi, mother of the deceased. She has challenged the acquittal of Saadat Nawaz, Muhammad Nawaz and Hamid Aslam of the charge under section 302 and has sought the restoration of their convictions and sentences as recorded by the trial Court.
2. According to the prosecution on 16-1-1984 Mst. Sharifan Bibi (P.W.5) together with her son Imtiaz Butt deceased and her husband's brother, Muhammad Rafique (P.W.6), went to Sahowari to visit her relatives who lived in the vicinity of the house of Saadat Nawaz. In the afternoon, the deceased went on the roof and started flying a kite. Saadat Nawaz was also flying a kite on the roof of his own house. The two kites crossed) each other and as a result the kite of the deceased was cut. The deceased went to the house of Saadat Nawaz and accused the latter of using a dirty trick in cutting his kite. This accusation led to a quarrel which was joined by Muhammad Nawaz and Hamid Aslam. At the instance of Muhammad Nawaz, Saadat Nawaz brought a revolver from his house which he gave to Hamid Aslam who twice fired at the deceased. After being hit in the forehead and left cheek the deceased fell down. He was taken to a hospital where he later died.
3. Mst. Sharifan Bibi made a statement in the hospital before a police officer. On the basis of this statement a case was registered at Police Station Mughalpura on the same day.
4. At the trial Saadat Nawaz, his father and Hamid Aslam denied that they were responsible for causing the death of the deceased They alleged that they had been falsely implicated in the case.
They produced two witnesses in their defence. None of these witnesses had anything to say about the actual occurrence.
5.The case of the prosecution against Saadat Nawaz and his co-accused rested entirely upon the ocular testimony furnished by Muhammad Ismail (P.W.4), Mst. Sharifan Bibi (P.W.5) and Muhammad Rafique (P.W.6). The learned trial Court relied upon their testimony and convicted Saadat Nawaz and his co-accused of an offence under section 302, read with section 34 of the Pakistan Penal Code. He refrained from passing the extreme penalty provided for the offence on the ground that it was not a premeditated murder but was the result of a sudden flare-up.
6.On appeal the High Court rejected the testimony of Muhammad Ismail (P.W.4) on the ground that he had no satisfactory explanation for his presence at the spot at the relevant time and that he was not cited as an eye-witness in the F.I.R. It also discarded the credence of Muhammad Rafique (P.W.6) for the reason that he was empolyed in the railways workshop and his presence at the spot at the relevant time was doubtful. It is to be noticed that in the F.I.R. Mst. Sharifan Bibi .(P.W.5) had attributed the firing at her son to Saadat Nawaz. However, at the trial she deposed that it was Hamid Aslam who had fired the fatal shots at her son. The High Court accepted the version which she had given in the F.I.R. And accordingly convicted Saadat Nawaz-and acquitted the other two co-accused.
7.In support of the petition preferred by Saadat Nawaz it is contended that after the testimony of Muhammad Ismail (P.W.4) and Muhammad Rafique (P.W.6) had been excluded from consideration there was not enough evidence to support his conviction, for, then the only remaining eye-witness, namely, Mst. Sharifan Bibi (P.W.5) had made two different statements with regard to the person who had actually fired at her son. Her version was also not natural for the reason that at the relevent time, if the story of the prosecution was to be believed, there were three persons pitched against the deceased: if they so wanted they could have beaten the deceased to pulp without sending for a revolver. Apart from that the dispute which allegedly led to the occurrence was not so serious as would have motivated the assailants to kill the deceased who being unarmed posed no threat to them.
8.In support of the petitions filed by Mst. Sharifan Bibi it is stated that it was a case of deliberate firing by a lethal weapon on a vital part of the body of the deceased who was unarmed at the relevant time. It was thus a case of intentional killing not covered by any of the exceptions mentioned in section 300 of the Pakistan Penal Code. The High Court was, therefore, not right in acquitting Saadat Nawaz and his co-accused of the offence under section 302 of the Pakistan Penal Code. As regards variation in the two versions given by Mat. Sharifan Bibi with regard to the person who had actually fired at her son, it is stated that at the time when she made the statement before the police officer she was in a state of shock as her son was dying in the hospital. However, soon after making the said statement she gave a supplementary statement to the Investigating Officer wherein she corrected herself. In the circumstances the High Court was not right in acquitting Hamid Aslam on the basis of the version given in the F.I.R.
9.The contention raised on behalf of the parties need further examination: Leave to appeal is granted to Saadat Nawaz against his conviction and sentence and to Mst. Sharifan Bibi in so far as the acquittal of Saadat Nawaz and Hamid Aslam of the charge under section 302, read with section 34 of the Pakistan Penal Code is concerned. With regard to the acquittal of Muhammad Nawaz leave is refused as it seems extremely unlikely that a 50 years old man would get involved in a quarrel of teen-agers particularly when his son was being aided by Hamid Aslam. Bailable warrants in the sum of Rs.20,000 with one surety returnable to the District Magistrate, Lahore shall be issued against Hamid Aslam.