' ZAFFAR HUSSAIN MIRZA, J.--These are two petitions for leave to appeal against judgment, dated 2nd December, 1985, by a learned Single Judge of the Lahore High Court and are accordingly being disposed of by this common order.
2. Petitioners, Muhammad Hanif, Bashir Ahmad, Sajad Mahmood, Rashad Mahmood (in Criminal Petition No,3-R/1986) and one Sultan Mahmood were tried by the learned Sessions Judge, Sahiwal, under section 302/149, P.P.C. For the murder of Muhammad Sharif and under section 307/149, P.P.C.
For murderous assault on Ijaz Rasul (P.W.9) and Rashid Ahmad (P.W.8). The trial Court acquitted Sultan Mahmood of all charges but convicted the other four aforesaid petitioners under section 302/149, P.P.C. On one count for murder of Muhammad Sharif sentencing petitioner Muhammad Hanif to death as well as fine of Rs,10,000 or in default three years' R.I. He was also ordered to pay compensation or suffer R.I. For six months and the rest of the convicts were sentenced to imprisonment for life each plus the same fine and compensation as in the case of Muhammad Hanif. These convicted persons shall be referred to in this order as the convicts.
3. The appeal filed by the convicts was dismissed by the learned Single Judge of the Lahore High Court by the impugned judgment except for modification in the sentence of death awarded to convict Muhammad Hanif. It was substituted with imprisonment for life, the remaining sentences were, however, maintained.
4. Being aggrieved the convicts have come up before this Court to challenge the judgment of the High Court. Muhammad Ibrahim father of the deceased is the petitioner in the other petition (Criminal Petition No,21/1986). He had filed a criminal revision in the High Court against the judgment of the trial Court praying for enhancement of sentence awarded to the convicts other than Muhammad Hanif and another revision petition against the acquittal of Sultan Mahmood which were both dismissed by the High Court for the same reasons on which the appeal of the convicts was disposed of. He has, therefore, prayed for leave to appeal from the judgment of the High Court in appeal and murder reference as well as criminal revision filed by him.
5. The occurrence in this case took place on 15th September, 1982, at 5.30 p.m. On the road in the area of Mohallah Eid Gah, Arifwala Town. The prosecution case is that the deceased Muhammad Sharif alongwith Muhammad Aslam (PW.6), Rashid Ahmad (P.W.8), Ijaz Rasul (P.W.9) and one Shamshad were riding in a tonga proceeding towards their village in Chak No,19/EB. When they reached the culvert of Rajbah 2-L of Chak No,63/EB, the convicts armed with Chhuris accompanied by two unknown persons armed with Dangs suddenly appeared on the road and stopped their tonga. Muhammad Sharif deceased who was sitting in the rear seat alighted from the tonga and was immediately assaulted and inflicted a Chhuri blow on the left side of his abdomen by Muhammad Hanif. On sustaining the injuries Muhammad Sharif fell down and in the meantime Ijaz Rasul (P.W.) also got down from the tonga. He was attacked by convicts Muhammad Hanif and Sajad Mahmood who gave him injuries with Chhuris on his abdomen and back. Convict Rashid Mahmood inflicted injuries with Chhuri on the buttock and chest of Ijaz Rasul, whereas the unknown assailants gave stick blow to Ijaz Rasul and Rashid Mahmood (P.Ws.). Afterwards the assailants decamped from the scene, leaving behind a motor cycle which is said to have belonged to convict Muhammad Hanif. The motive for the crime is said to be a fight that had taken place about 4-1/2 months prior to the present occurrence between Ijaz Rasul (P.W.) and Rashid Mahmood convict in respect of which a case under section 506/308, P.P.C. Was registered against Ijaz Rasul which is still pending. According to the prosecution it was on account of this grudge that the four convicts committed the crime at the instance of Sultan Mahmood acquitted co-accused.
6. At the trial the prosecution relied on the ocular testimony furnished by Muhammad Aslam (P.W.6), Rashid Ahmad (P.W.8) and Ijaz Rasul (P.W.9), as well as the evidence of motive, medical evidence and the recoveries of incriminating articles from the accused persons. The accused in their statement pleaded false involvement due to enmity. The trial Court, however, did not rely on the evidence of recovery of crime weapon from three of the convicts and mainly relied upon the ocular testimony to convict the four convicts.
7. In support of the petition filed on behalf of the convicts it was mainly contended that the learned High Court has erred in upholding the conviction of the three convicts other than Muhammad Hanif for murder of Muhammad Sharif as according to the learned counsel circumstances on record indicate that the same was individual act of convict Muhammad Hanif. In this behalf it was argued that the motive alleged by the prosecution related to only Ijaz Rasul (P.W.) and the three convicts had no grudge or community of interest against the deceased. As regards Muhammad Hanif it was contended that according to the prosecution case the deceased was given a single knife blow by the said convict and the three convicts were not attributed any overt act in regard to the deceased, excluding any basis for vicarious liability. Learned counsel forcefully contended that as the prosecution case was that Ijaz Rasul (P.W.) was the main target of the assault, the act of convict Muhammad Hanif in inflicting single Chhuri blow to the deceased was his individual act. On these grounds learned counsel argued that the question of vicarious liability of the three convicts other than Muhammad Hanif requires to be examined in the light of the circumstances mentioned above and the evidence on the record. He also pointed out to the statement of Ijaz Rasul (P.W.) recorded as a dying declaration in which a different version as to the injuries received by Muhammad Sharif was given which indicated that deceased was inflicted more than one injury by all the four convicts: Learned counsel submitted that subsequently the prosecution modified its case in order to bring it in confirmity with the actual damage done to the deceased. It was pointed out that the only independent witness on the scene was the driver of tonga one Shamshad who was not examined.
8. According to the medical evidence deceased had received a stab wound on the left side of the abdomen in lower part and on the left pubic region. He had also sustained a lacerated wound on the left side of the head which was simple in nature. Ijaz Rasul (P.W.9) was found to have received as many as 12 injuries out of which three were incised and the rest with blunt weapon. Only one incised injury was found to be grievous. Rashid Ahmad (P.W.) had received three injuries with a blunt weapon which were all simple in nature.
9. In support of the petition filed by the father of deceased it was contended that the circumstances on record fully justified the extreme penalty of death against all the convicts for the malicious assault made by them intentionally against the complainant party resulting in the death of one and injuries to two persons. It was urged that the convicts who were armed with Chhuris did cause injuries to the deceased and Ijaz Rasul (P.W.) which furnished evidence of preconcert and common intention. Grievance was also made for not confirming the sentence of death imposed on convict Muhammad Hanif without any extenuating circumstances. On these grounds learned counsel submitted that there has been miscarriage of justice in this case.
10. After hearing the learned counsel we feel that the question of the guilt of the convicts and the propriety of the sentence requires to be examined in the light of the evidence on record in order to see whether the case has been decided in accordance with the principles laid down by this Court for dispensation of justice in criminal cases. We, therefore, grant leave to appeal in both petitions except against respondent Sultan Mahmood who took no active part in the commission of the crime and was acquitted by the trial Court. Criminal Petition No,21/1986 is dismissed partly as regards the said Sultan Mahmood.
11. Learned counsel appearing for the convicts has requested for suspension of sentence and grant of bail to convicts other than Muhammad Hand. Let notice issue to the Advocate-General (Punjab) for tomorrow.