' ALI HUSSAIN QAZILBASH, J.--This petition from jail arises from the judgment of a learned Division Bench of the Lahore High Court, dated 5-2-1985.
2. Muhammad Khan alias Muhammada, resident of village Bhakoki, Farooq Ahmad, Muhammad Ashraf and Rasool Bakhsh, residents of village Dhapai, Police Station Jalalpur Jattan, District Gujrat, were charged under section 302/307/435/34 P.P.C. For the murder of Muhammad Akram and injuries to Bashir Ahmad P.W. The occurrence is alleged to have taken place on the night between the 20th and 21st of March, 1980, the report of which was made by Bashir Ahmad on 21-3-1980 at 10.05 in the morning. It was alleged in the report that Bashir Ahmad complainant and his brother Muhammad Akram lived in the village. They had a common Dera which was at a distance of two squares from the Abadi of the village. On the night of the occurrence, the complainant, Muhammad Akram deceased, Rehmat Khan and Sardar Khan P.Ws were present at the Dera when at about midnight there was a drizzle as a result of which the complainant and Muhammad Akram took their cots to the western room while Sardar Khan and Rehmat Khan P.Ws. Took their cots to the eastern room. In the meanwhile four persons came from the southern side and they were seen in the lightning. The complainant and his companions saw that Muhammad Khan alias Muhammada was armed with a gun while Farooq Ahmad, Rasool Bakhsh and Muhammad Ashraf had sticks.
They came near the complainant party and raised a Lalkara that Bashir Ahmad and Muhammad Akram would be taught a lesson for getting Muhammada accused apprehended and for causing stick blows to Farooq Ahmad accused. Muhammada fired from his gun which hit the complainant's foot. Muhammad Akram deceased ran for his life towards the northern side but he was chased by Muhammada and fired at. Rasool Bakhsh caught hold of the complainant and Farooq Ahmad and Muhammad Ashraf gave him stick blows on the right shoulder, right arm and right knee. On hearing the fire-arm report and the noise, Rehmat Khan and Sardar Khan P.Ws reached there and saw the occurrence. The accused set the kahi, the bedding and cot of Muhammad Akram on fire.
They also wanted to throw the complainant in the fire but they were resisted by Rehmat Khan and Sardar Khan P.Ws. The accused then made good their escape. Thereafter Rehmat Khan and Sardar Khan started searching for Muhammad Akram but he could not be traced. The fire was later on extinguished and it was in the morning that they located the dead body of Muhammad Akram having fire-arm injuries on his hack in the field of wheat towards the southern side.
3. The motive given in the F.I.R. Was that one and a half years back, the complainant and Nazir etc. Had caused stick blows to Farooq Ahmad accused and that case was pending. About 4/5 days before the occurrence Muhammada accused had brought a pistol from Kuthiala, District Sialkot, and Muhammad Akram deceased had informed the owner of the pistol. This was very much resented by Muhammada and thus this murder.
4. Noor Muhammad, S H.O. (P.W.19) recorded the F.I.R., prepared the injury statement of the complainant and then went to the spot where he prepared the inquest report of the deceased and sent the dead body for post-mortem examination. He inspected the spot, took from there blood- stained earth, a pair of shoes, the ashes of burnt wood and a crime empty (P.2). On 25-3-1980 Rasool Bakhsh, Muhammad Ashraf and Farooq Ahmad appeared before him and were arrested.
Muhammada accused was absconding and he was declared a proclaimed offender.
Muhammada accused was arrested on 30-3-1981 by Muhammad Khalil (P.W.17). On his personal search, one hand-grenade and two pistols were recovered from him and he was sent to judicial lock-up on 2-4-1981. On 13-4-1981 Muhammada led Muhammad Ashraf A.S.I. To his house and from there gun P.6 was recovered in the presence of the witnesses. The gun was sent to the Fire-arm Expert to whom the crime empty had already been sent and his report is Exh.PQ which is positive.
5. Dr. Rashid Javed (P.W.17) medically examined Bashir Ahmad P.W. On 21-3-1980 and found the following injuries: "1.Multiple fire-arm wounds (about 13 in number) on left foot, each measuring 0.35 cm x skin deep on dorsal aspect of foot and toe.
2. Fire-arm wound 0.35 cm x 0.35 cm x skin deep on right foot pn dorsal aspect."
' The injuries were as a result of fire-arm and were declared simple. On the same day the Doctor conducted the post-mortem examination on the dead body of Muhammad Akram and found the following injuries: "1. Multiple fire-arm wounds 50 to 52 in number on back which were maximum on left side. There were also fire-arm wounds 12 to 14 in number on back of an outer side of left arm and fore-arm.
There were also 3-4 fire-arm wounds on back of left hip. There were also 4-5 small fire-arm wounds on left side of lumber region.
2. Swelling on back of head 2.5 cm x 2.5 cm."
' The stomach of the deceased contained semi-digested food and large intestines contained faecal matter. Injury No,1 was reported to have been caused by firearm while injury No,2 by blunt weapon. He also admitted that there were no blunt weapon injuries on the person of Bashir Ahmad P.W. And that possibility could not be ruled out that the injuries on the person of the deceased were as a result of different shots.
6. The prosecution in support of its case besides Dr. Muhammad Rashid Javed produced as many as 19 witnesses. Muhammada petitioner in his statement under section 342 Cr.P.C. Denied the whole of the prosecution case. He also denied his abscondence as a result of the occurrence and his arrest on 30-3-1981 but stated that he absconded from jail while he was undergoing sentence under the Arms Ordinance. The police wanted to apprehend him and involve him in this case falsely. He also denied the recovery of the gun at his pointation and stated that he has been involved in this case falsely because of his enmity with the police. The other accused also denied the whole case of the prosecution. The learned trial Court after the completion of the trial, vide its judgment dated 16-7-1981, convicted Muhammada petitioner under section 302/307/435, P.P.C.
And sentenced him to death and a fine of Rs,10,000 or in default to three years' R.I. He was further directed to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default to six months' R.I. He was also sentenced to seven years' R.I. Under section 307 P.P.C. And to a fine of Rs,1,000 or in default to one years' R.I. He was further directed to pay Rs,1,000 as compensation to Bashir Ahmad P.W. Or in default to suffer R.I. For one month.
Muhammada petitioner was also sentenced to one year's R.I. Under section 435, P.P.C. It was directed that if the sentence of death is commuted all the substantive sentences shall run concurrently. The other accused were, however, acquitted.
7. The appeal filed by Muhammada against his conviction and sentence has, however, been dismissed by the High Court through the impugned judgment.
8. We have heard the learned counsel for the petitioner and have gone through the judgments of the Courts below. The occurrence was alleged to have taken place at the dead of the night and the question to be considered would be whether the petitioner could be identified by the complainant in the light of `lightning' and further that there appears some discrepancy in the eye-version account qua the medical evidence. It is the case of the prosecution that the deceased was fired at one shot only but the Doctor at the trial admitted that the injuries on the person of the deceased could be as a result of different shots. Further the Doctor also did not find any blunt weapon injury on the complainant. We, therefore, grant leave in the matter to re-appraise the evidence in this case.