SHAFIUR RAHMAN, J: --Two petitions have been filed; one (Cr.P. No.9-R of 1988) is by the two convicts Atta Muhammad and Muhammad Akram--one of them sentenced to death and the other to life imprisonment; the other (Cr.P.No.37/88) is by Haji Ghulam Qadir a brother of the deceased Ghulam Rasool, seeking leave to appeal against the same judgment dated -8-3-1987, whereby two of the accused Muhammad Abdullah and Muhammad Azeem were acquitted and the death sentence of Muhammad Akram convict was not confirmed and substituted by a sentence of life imprisonment.
2. The prosecution case at the trial was that the four accused, who happened to be closely related inasmuch as Atta Muhammad, Muhammad Adbullah and Muhammad Azeem are brothers and Muhammad Akram is son of Muhammad Abdullah, had obtained a sum of Rs.22,000 in the course of business from the deceased, the return of which he was asking for. A quarrel had taken place the same day over it. At 1.00 p.m., when Ghulam Rasool happened to be at the shop of Muhammad Aslam, the four accused, three of them armed with fire-arms and Muhammad Akram empty handed, came. Akram picked up a brick and hurled the same towards the deceased hitting him on the head, the others fired. The shot of Atta Muhammad injured Ghulam Rasool who died of the injuries. A report about the occurrence was lodged. Ghulam Qadir claimed to be present and to have seen the occurrence. Aslam was, however, considered to be an independent witness, a natural witness and his testimony intrinsically found to be true. The trial Court held them guilty under section 302/34 P.P.C. And convicted and sentenced Atta Muhammad and Muhammad Akram to death and a fine of Rs.2,000 each. The other two accused were sentenced to life imprisonment and the same amount of fine.
3. The High Court while seized of the matter/question of the confirmation of the death sentence and the, appeal of the convicts, acquitted Muhammad Abdullah and Muhammad Azeem, substituted the sentence of life imprisonment for death imposed on Akram and confirmed the death of Atta Muhammad.
4. Mr.M.B. Zaman, Advocate, the learned counsel for the convicts/petitioners (Cr.P 9-R/88), has claimed that there are two instances of misreading of evidence in the judgment. The first, according to him is contained in the judgment of the High Court at page 12 where the indication is that Akram has been attributed the role of throwing a brick-bat and then following it by attack with lethal weapons and firing two shots at the deceased. In fact, Akram had not fired any shot at all.
Similarly, at page 5 of the judgment the High Court has noted that "from the spot a blood-stained brick P-11 was secured and the same was taken .Into possession." According to the learned counsel, no such blood-stained brick was recovered. He has also referred to two documents where the investigating officer was questioned about the material interpolation with a view to improve upon the prosecution case. Further, according to him, it could be demonstrated from the evidence that Qadir and Aslam were, not present at the time of occurrence. In any case, according to him, by throwing a stone, Akram could not share the common intention with others who had fired subsequently.
5. As regards the acquittal, the learned counsel for the complainant, Mr. Ijaz Hussain Batalvi, Advocate, contended that if Aslam was found to be a natural, trustworthy and disinterested witness, his testimony was sufficient to involve and implicate the two acquitted accused. Besides, Akram by throwing the brick causing an injury on the head which alongwith other injuries caused the death of deceased Ghulam Rasool, had made himself liable to be sentenced to death. There was no mitigating circumstance such as to justify the substitution of sentence.
6. In view of the submissions made, leave to appeal is granted in both the petitions so as to ensure the safe administration of criminal justice. Bailable warrants of arrest in the sum of Rs. 25,000 each with two sureties each in the like amount shall issue against the acquitted accused Muhammad Abdullah and Muhammad Azim, returnable to A.C./Duty Magistrate, Mianwali.