' MUHAMMAD AFZAL LONE, J.---Mahmood alias Moodi, the petitioner herein, alongwith his two brothers Ayub and Aman Ullah, was tried for the murder of Imtiaz and committing murderous assault on the injured P.Ws. Namely, Liaqat Hussain and Arshad Mahmood, and causing injuries to.
Jahangir. The Additional Sessions Judge, Faisalabad, by his judgment, dated 21-6-1987, convicted the petitioner, Ayub and Aman Ullah, under section 302/34, P.P.C., awarded death sentence to the petitioner and life imprisonment to the two co-accused. Additionally, a fine was also imposed on them. The three accused were also convicted under section 324/34, P.P.C., for causing injuries to Liaqat, Arshad Mahmood and Jahangir under section 326/34, P.P.C., for causing grievous hurt to Arshad Mahmood and Jahangir, for which they were sentenced to various terms of imprisonment and fine. The sentences of imprisonment were to run concurrently.
2. The High Court upheld the conviction of the petitioner and other convicts, and the sentences awarded to them, except that their conviction under sections 324 and 326/34, P.P.C., recorded by the trial Court for causing injuries to Jahangir, was set aside. Accordingly, the death sentence of the petitioner , was confirmed.
3. The occurrence took place on 21-9-1985 at 5-00 p.m. In the Chowk near the baithak of the, complainant party in the area of Chak No,226 at a distance of 16 miles from the Police Station Samundari, District Faisalabad. The prosecutions' version is that Liaqat Hussain (complainant) alongwith his 2 brothers, Arshad Mahmood (P.W.7) and Imtiaz (deceased) and Jahangir (given up as having been won over by the accused party) were standing in the Chowk near their baithak, that the petitioner and Amanullah armed with Chhuris, and Ayub armed with .12 bore carbine, appeared on the scene; the petitioner inflicted Chhuri's blows on the complainant and the deceased. Arshad Mahmood received fire arm injury at the hands of Ayub and was also struck a Chhuri's blow by Amanullah. The latter further caused four consecutive blows with his Chhuri to Jahangir. All the injured persons were taken to the Civil Hospital, Samundari, but Imtiaz could not survive. On a rukka sent to the S.H.O. Police Station Samundari, by Dr. Ghulam Rasool (P.W.4), Javed Ali, Inspector, reached the Hospital and recorded the statement of Liaqat Hussain; on the basis whereof a formal F.I.R. Was lodged. He then conducted the invetigation of the case. The motive pleaded at the trial was that 8/10 days before the occurrence, the petitioner was challaned for possession of illicit firearm and he suspected that Liaqat Hussain spied on him.
4. The defence put forth by the petitioner is to be found in his statement under section 342, Cr.P.C., which is reproduced below:- "The complainant party had a motive to assault me, and they launched an aggression against me.
I took shelter into the house of Malik Naseem. The complainant party, one after the other, entered that house, assaulted me; they assaulted me and caused injuries to myself, and they themselves received injuries in self-defence and also at the hands of the sons of Malik Naseem aforesaid, who tried to save me from the hands of the complainant party. When I appeared before the police, I showed my injuries to the 1.0., who intentionally did not prepare an injury statement and did not get me medically examined. After the expiry of my physical remand, I was sent to the Judicial Lock Up and thus my injuries could not be examined by any M.O.".
5. The prosecution examined 9 witnesses including Liaqat Hussain, Arshad Mahmood and Ali Haider, who gave an ocular account of the occurrenece. The trial Court based the conviction of the petitioner and the co-accused on the testimony of eye-witnesses and the medical' evidence. The prosecution version regarding motive and the recoveries was however not believed. Likewise, the petitioner's defence was also discarded.
6. In hearing the appeal filed by the convicts and the Reference under section 374, Cr.P.C. The High Court maintained that non-proof of the motive was not fatal to the prosecution case. It was noticed that the petitioner admitted the occurrence. However, the plea set up by him in defence was not considered as plausible. The High Court regarded the eye-witnesses as truthful witnesses, whose evidence stood corroborated by the medical evidence.
7. After going through the record before us, we are inclined to hold that the prosecution succeeded in proving the case against the petitioner and he was justifiably convicted under section 302, P.P.C.
Even the petitioner's learned counsel, when faced with the evidence mustered by the prosecution,.
Did not have much in questioning the petitioner's conviction, but relying on Ali Hussain and another v. Mukhtar and 2 others 1983 SCMR 806 and Manzoor Ahmad v. The State PLD 1983 SC 197, he contended that as the motive alleged by the prosecution was not sustained lesser of the two sentences provided by law ought to have been imposed on the petitioner.
' We are of the opinion that the issue raised by the learned counsel needs examination. Leave is, therefore, granted on the question of sentences only.