' MUHAMMAD RAFIQ TARAR, J---Criminal Appeal No, 313 of 1990 by Muhammad Shafi complainant and Criminal Appeal No, 314 of 1990 by Abid Latif convict are directed against the judgment of a learned Division Bench of the Lahore High Court, Multan Bench, dated 19-6-1990.
2. Abdul Latif and his sons Abid Latif and Zahid Latif were tried by a learned Additional Sessions Judge on the allegation that on 17-8-1985 at about 10-30 a.m. They committed the murder of Khalid Mahmood in furtherance of their common intention. By judgment dated 14-11-1987 all of them were convicted under section 302/34, P.P.C. Abid Latif was sentenced to death and a fine of Rs,5,000 and the other two were awarded imprisonment for life and a fine of Rs,5,000 each. On appeal Abdul Latif and Zahid Latif were acquitted but the appeal of Abid Latif was rejected and his death sentence was confirmed.
3. In this case leave was granted by order dated 5-9-1990 which reads as under:-- "These are two petitions for special leave to appeal from the judgment of the Lahore High Court.
One of them has been preferred through Jail by Abid Latif who is now the sole convict. The other has been filed by the complainant party.
(2) The parties reside in Kot Addu, Muzaffargarh Distict, and are closely related. Thus, Muhamamd Shaft complainant, is a real brother of Abdul Latif, respondent. Abid Latif, petitioner, and Zahid Latif, respondents, are the sons of Abdul Latif. It appears that during his lifetime, the father of the complainant had disinherited him. The father died sometime in 1975. Soon after his death the relations between Muhammd Shafi and Abdul Latif became extremely strained as Abdul Latif wanted to take over the entire property left by his father. This led to civil litigation between the two brothers. The litigation was pending in a Civil Court when the present occurrence took place.
(3) Abdul Latif, respondent, had a shop upon G.T. Road. The contiguous shop was occupied by Abdul Waheed, brother-in-law of Muhammad Shafi. According to the prosecution on 17-8-1985, at 10-30 a.m. Mst. Aisha Begum (P.W.6), wife of Muhammad Shafi, together with her son, Khalid Mahmood deceased, her daughter Mst Jamila Bibi (C.W.1) and Muhammad Bashir (C.W.2), father- in-law of Mst. Jamila Bibi, went to the shop of Abdul Waheed (P.W.8) as Mst. Jamila Bibi (C.W.1) wanted to see her maternal-uncle, Abdul Waheed (P.W.8), before catching a bus for Jhang where her in-laws lived. As soon as Abdul Latif saw them, he started abusing Khalid Mahmood deceased.
Mst. Aisha Begum (P.W. 6) intervened. Abdul Latif, respondent, called upon his two sons, Abid Latif petitioner, and Zahid Latif, respondent, to attack the deceased. Abid Latif, petitioner, whipped out a Chhura from his Shalwar. The deceased ran to save his life. He was followed by Abdul Latif and his sons. They seized him near the local bank. Abdul Latif and Zahid Latif held him by the arms while Abid Latif gave him Chhura blows. Mst. Aisha Begum tried to rescue her son. She was attacked by iron rods by Abdul Latif and Zahid Latif. On hearing the alarm a large crowd including Abdul Waheed (P.W.8) and his brother Fateh Muhammad (P.W.7) reached the spot. Abdul Latif and his sons then left the scene of. Occurrence with their weapons. Khalid Mahmood deceased was removed to the hospital but he died before any medical assistance could be rendered to him.
Abdul Waheed (P.W. 8) informed Muhamamd Shafi about the occurrence. Muhammad Shafi went to Police Station Kot Addu which was one furlong away and lodged the first information report at 11 a.m.
(4) The post-mortem examination of the deceased was performed by Dr. Abdul Hameed Chaughtai. He found one stab wound, five incised wounds and four abrasions on his dead body.
Mst. Aisha Begum (P.W. 6) was examined by Dr. Saeed Ullah Khan. She had a number of contusion marks on her two arms.
(5) After his arrest Abdul Latif was also examined. His right-hand wrist was found to be fractured.
(6) After his arrest Abid Latif assisted the investigationg officer in getting a blood-stained Chhuri recovered.
(7) At the trial Abdul Latif and his sons pleaded not guilty to the charge against them. Abid Latif and Zahid Latif denied that they were present at the scene of occurrence at the relevant time. Abdul Latif stated that on the day of occurrence Khalid Mahmood deceased and his mother Mst. Aisha Begum (P.W. 6) came to the shop and demanded its possession. When he declined to oblige them, Khalid Mahmood attacked him and broke his wrist. He picked up a pair of scissors from his shop and gave a number of blows to the deceased in order to save his life.
(8) At the trial the prosecution examined three eye-witnesses, namely Mst. Aisha Begum (P.W. 6), Fateh Muhammad (P.W. 7) and Abdul Waheed (P.W. 8); it gave up the other two eye-witnesses namely, Mst. Jamila Bibi (C.W.1) and her father-in-law Muhammad Bashir (C.W.2). The trial Court, however, examined them as Court witnesses. They also supported the story of the prosecution and described how the occurrence had taken place. They fully implicated Abdul Lath and his two sons in the attack upon the deceased and Mst. Aisha Begum. The prosecution also relied upon the evidence relating to the recovery of a blood-stained knife from the possession of Abid Latif, petitioner. It also led evidence to show that at the time of their arrest Abdul Lath and Abid Lath were wearing clothes stained with human blood.
(9) The trial Court convicted Abdul Latif and his sons of the offence under section 302. It did not record any conviction with regard to the attack upon Mst. Aisha Begum. However that may be, it sentenced Abid Latif to death and his father and brother to imprisonment for life. It also directed them to pay fines. On appeal and reference the High Court confirmed the sentence of death imposed on Abid Latif. It, however, acquitted Abdul Latif and Zahid.Latif by giving them the benefit of doubt.
(10)In support of its case it is alleged by the complainant party that the reasons given by the High Court in acquitting Abdul Latif and Zahid Latif were entirely insufficient. There was sufficient evidence on the record to fully establish their guilt and there was no question of giving them the benefit of doubt. The presence of injuries on the person of Mst. Aisha Begum and the number of incised blows received by the deceased indicated that the attack on them was made by more than one person. The High Court, therefore, ought not to have acquitted them.
(11) It is to be noticed that the injuries suffered by Abdul Latif were suppressed in the first information report. The eye-witnesses are related to each other and admittedly inimical towards the accused. In the circumstances a question arises whether the plea of self-defence raised by Abdul Latif has received due attention in the High Court. A We would, therefore, grant leave to appeal in both petitions. Bailable warrants in the sum of Rs,25,000 with one surety in the like amount each, returnable to the Assistant Commissioner, Kot Addu, shall issue against Abdul Latif and Zahid Latif."
4. Learned counsel for Abid Latif convict/appellant has reiterated the submissions made at the leave stage viz. That the defence plea raised by Abdul Latif accused was not properly considered.
In his statement under section 342 of the Cr.P.C. Abdul Latif acquitted accused had stated:- "Khalid Mahmood deceased had come to my shop on the day of occurrence and attacked on me.'
He fractured my wrist and injured me. In order to save my life I had acted in my self-defence and gave him 2/3 blows with one part of scissors meant for cutting the G.P. Sheets whereafter he ran away from my shop. The occurrence did not take place near Habib Bank. The police did not go to the place of occurrence and site plan was also not prepared. I had myself appeared before the police on 17-8-1985. Nothing was recovered from me. I am innocent."
' After examining the above plea the learned Judges of the High Court observed that injury No,1 on the person of Khalid Mahmood deceased which proved fatal could not have been caused with the blade of a scissors as attempted to be argued by the defence. This injury was a slightly oblique stab 3-1/2 c.m. x 1 c.m. Going deep in the left side of chest in the fifth intercostal space, 1-1/2 c.m.
From the midline with blood oozing out. It was further observed that there was no trail of blood between the shop of Abdul Latif accused and the place where according to the prosecution the occurrence had taken place, therefore, the defence plea that occurrence took place at the shop of Abdul Latif and the deceased after. Receiving the injuries at the said shop had run away towards Habib Bank was not believable and the prosecution version that deceased was attacked near Habib Bank from where blood-stained earth was taken rang true. Another reason which can be advanced to repel the defence version is that Abdul Latif an elderly person with injury on right fore- arm according to the medical evidence and fractured wrist on his own showing could not have caused that much harm to Khalid Mahmood deceased who was a young fellow. The defence version was, therefore, rightly rejected.
5. After examining the evidence on the record we find that so far as Abid Latif is concerned the Courts below have on a detailed scrutiny of evidence accepted the ocular evidence for valid reasons. No valid exception can, therefore, be taken to his conviction. However, the death sentence having been passed before 7-12-1988 the case is covered by the Presidential Amnesty Order as laid down by this Court in Eid Muhammad's case (PLD 1993 SC 17). His sentence stands reduced to imprisonment for life. The sentence of fine is however, maintained and he is given the benefit of section 382-B of the Cr.P.C.
' Learned counsel for the complainant/appellant in Criminal Appeal No, 313/1990 contends that there was reliable evidence against the respondents and they were acquitted by the High Court for insufficient reasons. The reasons which weighed with the learned Judges for returning a fmding of acquittal were that according to the eye-witnesses the respondents had caught hold of the deceased by his arms to facilitate the infliction of injuries by Abid Latif but the seats of injuries belied the prosecution on the question of holding the deceased. They particularly referred to the injuries on the fingers of the deceased. As for the blood found on the clothes of Zahid Latif and Abdul Latif it was observed that Abdul Latif had also received injuries and blood could have oozed out from his injuries as well and in any case that only showed their presence at the scene of occurrence. They acquitted the respondents by giving them the benefit of doubt by way of abundant caution. The respondents were not alleged to have caused any injury to the deceased.
The learned counsel could not point out any misreading, non-reading or misconstruction and could not show that the fmding arrived at by C the High Court was imaginary or artificial. In the circumstances no ground for interference with the order of acquittal is made out. The appeal is dismissed.