1. ' WALI MUHAMMAD KHAN, J.---Haji Maula Bakhsh and Allah Ditta, petitioners herein, call in question the judgment dated 11-1-1987 passed by the learned Additional Sessions Judge, Rawalpindi, whereby they were convicted under section 302/34, P.P.C. For having committed the murder of Gul Faqir deceased and also under section 307/34, P.P.C. For murderous assault upon Zafar Mahmood complainant/P.W.7 and Fazal Din P.W. 6, and the former was sentenced to death under section 302/34, P.P.C. And the latter to life imprisonment under section 302/34, P,P.C. And both of them were awarded fine and imprisonment in lieu thereof under section 302/34, P.P.C. And were also sentenced to various terms under section 307/34, P.P.C.
2. ' The facts of the case in a nutshell are that Mst. Fazal Jan D.W. 4 was the wife of Gul Faqir deceased, who while serving in a foreign country used to send her money. On his return the spouses fell out and as a result thereof Mst. Fazal Jan went to village Bhera in P.S. Khan Pur to the house of Muhammad Riasat her step-brother about a month prior to the occurrence. The deceased made efforts to bring her back but in vain. On the day of occurrence viz., 18-7-1985, it is alleged that Allah Ditta accused/petitioner brought Mst Fazal Jan to the house of his co-accused Haji Maula Bakhsh situated in Liaquat Abad, Wah Cantt., and the same day at 12-15 noon the complainant Zafar Mahmood, his father Gul Faqir deceased, and his uncle Fazal Din the injured P.W.
3. Alongwith Muhammad Shafiq (given up P.W.) went to the house of Haji Muala Bakhsh accused/petitioner to bring back Mst. Fazal Jan and on reaching there they found both the accused/petitioners present outside the house. The deceased inquired from Allah Ditta accused/petitioner as to where Mst. Fazal Jan was to which he replied in negative. The deceased wanted to go inside the house for ascertaining the presence of Mst. Fazal Jan which was resisted by Allah Ditta accused/petitioner with the dire consequences. On the insistence of the complainant party, Allah Ditta petitioner whipped out a pistol and fired at Fazal Din P.W. Hitting him on his belly followed by the firing by Haji Maula Bakhsh petitioner with a pistol hitting Gul Faqir deceased on his chest, whereafter both the accused/petitioners fired at the complainant party resulting in injuries to the deceased, Zafar Mahmood complainant and Fazal Din P.W. Haji Maula Bakhsh petitioner succeeded in making good his escape while Allah Ditta petitioner was apprehended and disarmed of the pistol containing the empty magazine and another magazine having seven live rounds, two identity cards one of Allah Ditta petitioner and the other of his father Ghulam Haider and the torn shirt and Salooka of Allah Ditta petitioner which remained in the hand of the complainant party during the scuffle in which Allah Ditta petitioner was able to rescue himself. The motive disclosed by the prosecution is illicit relations between Haji Maula Bakhsh and Mst. Fazal Jan. Zafar Mahmood complainant reported the occurrence which was recorded vide Exh.PA/1 correctly incorporated in the F.I.R Exh.PA. Necessary. Investigation was carried out and the accused/petitioners were put on trial before the learned Additional Sessions Judge, Rawalpindi, who framed charge-sheet against them to which they pleaded not guilty, recorded the prosecution evidence, the statement of the accused/petitioner under section 342, Cr.P.C. And statement on oath under section 340 (2), Cr.P.0 and the statement of defence witnesses produced by them, and on the appraisal of the evidence so recorded, the learned trial Judge found the accused/petitioners guilty for the murder of the deceased and murderous assault on the P.Ws., convicted them and sentenced them as, detailed in the introductory part of this judgment. They preferred appeal before the learned High Court which was dismissed with the only modification that the death sentence of Haji Maula Bakhsh petitioner was reduced to life imprisonment. Hence the instant Jail Petition which is apparently barred by 450 days. Haji Maula Bakhsh petitioner, according to the statement of the learned counsel for the petitioners, has died his natural death in jail on 11-2-1994 and his jail petition has accordingly abated.
4. ' We have heard Ch. Muhammad Akram, Advocate, for the petitioners, and have perused the record of the case with his assistance.
5. ' The prosecution witnesses, namely, Zafar Mahmood complainant P.W. 7 and Fazal Din P.W. 6 have the stamp of injuries on their person and, as such, their presence at the spot at the time of the occurrence cannot be doubted. Allah Ditta petitioner in his statement under section 342, Cr.P.0 as well as under section 340, Cr.P.C. Has admitted that Gul Faqir deceased lost his life during scuffle with him and the P.Ws. Also received injuries during the course of fight between them on the day and time of occurrence close raised the plea of alibi stating that he was not present in the village on the day of occurrence and had accompanied Mst. Fazal Jan to Haripur who intended to institute a suit for dissolution of marriage against Gul Faqir deceased her husband and had engaged Muhammad Ismail Tanoli, Advocate for the . Purpose. He was supported in his version by Muhammad Ismail Tanoli Advocate D.W. 1, Ahmad Khan son of Sher Khan D.W. 3 and Mst. Fazal Jan D.W. 4 widow of Gul Faqir deceased. The moot point for determination before the lower Courts as well as before this Court is whether the version advanced by the prosecution rings true or the defence version of Allah Ditta petitioner as contained in his statement in Court, pleading the right of defence of person and property, more stands to reason. The question whether if at all Allah Ditta petitioner was not entitled to the complete right of private defence of person and property, was he not entitled to the benefit of exceeding the right of private defence and lesser punishment under section 304, P.P.C..
6. ' Leave is granted to consider the aforementioned legal points involved.