' SAAD SAOOD JAN, ACTG. C.J.--The petitioners, Muhammad Irshad and Muhammad Aslam, alongwith Imam Bukhsh, father of Muhammad Irshad, were convicted by the Additional Sessions Judge, Bahawalpur, on charges under sections 302 and 323, read with section 34, Pakistan Penal Code. Together with them one Muhammad Akram was also tried on the same charges but was convicted only in respect of the offence under section 323, ibid. For the offence under section 302, ibid, the petitioners were sentenced to death, in addition to payment of fine and compensation; for the offence under section 323 all the four were sentenced to undergo rigorous imprisonment for a period of one year. All the four convicts filed an appeal before the High Court. The learned Sessions Judge also made a reference for the confirmation of the sentence of death. The High Court acquitted Imam Bukhsh of the charge under section 302, ibid, maintained the convictions of the petitioners but reduced their sentences for imprisonment for life. It also maintained the convictions of the petitioners under section 323, ibid, but reduced the sentences to periods already undergone by them. The petitioners seek leave to appeal from this Court.
2. According to the prosecution, the central figure in the occurrence was Mst. Zahoor Mai (P.W. 9).
She was married to Muhammad Iqbal, brother of Muhammad Irshad petitioner. About four years prior to the occurrence Muhammad Iqbal divorced her. He died shortly thereafter. About two years before the occurrence Mst. Zahoor Mai (P.W. 9) married Mumtaz. This marriage caused resentment in the family of her former husband as in the past some members thereof had been prosecuted for causing the death of Mumtaz's father.
3. According to the prosecution on 8-6-1990, at about 1-30 p.m., the petitioners alongwith Imam Bukhsh and Muhammad Akram came to the house of Mumtaz and tried to drag out Mst. Zahoor Mai. She raised cries which attracted a number of persons including Muhammad Aqil, deceased, his brother Pehlwan (P.W. 8) and brother of Mumtaz, namely, Muhammad Nawaz (P.W. 10) and Muhammad Riaz (P.W. 11). They tried to rescue Mst. Zahoor Mai and in the process a scuffle took place. Muhammad Akram hit Pehlwan (P.W. 8) with a jack on the head and Imam Bukhsh threw a brick on the head of Muhammad Riaz (P.W. 11). The petitioners, Imam Bukhsh and Muhammad Akram then repaired to their home. Shortly afterwards the petitioners armed with guns accompanied by Imam Bakhsh and Muhammad Akram again came to the spot. Muhammad Aslam and Muhammad Irshad fired at and killed Muhammad Aqil, deceased. Muhammad Akram threw brick bats. As a result of the firing and hurling of brick-bats a number of persons were hurt.
The occurrence was reported to ASI Habib Ahmad (P.W. 14) by Pehlwan (P.W. 8) at the spot.
4. The petitioners pleaded not guilty to the charges against them at the trial. They denied that they were responsible for causing the death of the deceased and alleged that they had been falsely implicated. They also denied that they had dragged out Mst. Zahoor Mai from her house or indulged in firing. Their version was that a fight had taken place between Maqbool and Allah Wasaya and during the course of the fight the parties fired at each other.
5. The case of the prosecution against the petitioners was based mainly on the ocular testimony furnished by Pehlwan (P.W. 8), Mst. Zahoor Mai (P.W.9), Muhammad Nawaz (P.W. 10) and Muhammad Riaz (P.W. 11). Admittedly, they were closely related to the deceased. There was enmity between the parties for according to the prosecution itself Imam Bukhsh and others were prosecuted for causing the death of the father of Mumtaz. The trial Court as well as the High Court found their accounts to be substantially true.
6. In support of this petition it is contended that the eye-witnesses were inimical and for that reason their statements should not have been accepted without independent corroboration. Apart from that there is conflict between the medical evidence and the version given by the eye- witnesses. In this context, it is pointed out that the injuries found on the body of the deceased had blackening around. This observation by the doctor was at variance with version of the eye- witnesses for according to them the deceased had been fired at from a considerable distance.
7. The contentions raised in support of this petition need examination. Leave to appeal is granted.