' MUHAMMAD ILYAS, J.---Petitioners, namely, Muhammad Zubair alias Nanna and Muhammad Shafique were convicted by the Special Court No,3, Suppression of Terrorist Activities, Lahore Division, Lahore, under section 307 read with section 34 of the Pakistan Penal Code and sentenced to different terms of imprisonment. They were also directed to pay various amounts of fine.
2. It is alleged that the petitioners made a murderous assault on the complainant, Ahmad Saeed Babar in furtherance of their common intention and the first petitioner caused injuries to him with a Kalashnikov. Petitioners went in appeal before the Lahore High Court to assail the order of their conviction, etc., but the same was dismissed by a Division Bench thereof. Hence this petition for leave to appeal against the judgment of the learned Division Bench.
3. It was contended by learned counsel for the petitioners that the conviction of the petitioners was mainly based on the ocular evidence furnished by two witnesses of the prosecution, namely, Ahmad Saeed Babar (complainant) and Ghulam Sarwar. Admittedly, Ghulam Sarwar is related to the complainant. It was also contended by learned counsel for the petitioners that Ghulam Sarwar lived at a distance of few miles from the place of occurrence and his evidence did not deserve credence because his position was that of a chance witness. As for Ahmed Saeed Babar, it was submitted by the learned counsel that a cross-case had also been filed by Muhammad Shafique petitioner, in the form of a complaint, in which Ahmad Saeed Babar was one of the accused persons. A copy of complaint is in the connected Crl.PSLA No,499/L/1995. Muhammad Shafique petitioner, who is complainant in the cross-case, had also been injured in the incident. It was stressed by the learned counsel that there was not adequate corroboration of the ocular account and, therefore, the conviction of the petitioners was not sustainable.
4. As indicated above, relationship of Ghulam Sarwar with the complainant is not denied. It is not refuted that Ghulam Sarwar does not live at the place of occurrence. Further, it is the prosecution's own case that Muhammad Shafique petitioner was also injured in the incident although the prosecution attributed this injury to the other petitioner. According to the learned counsel, however, the said injury was caused by Muhammad Akram, who was also an accused in the complaint case.
5. Leave is, therefore, granted to consider the question as to which of the two sides was the aggressor and whether the aggressed party had exceeded its right of self-defence. It also deserves to be examined whether the ocular evidence needs corroboration; and if so, whether there is requisite corroboration A thereof to sustain the conviction of the petitioner. Further, it would be appropriate to look into the question of quantum of sentences keeping in view the answer to the first question.
6. Accordingly, the instant petition for leave to appeal is accepted and the petitioners are allowed to appeal against the impugned judgment of the High Court.