' MAMOON KAZI, J.---This petition, for leave to appeal, is directed against the judgment of the High Court of Sindh dated 30-10-1997, whereby conviction and sentence awarded to petitioner Ayoub Masih and Selvester Masih by the VIII-Additional Sessions Judge, Karachi East, have been maintained. Both the petitioners were found guilty under section 302/34, P.P.C. For causing death of one Inayat Masih and each one of them was sentenced to suffer imprisonment for life and to pay a fine of Rs,25,000 and in default of the payment of fine, to suffer further imprisonment for 3 years.
Each of the petitioners was further ordered to pay an equal amount as compensation to the legal heirs of the deceased.
2. The case of the prosecution' against the petitioners was that on 24-3-1990, sister-in-law of Ayub Masih had exchanged unpleasant words with Shahid Masih, the complainant. In the evening at about 8-30 p.m. When Shahid Masih was present in his house alongwith deceased Inayat Masih, his uncle, Ayub Masih and his brother, Selvester Masih came and knocked on his door. When he went outside, Selvester Masih who was armed with a Danda started abusing him and then he gave a Danda blow on his head with the result that Shahid Masih started bleeding. However, thereafter both the petitioners left the scene of occurrence. In the meanwhile deceased Inayat Masih came out of the house and when he was told about the incident, he took complainant Shahid Masih to petitioner Ayoub Masih's house for a patch-up between the two. As soon as they reached Ayub Masih's house he brought a Churn while petitioner Selvester brought a Danda. Ayoub Masih then gave a Churn blow to Inayat Masih who was hit on the right side of his chest. Petitioner Selvester Masih gave a Danda blow on his head. As a result of the injuries received by Inayat Masih, he fell down on the ground. The incident was witnessed by Iqbal, Sadiq, Wilayat Masih and many other Mohallah people. During the incident Dilawar Masih also got injured. Iqbal and other Mohallah people then took Inayat Masih to hospital where a case under section 307/34, P.P.C. Was registered, vide FIJI. Dated 25-6-1990. However, Inayat Masih died at about 00-45 hours and thereafter the case was registered under section 302/34, P.P.C. The petitioners were then arrested. Statement of Shahid Masih was recorded by the police on 25-3-1990 'at 00-15 hours.
3. The case was investigated by Sub-Inspector Wahab Noor. He prepared Memo. Of Wardat Exh.8 in presence of Mashirs Shahid and Ashiq Masih. He also recovered the knife from the accused under a Memo. Of recovery Exh.10 in presence of the same Mashirs. He also prepared an inquest report Exh.13 and recorded the statements of the witnesses. He also got a statement of Iqbal Masih recorded under section 164, Cr.P.C. The body of the deceased was also sent for post-mortem and he also sent the knife recovered from Ayoub Masih to Chemical Examiner for his report. The final charge-sheet was submitted by P.W.5, Sub-Inspector Abdul Jabbar.
4. Dr. Nasim Ismail (P.W.6), who conducted the post-mortem on the body of the deceased found the following injuries:--
(1) Incised wound just above the nipple of the right side of the chest measuring about 1" x 1/4" suspected to be cavity deep,
(2) Lacerated wound on the back of the head measuring 2" x 1/2" bone deep,
(3) A deep cut on the right lung which had passed through the length of the lung up to its base.
' In the opinion of the doctor, death had occurred on account of haemorrhage and shock resulting from the stab wound on the chest which had been caused by a sharp-cutting weapon.
5. The medical evidence was further supported by the ocular evidence of witnesses, P.Ws. Shahid Masih, Walayat Masih and Iqbal Masih. Their evidence was further corroborated by recovery of Churri from the possession of petitioner Ayub Masih in presence of witnesses Shahid Masih and Walayat Masih. This evidence was further supported by the report of the Chemical Examiner in whose opinion the shirt, Shalwar and the jacket worn by the deceased at the time of the incident and the Churri were stained with human blood. This evidence was further corroborated by that of motive and presence of injuries on the person of the petitioners.
6. On the basis of the said evidence, the learned trial Court found the petitioners guilty of the offences with which they had been charged and the conviction has been upheld by the High Court.
7. Sardar Muhammad Ishaq, learned counsel for the petitioners has argued that the High Court has failed to appraise the evidence properly as it was a case of sudden fight and not a case of premeditated murder. We, however, find no force in the said contention. The circumstances of the case indicate that as soon as P.W. Shahid Masih and deceased Inayat Masih went to the house of the petitioners for a patch-up between the parties, they were attacked by the petitioners.
Therefore, there is no evidence of any sudden fight between the parties and the case clearly appears to be that of deliberate and premeditated crime.
8. Consequently, as far as the case against petitioner Ayoub Masih, who caused the fatal injury, is concerned, there are no mitigating circumstances and he appears to have been rightly convicted and sentenced by the learned Trial Court. Therefore, leave in his case is refused.
9. So far as the case of the prosecution against petitioner Selvester Masih is concerned, he is only alleged to have been armed with a Danda at the time of occurrence. A question therefore, arises whether he had shared the same common intention to cause death of deceased Inayat Masih C alongwith the co-accused. He has, nevertheless, been convicted of the same offence alongwith Ayoub Masih. Consequently, leave is granted in the case of Selvester Masih to consider, whether his conviction under sections 302/34, P.P.C. And the sentence of life imprisonment was warranted by the circumstances of the case.