' MUHAMMAD BASHIR JEGANGIRI, J.---Muhammad Yousuf (petitioner in Criminal Petition for Special Leave to Appeal No,19-L of 1996), Mohabat Ali and Sultan (petitioners in Criminal Petition for Special Leave to Appeal No,57-L of 1996) were tried alongwith Jehangir, Iqbal and Shahbaz by a learned Judge, Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 at Multan for having formed themselves into an unlawful assembly and in prosecution of the common object of that assembly committed the murders of Said and Zakir on 29-7-1990 at about 6-00 a.m. In Village Thatha Araian Dakhli Tootwala, 4 miles away from Police Station, Noor Shah, District Sahiwal. On conviction under section 302 read with section 149, P.P.C. Muhammad Yousuf, petitioner, was sentenced to imprisonment for life and a fine of Rs,50,000 or in default thereof to undergo further rigorous imprisonment for five years on two counts; Mohabat Ali, petitioner No,1 (in Criminal Petition for Special Leave to Appeal No,57-L of 1996) was sentenced to death with a fine of Rs,50,000 or in default to undergo further rigorous imprisonment for five years on two counts and; Sultan, petitioner No,2, in above petition was also sentenced to imprisonment for life and a fine of Rs,50,000 or in default to undergo further rigorous imprisonment for five years on two counts. Half of the fine, on recovery, was directed to be paid to the legal heirs of both the deceased by way of compensation. Iqbal and Shahbaz, co-accused of the petitioners, were killed in a police encounter, therefore, they were not sent up for trial. The learned trial Judge, however, gave the benefit of doubt to Jehangir co-accused of the petitioners and acquitted him. All the three petitioners seek special leave to appeal against their convictions and sentences.
2. According to the First Information Report lodged by Lal (P.W.8), he was present on 29-7-1990 at 6.00 a.m. In his house when he was attracted to the spot by the report of fire shots. By that time, Kameer (P.W.10), Khan and Shahadat (P.Ws. Not examined) also reached the spot. They saw Muhammad Iqbal and Shahbaz armed with kalashnikovs, Yousuf, petitioner having a rifle while Muhabat Ali and Sultan, petitioners, holding hatchets in their hands and Jehangir empty handed.
The armed accused started firing in the air. Lal, first informant (P.W.8) and others hid themselves behind a wall in view of enmity. In the meantime, Said reached the spot. Iqbal accused (since dead) fired a burst of Kalashnikov hitting his head, which was followed by Shahbaz (since dead) whose kalashnikov burst hit the back and left thigh of Said. Mohabat and Sultan, petitioners, gave repeated blows with their hatchets to Said, as a result of which, inter alia, his neck and left leg were chopped off. Yousuf is alleged to have fired in the air and raised lalkara. After killing Said all the accused went to the house of Lal (P.W.8) and they caught hold of Zakir son of the first informant who had been locked in his room by the women-folk. They broke-open the door, entered the room and brought out Zakir. Iqbal fired a burst of Kalashnikov hitting various parts of his body. Yousuf, petitioner, fired with his rifle hitting the back of Zakir's head and felling him to the ground. Mohabat, petitioner, gave hatchet blows to Zakir as a result of which his neck was cut. Sultan, petitioner, also dealt with hatchet blows on different parts of his body and, in consequence, Zakir died on the spot.
Thereafter, all the accused successfully entered the houses of Bahadar, Jaffar and Khan and after sprinkling kerosene-oil on the house hold articles of their houses, set them on fire. Motive for the twin murder was that four years prior to the present occurrence Atta uncle of the co-accused of the petitioner was murdered wherein Jaffar and his other relatives were challaned and acquitted.
3. Lal first informant (P.W.8) and Kameer (P.W.10) furnished the ocular account of occurrence while the other two P.Ws., namely, Khan and Shahadat were not examined. The medical evidence revealed that the heads of both the deceased were amputated. Zakir deceased received five incised wounds and eleven firearms wounds on various parts of his body. Similarly, Said deceased sustained three incised wounds and six fire-arm wounds on different parts of his body. The Investigating Officer recovered burnt clothes, empty cartridges, burnt pages of the Holy Qur'an and blood-stained earth from two places and sealed them into separate parcels.
4. The petitioners are said to have absconded after the occurrence and were arrested on 10-12- 1990 after they were declared proclaimed offenders. The learned trial Judge after the perusal of the evidence convicted and sentenced the petitioners in above terms. Feeling aggrieved, petitioners filed Criminal Appeal No,365 of 1991 in the Lahore High Court, Lahore. A learned Division Bench in the High Court believed the ocular account of occurrence furnished by Lal (P.W.8) and Kameer (P.W.10) which, according to them, was amply corroborated by medical evidence as well as the recoveries affected at the house of each of the deceased. According to the learned Judges, the two eye- witnesses were put to the test of lengthy cross-examination but nothing could be brought on the record to suggest that they were not present at the spot or that they had falsely implicated the petitioners on account of enmity. They did not entertain the argument that it was a case of substitution or of roping in innocent people. The manner in which the occurrence was committed left no room for the learned Judges for doubt that it could be the job of two or three persons.
Resultantly, the convictions of the two petitioners under sections 302/149, P.P.C. Were upheld. The sentence of death awarded to Mohabat Ali, petitioner, was, however, reduced to imprisonment for life.
5. Mr. Bashir A. Mujahid, learned counsel in support of Criminal Petition for Special Leave to Appeal No,19-L of 1996, contended that the provisions of section 302 read with section 149, P.P.C. Were not attracted to the facts and circumstances of the case; that the petitioner had been declared innocent in the police investigation and had accordingly been placed in column No,2 of the challan; and that the medical evidence contradicted the ocular evidence furnished by the highly interested eye-witnesses, in that, the single fire-arm injury attributed to Muhammad Yousuf, petitioner, at the back of one of the two deceased was not substantiated by medical evidence.
6. Mr. Asghar Ali, learned counsel for the petitioners in Criminal Petition for Second Leave to Appeal No,57-L of 1996, contended that the evidence of two eye-witnesses, namely, Lal (P.W.8) and Kameer (P.W.10), who were respectively father and uncle of the deceased, was highly interested and, therefore, the petitioners could not have been legally convicted and sentenced for the offences for which they were charged. According to him, recovery evidence could not stand the required test of scrutiny in the murder trial, and thus, the case required re-appraisal of evidence in accordance with the principles laid down by this Court for safe administration of justice.
7. We, therefore, grant leave to appeal in both the petitions to re-appraise c the evidence in the light of the contentions raised on behalf of the petitioners as mentioned above.