NASIM HASAN SHAH, J.-Seven persons, namely. Muzaffar Khan, Allah Nawaz, Ghulam Muhammad, Sher Khan. Fatah Muhammad, Muhammad Khan and Nawaz Khan were tried by the Additional Sessions Judge, Mianwali, on the charge of having formed an unlawful assembly with the common object of committing the murder of Ahmad Nawaz, his brother Sikandar Nawaz and their father.
Shah Nswa z, and in prosecution of the common object of the said unlawful assembly committed the murder of Ahmad Nawaz and his father Shah Nawaz and made a murderous assauit upon Sikandar Nawaz P. W., in village Chakrala, Tehsil and District Mianwali, at about sunset on 25th July, 1971.
2. According to the prosecution story Sikandar Nawaz P. W. Was present along with his brother Ahmad Nawaz deceased on the lane outside his house. All the accused persons, mentioned above, along with one Mehar khan, armed with guns launched an attack upon Sikandar Nawaz P. W. In the first instance, Sher Khan fired a shot which hit Sikandar Nawaz on his right thigh and felled him, oven. His brother Ahmad Nawaz went inside the house, picked up the unlicensed gun of his father Shah Nawaz and went to the top of the kotha of the house from where he fired on the accused party in self-defence. Mahar Khan, a member of the accused party, war hit in the aforesaid firing from the side of the accused party. Allah Nawaz fired at Ahmad Nawaz and the shot hit him in the belly and to fell down dead. The other accused persons also fired indiscriminately but without doing any further damage. While they were carrying away their injured accomplices Mehar Khan and had brought him inside the lane, Shah Nawaz, father of Ahmad Nawaz, who had gone to visit a neighbor, also came there en hearing the gunshots. However, on seeking the accused he ran towar6s the west. The members of the accused party leaving Mehar Khan, chased Shah Nawaz and one of them Muzaffar Khan, shot him at some distance from his house. Shah Nawaz fall dowel in the Jawar field. The F. I. R was longed by Sikander Nawaz on the same day at Police Station, Chakrala at 8-30 p.m.
3. The motive for tae crime given by the prosecution was that Shah Nawaz deceased had illicit relations with Mat. Bakht Hano wife of Ghulam Muhammad, and on, this account Ghulam Muhammad accused and his companion went to his house where they killed his son Ahmad Nawaz and injured his other son Sikandar Nawaz and, then on finding Shah Nawaz chased him to his death.
4. Since Mahar Khan, belonging to the accused party, who was injured in the incident, also succumbed to his injuries in the course of tie occurrence, a cross-ease was tiled at their instance in which Sikandar Nawaz (P. W. 7) and Yar Muhammad (P. W. 8) and some others were named an accused. The learned Additional Sessions Judge, Mianwali, however, found them to be innocent and' acquitted them. This decision does not appear to have been cba1enged any further.
5. As far as the other case is concerned, the 'learned Additional Sessions Judge, found Allah Nawaz guilty of the murder of Ahmed Nawaz, era Muzafer Khan guilty of the murder of Shah Nawaz and sentenced them to death; under section 302 read with section 34, P. P. C. Sher Khan and Ghulam Muhammad were also convicted under section 302/34, P. P. C. But sentenced to life imprisonment.
All the four were also convicted under section 307/34, P. P. C., and whsle Allah Nawaz, Muzaffar Khan and Ghulam Muhammad were sentenced to four years' R. I. And a tire of Ra. 200 each, Sher Khan was sentenced to seven years' R.I. And a fine of RS. 500 as his shot had hit Sikendar Nawaz P. W. The remaining three accused namely, Nawab Khan, Mohammad Khan, and Fateh Muhammad were acquitted.
6. On appeal and reference to the High Court the learned Judge: found that the accused and the complainant party were inimical towards each other and the eye-witnesses were highly partisan.
The two witnesses produced in connection with the murder of Shah Nawaz deceased, namely, Muhammad Khan son of Yara (P. W. 10) and Muhammad Khan son of Ahmad Khan (P. W. 11) were found to be false and up-worthy of reliance. Consequently, Muzaffar Khan and i5hulam Muhammad, who were convicted is connection with the murder of Shah Nawaz were found not guilty of the charge of h-s murder anti were accordingly acquitted.
7. So far as the Occurrence relating to the death of Ahmad Nawaz deceased is concerned, it was held that Mahar Khan P. W. And Sikandar p. W. Even though partisan witnesses, could be relied upon, especially the latter as he was himself injured and his presence at the spot was established.
According to him Sher Khan had caused him the fire-arm injury and Allah Nawaz had fired at Ahmad Nawaz resulting in his death. No overt act was attributed to the other accused persons except for firing indiscriminately. Accordingly, the conviction of Allah Nawaz under section 302, P,P.
C. Was upheld. However, the convictions and sentences of others under section 3:'2/34, P. P. C. For the murder of Ahmed Nawaz were set aside. The ultimate result was that the conviction and sentences under section 302/34, P, P. C. Passed against Muzaffar Khan, Ghulam Muhammad and Sher Khan were act aside and they were acquitted of the said charge. Although the conviction of Allah Nawaz was maintained, taking into consideration the fact that the father of Allah Nawaz deceased was having an illicit affair with a woman belonging to the accused side he was awarded lesser penalty of life imprisonment. So far as Sher Khan was concerned, he was found to have caused a simple fire-arm injury on a non-evital part of the body of Sikandar P. W. Hence he was acquitted of the charge under section 307/34, P. P. C. And instead convicted under section 324, P. P.
C. And sentenced to two years' R. I.
8. The above-mentioned judgment of the High Court has been questioned by both sides. Allah Nawaz has' challenged his conviction and sentence tinder section 302, P. P. C. By instituting Cr. P. S. L. A. No. 250 of 1975, while Sikandar Nawaz, who was injured in the incident, has challenged it by instituting P. S. L. A. No. 250 of 1975, to question the order of acquittal of Muzaffar Khan and Ghulam Muhammad, the alteration Lf the conviction and sentence of Sher Khan and the imposition of the lesser sentence upon Allah Nawaz.
9. After hearing the learned counsel for the parties in both the petitioner we consider that the conclusions arrived at by the High Court with regard to the evidence on record require re- appraisal. We would accordingly grant leave to appeal in both the cases. Since Ghulam Muhammad is stated to have died meanwhile, non-bailable warrants, returnable to the Assistant Commissioner, Mianwali, to issue against Muzaffar Khan only. However, bailable warrants shall issue against Sher Khrn. Allah Nawaz, who is in custody, will not be released until the disposal of the appeal.