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Criminal Appeal No. 478 and Murder Reference No. 103 of 1980, decided on 6th June, 1982.

-- S. 302/307/34-Murder-Acquittal of some of accused, held, no excuse for acquittal of rest-Each case to be decided on its own merits after appraisal of evidence.-[Acquittal].

-- S. 302/307/34-Murder-Appraisal of evidence-Eye-witness seriously injured by fire-arm losing his fore-arm and escaping death by inches, held, cannot be expected either to tell lie or to substitute innocent person for real culprit.

- S. 302/307 read with S. 34-Murder-Common intention Accused not alleged to have fired at deceased-Cannot be said to have common intention to kill-Section 34 not applicable Accused individually liable for his own act-Conviction under S. 302 set aside and that under S. 307 maintained reducing fourteen years' sentence to ten years.-[Common Intention].

-- S. 302/307-Murder-Defence not succeeding to bring anything substantial on record so as to create doubt about implication of accused-Eye-witness not stating how many shots fired by accused and where was deceased hit-Co-accused already given benefit of doubt and acquitted by trial Court and not challenged by State Death sentence of accused commuted to life imprisonment in circum stances.]-Sentence].

--- S. 302/307-Murder-Sentence-Death sentence not confirmed and altered to imprisonment for life-Sentence of fine imposed by trial Court not reasonable-Sentence of fine enhanced on acceptance of notice by counsel for accused.-[Sentence].

Sardar Muhammad Latif Khan Khosa for Appellant.

Sh. Naseer-ud-Din for the State.

M. B. Zaman for the Complainant.

Dates of hearing : 5th and 6th June, 1982.

-Yaqoob Khan, his sons Muzaffar Khan and Abdul Sattar Khan, his nephews Hidayatullah and Khalas Khan were tried for the murder of Ataullah and murderous assault on Umer Hayat, by the Sessions Judge, Mianwali. The trial Judge, by judgment dated 5th April, 1980, acquitted Yaqoob Khan, Abdul Sattar and Khalas Khan. Muzaffar Khan and Hidayatullah were convicted under section 302/12. This now leaves us with the question of sentence. The conviction of Ghulam Ali, Muhammad Niwaz and Ahma, appellants, is converted from section 302/149, P. P. C. on three counts to that under section 302/34, P. P. C. on three counts. The sentences as already awarded by the trial Judge, are maintained. Learned counsel for the appellants, during arguments, filed an application on behalf of Ghulam Ali, appellant to show that Shahoo (won over P. W.) had forgiven Ghulam Ali, appellant, with regard to the murder of his daughter, Mst. Hayatan, deceased. We would like to point out that the said application does not show that any compensation was paid by Ghulam Ali, appellant, to the heirs of Mst. Hayatan, deceased. In any case, Ghulam Ali, appellant, committed a heinous crime by not only firing at and killing Muhammad Ali deceased, and his daughter Mst. Mumtaz, deceased, and injuring his wife Mst. Aziz Bibi (won over P. W.) at the residence of Muhammad Ali, deceased, but thereafter carrying his wrath to the house of his father-in-law and there firing at and killing his own wife, Mst. Hayatan, deceased. There are no mitigating circumstances to relieve Ghulam Ali, appellant, from the maximum sentence. Even otherwise, the application submitted on behalf of Shahoo (won over P. W.) does not relieve Gbulam Ali. appellant, from his liability with regard to the murders of Muhammad Ali, deceased, and Mumtaz Bibi, deceased, as their heirs have not compromised the matter with Ghulam Ali appellant. In these circumstances, Ghulam Ali, appellant is liable for the maximum sentence provided under section 302/34, P. P. C. on all the three counts. In these circumstances, we have maintained the sentences of Ghulam Ali, Niwaz and Ahma, appellants, as awarded by the trial Judge on the capital charges of murder on all the three counts. The sentences of death awarded to Ghulam Ali, appellant, on each of the three counts is confirmed. Ghulam Ali, Ahma and Niwaz, appellants, are convicted under sections 325/34, P. P. C. on three counts for causing injuries to Mst. Aziz Bibi, Mst. Fateh Bibi and Mst. Daulan P. W. 13 and we sentence them to two years' R. I. with a fine of Rs. 400 each on each of the three counts or in default thereof to suffer further R. 1. for six months each on each of the three counts. The convictions and sentences of all the appellants under sections 307/149 and 148, P. P. C. are hereby set aside, The sentence awarded to Ahma and Muhammad Niwaz, appellants shall run concurrently. In view of section 382-B, Cr. P. C., the periods of detention undergone by Ahma and Muhammad Niwaz, appellants as under-trial prisoners, shall be treated as periods of detention undergone by them as convicts.

13. For the foregoing reasons, the appeals stand fully accepted qua Riaz, Gulzar alias Gulla, Muhammad Ali and Mumtaz appellants and their convictions and sentences are set aside. They shall be released forthwith, if not required in any other case. Fines, if any recovered from them, shall be refunded to them. The appeals qua Ghulam Ali, Muhammad Nawaz and Ahma, appellants, stand partly accepted in terms of alteration of conviction and reduction in sentences, as stated above. There being no merit in the private revision (Crl. Rev. 912/79) filed by Muhammad Riaz, complainant, the same is dismissed in limine.

M.Y. H. Death sentence confirmed.

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