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Criminal Petitions for Leave to Appeal: Nos. 27‑R and 137 of 1983, decided on 21st March, 1984.

(On appeal from the same judgment and order of Multan Bench of the Lahore High Court, passed in Criminal Appeal 24/1981 and Murder Reference 24 of 1982).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302/34 & 323/34‑‑Appeal against reduction in sentence/acquittal‑‑No mitigating circumstance‑ Accused himself admitting participation in fight and using knife to cause injuries with plea of self‑defence‑‑Benefit of doubt given by High Court assailed‑‑Leave granted to consider whether penalty of death given by trial Court to two accused‑persons and acquittal of third by High Court was legally correct‑‑Evidence on record needs reappraisal.

Zarin Shah and 2 others v . The State 1974 S C M R 376 ref.

‑‑‑Art. 185(3),‑Penal Code (XLV of 1860), S. 302/34‑‑Conviction maintained but sentences reduced from death to life imprisonment‑ Injuries sustained by accused not explained by prosecution‑‑Plea of self‑defence not suffering from suspicion‑‑Only independent witness named in F.I.R. given up by prosecution‑‑Leave to appeal granted to consider whether sentences awarded to accused persons are sustainable in view of evidence on record and plea taken by accused at trial.

A. Shakoor, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemat Khan, Senior Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents Nos. 1 to 3.

Ghulam Ahmad, Advocate Supreme Court for the State.

Nemat Khan, Senior Advocate Supreme Court with Wajid Hussain, Advocate‑on‑Record (absent) for Petitioners..

Ghulam Ahmad, Advocate Supreme Court for the State.

Date of hearing: 21st March, 1984.

This order will dispose of both the abovementioned criminal petitions for leave to appeal which are directed against the same judgment and order dated 15‑2‑1983 passed by the Multan Bench of the Lahore High Court in Criminal Appeal No. 24 of 1981 and Murder Reference No. 24 of 1982.

2. Zulfiqar son of Ghulam Muhammad, Shabbir son of Karam Din and Allah Ditta son of Mehar Muhammad were tried by the learned Sessions Judge, Multan for committing the murder of Muhammad Nawaz. Zulfiqar and Allah Ditta accused were convicted under section 302/34, P.P.C. and were sentenced to death and a fine of Rs. 5,000 each or in default, to undergo R.I. for one year each while Ghulam Shabbir was sentenced to life imprisonment and a fine of Rs. 5,000 or in default, to suffer further R.I. for one year. All the three accused were also convicted under section 323/34, P.P.C. and were sentenced to six months' R.I. each for causing injury to Allah Ditta son of Ali Muhammad P.W. 9 vide judgment, dated 26‑1‑1981. On appeal, the learned High Court Judges, per judgment, dated 15‑2‑1983, maintained the conviction of Zulfiqar and Allah Ditta under section 302/34, P.P.C. but reduced their sentence from death to life imprisonment while Shabbir was acquitted.

3. In Cr. P.L.A. No. 27‑R/1983 leave is sought on the grounds that there existed no reason which could be used as mitigating circumstance for reducing the sentence of Zulfiqar and Allah Ditta accused /respondents; that no question of honour was involved because neither the father nor the brothers of Mst. Maryam Bibi nor her husband participated in the fight and, therefore, it could be said that it was not a case which involved family honour.

4. According to the prosecution on 12‑12‑1978 at about 8 a.m. in the field situate in Chak No. 89/15‑L.P.S. Mian Channu, Tehsil Khanewal, District Multan, deceased Muhammad Nawaz; petitioner Nusrat P.W. 3 and Allah Ditta P.W. 9 were present in Kills No. 11 of Square No. 48 which was owned by petitioner Nusrat when all the three accused/ respondents appeared. Allah Ditta was armed with a Chhuri and Zulfiqar had a hockey in his hand while Shabbir was empty‑handed. Zulfiqar is alleged to have raised Lalkara saying 'that they would teach a lesson to Muhammad Nawaz deceased for having illicit relations with Mst. Maryam. On hearing this, Muhammad Nawaz ran away out of fear followed by the accused /respondents who encircled Nawaz, Shabbir is said to have caught hold bf Muhammad Nawaz deceased while Zulfiqar gave a hockey blow which hit the deceased on the right side of his forehead; thereafter Allah Ditta gave a Chhuri blow on the right side of the chest of the deceased. Allah Ditta P.W. 9 tried to intervene and save Muhammad Nawaz deceased but accused/ respondent Zulfiqar gave a hockey blow on his head. The deceased fell down and died instantaneously and the accused, having accomplished their design, ran away.

5. Report was recorded by Muhammad Shafi S.I. (P.W. 12) at the instance of Nusrat P.W. (the present petitioner). The Investigating Officer visited the spot and took various articles into possession. He arrested Zulfiqar and Shabbir the same day and recovered hockey P.3 at the instance of Zulfiqar. Allah Ditta accused /respondent was arrested on 13‑12‑1978 and he led the police to the recovery of Chhuri P.2 which was found to be stained with human blood by the Chemical Examiner and the Serologist confirmed the stains on the Chhuri to be of human origin.

6. Dr. Shaukat Kanwal P.W. 1 performed the post‑mortem examination on the dead body of Muhammad Nawaz on 13‑12‑1978 and found two injuries one of which was, in his opinion, sufficient to cause the death of the deceased in the ordinary course of nature. Allah Ditta was also examined and found to have suffered a simple injury. The same doctor also examined Zulfiqar accused who has also sustained injuries and the doctor found a lacerated wound and a vertical bruise on Zulfiqar accused.

7. Contention of the learned counsel is that the acquittal of Shabbir accused is not justified inasmuch as section 34, P.P.C. is fully applicable to his case; he took part in the fight and admitted his participation in the fight in his statement recorded under section 342, Cr.P.C. The other accused /respondents also while taking the plea of self‑defence, stated that Shabbir accused was armed with a pen‑knife and that he used it for causing injuries to the deceased. Shabbir also admitted having used his pen‑knife. In view of this, it cannot be said that his participation in the fight was doubtful, and, therefore, the benefit of doubt given to him by the learned High Court is not legally correct; that the law laid down in the case of Zarin Shah and 2 others v. The State reported in 1974 S C M R 376 is not applicable to the present case as the facts and circumstances of that case were quite different from the facts of the present case. In that case the accused Zarin Shah had not admitted his participation whereas in the present case Shabbir accused himself admitted his participation in the fight and lastly it was urged that it was not a case where family honour was involved.

8. It may be mentioned here that motive for the crime stated by the prosecution is that the respondents suspected Muhammad Nawaz deceased of having illicit relations with Mst. Mariam a cousin of accused /respondents and the contention is that neither the father nor the brother or husband of Mst. Mariam came to retrieve the family honour which goes to prove that it was not a case involving family honour and as such there existed no mitigating circumstance in favour of the accused /respondents for reducing their sentence.

9. We have considered the contentions raised by the learned counsel and grant leave to consider whether the penalty of death given by the learned trial Court to the two accused/ respondents and acquittal of Shabbir by the learned High Court was legally correct. The evidence on record needs re‑appraisal.

10. Criminal Petition for leave to Appeal No. 137/1983 had been filed by Zulfiqar and Allah Ditta against their conviction and sentence by the trial Court and against the judgment of the learned High Court whereby their conviction was maintained but their sentence was reduced from death to imprisonment for life.

11 Learned counsel contended that the injuries sustained by the accused /petitioners have not been explained by the prosecution and their plea that they had injured the deceased in their self‑defence should have been accepted. It has also not been shown as to how Zulfiqar accused sustained injury on the left arm resulting in fracture of bone; and lastly it was contended that the plea of self‑defence taken by the accused /petitioners rings true and does not suffer from any suspicion in view of the facts of the case and that the only independent witness in the case, namely, Farid was given up by the prosecution whose presence was mentioned in the F.I.R. by the complainant.

12. Points raised by the learned counsel need consideration. We grant leave to consider whether the sentences awarded to the petitioners are sustainable in view of the evidence on record and the plea taken by the accused at the trial. Zulfiqar accused /petitioner had stated that he was going to the shop when the deceased, his brother Haq Nawaz and cousin Yousuf, armed with Dangs attacked him and his co‑accused and Allah Ditta the accused/ petitioner used a Soti in self‑defence whereas Shabbir used his pen‑knife and 'they acted in the exercise of their right of private defence and we find that similar are the statements of Allah Ditta accused and Shabbir the acquitted accused.

M.I. Leave granted.

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