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Criminal Petition No. 212 of 1980, decided on 7th November, 1984.

(Against the judgment and order of the Lahore High Court; Lahore, dated 19-3-1980, passed in Criminal Appeal No. 340 of 1979).

---Ss. 302/34 & 304(1)/34--Accused during their statement under S.342, Cr.P.C. admitting having murdered deceased as they had seen him in compromising position with their sister in their house--Accused thus had motive to kill deceased--Plea of accused that deceased was killed by them when he was found in compromising position, held, was not only substantiated by fact that he was killed in their house but also by presence of a very large number (42) injuries on person of deceased which showed that these had been inflicted by assailants .in a fit of violent rage--Alteration of conviction of accused from S.302/34, P.P.C. to S.304(1)/34,P.P.C. and reduction in sentence was, therefore justified in circumstances.

---Art. 185(3)--Penal Code (XLV of 1860), Ss. 302/34 & 304(11/34- Acquittal of accused--Leave to appeal against acquittal--Contentions (i) that eye-witnesses deposing against convicted accused also deposed against acquitted accused and same evidence had been believed qua convicted accused it should also be believed with regard to acquitted accused, (ii) that weapons recovered from acquitted accused also found to be stained with human blood and (iii) that number of injuries found on person if deceased were commensurate with four accused--Though some witnesses had deposed against all accused but only convicted accused had motive to kill deceased and occurrence took place .in house of convicted accursed--Convicted accused had themselves confessed that they alone had killed deceased and acquitted accused had nothing to do with murder--Statement of convicted accused regarding whole occurrence substantiated by facts and circumstances of case--Acquittal of accused, held, was justified in circumstances--Leave to appeal refused.

Ijaz Hussain Batalvi, Advocate Supreme Court, M.A. Zafar and M.A. Rahman, Advocates-on-Record for Petitioner.

Zafar Pasha Ch., Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents Nos. l to 4.

Kh. Shaukat Ali, Advocate Supreme Court and Sh. Ijaz Ali, Advocate-on-Record (absent) for the State.

Date of hearing: 7th November, 1984.

Fazal Ahmad complainant seeks leave to appeal against the judgment of the High Court, dated 19-3-1980, acquitting Munir Ahmad and Nasir Ahmad, respondents 3 and 4, respec tively, and altering the conviction of Muhammad Javed and Sabir Hussain, respondents 1 and 2, respectively, from sections 302/34, P.P.C. to 304-1/34, P.P.C. and reducing their sentence to that already undergone by them.

2. The four respondents were accused of the murder of Muhammad Munshi (deceased) on 3-4-1975, an hour before the sunset, inside their own Haveli. The matter was reported to Muzammil Hussain, A.S.I. by Fazal Ahmad petitioner (complainant), whom he met on the way to the Police Station and the formal F.I.R. was recorded on the basis of this statement.

3. The prosecution case, briefly, is that Sabir and Javed accused respondent suspected Muhammad Munshi (deceased) of having illicit liaison with their sister Mst. Kaniz. As a result, they and their cousins Nasir Ahmad and Munir Ahmad, respondents Nos. 3 and 4, respectively, nursed a grudge against Muhammad Munshi deceased. On the day and time of occurrence Fazal Ahmad P.W.8 (brother of Muhammad Munshi deceased) was attracted by the noise emanating from the Haveli of the accused. He rushed to the place of occurrence and saw that all the four accused were belabouring Muhammad Munshi, deceased, with knives and Drants. He and other persons who had come to the spot tried to intervene but were threatened with dire consequences by the accused persons. Muhammad Munshi died at the spot and the accused threw his dead body in the street. Thereafter they made good their escape, carrying their respective weapons with them. The matter was, thereafter, reported to the police.

After recording the F.I.R. the Investigating Officer immediately proceeded to the place of occurrence. He collected blood-stained earth from the Haveli of the accused as well as from outside the Haveli. A blood-stained Drant was recovered from Muhammad Javed; blood-stained Chhuri (P.6) was recovered from Sabir Hussain; a revolver was also recovered from him, a blood-stained Chhuri (P.3) was recovered from Munir Ahmad and a blood-stained Drant (P.4) was recovered from Nasir Ahmad accused.

The Serologist subsequently found all the above-mentioned weapons to have been stained with human blood.

4. At the trial the prosecution relied only on the testimony of two eye-witnesses, namely, Fazal Ahmad P.W.8 (brother of the deceased) and Muhammad Sarwar P.W.9 (not related to the deceased). Their testimony was supported by the aforementioned recoveries and the medical evidence which revealed as many as 42 injuries on the dead body of the deceased.

5. During their statement under. section 342, Cr.P.C. Muhammad Javed and Sabir Hussain admitted having murdered Muhammad Munshi as they had seen him in a compromising position with their sister Mst. Kaniz in their own house. They exonerated Munir Ahmad and Nasir Ahmad respondents Nos. 3 and 4, respectively.

6. The learned trial Court, relying on the prosecution evidence, convicted all the four accused under section 302/34, P.P.C. and sentenced each one of them to imprisonment for life and a fine of Rs.5,000 each or in default' of payment of fine to suffer further R.I. for 5 years.

They filed an, appeal before the High Court, which, vide the impugned judgment, acquitted Nasir Ahmad and Munir Ahmad respondents and altered the conviction of Muhammad Javed and Sabir Hussain respondents from 302/34, P.P.C. to that under sections 304-I/34, P.P.C. reducing their sentences from imprisonment for life to that already undergone by each of them (about 5 years). It also reduced the amount of fine from Rs.5,000 to 88.2,000.

Hence the present petition for leave to appeal by the complainant petitioner.

7: The learned counsel for the petitioner argued that two eye witnesses who had deposed against Muhammad Javed and Sabir Hussain respondents had also deposed against Munir Ahmad and Nasir Ahmad. Moreover, the weapons recovered from the two acquitted accused were also found to be stained with human blood. He urged that since the same evidence had been believed qua Muhammad Javed and Sabir Hussain, it should also have been believed with regard to Munir Ahmad and Nasir Ahmad. He submitted further that the number of injuries found on the person of the deceased are commensurate with four accused.

He, therefore, prayed that the acquittal of Munir Ahmad and Nasir Ahmad respondents should be set aside and that the conviction of Muhammad Javed and Sabir Hussain be converted into one under sections 302/34, P.P.C. and their sentence of imprisonment for life be restored.

8. We are not inclined to agree with these submis6ions. No doubt the same eye-witnesses have deposed against all the four accused- respondents but we must take notice of the fact that it is Muhammad Javed and Sabir Hussain who had the motive to commit the murder and it was, in fact, committed in their Haveli. Moreover Muhammad Javed and Sabir Hussain have themselves confessed that they alone had killed Muhammad Munshi (deceased) and that Munir Ahmad and Nasir Ahmad had nothing to do with it. The plea that the deceased was killed by them when he was found in a compromising position is not only sub stantiated by the fact that he was killed in their Haveli but also by the presence of a very large number (42) injuries on the person of the) deceased which goes to show that these had been inflicted by the assailants in a fit of violent rage.

9. In view of the above discussion we feel that the learned High Court rightly acquitted Munir Ahmad and Nasir Ahmad respondents and was also justified in altering the conviction of Muhammad Javed and Sabir Hussain from sections 302/34, P.P.C. to sections 304-I/34, P.P.C. and reducing their sentences. As such we do not think this a fit case for grant of leave. The petition is, therefore, dismissed.

M. Z . M . Petition dismissed.

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