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Criminal Petitions Nos. 81‑R and 309 of 1983, decided on 7th December, 1985.
(On appeal from the judgment, dated 23‑7‑1983 of the Lahore High Court Lahore in Criminal Appeal No. 1384 of 1980 and Criminal Revision No. 66 of 1981).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302 & 323‑‑Leave to appeal‑‑Appreciation of evidence under Ss.302 & 323 P.P.C.‑‑Re‑examination of case de novo by Supreme Court‑‑High Court on appeal, altered conviction to one under S. 304, Part‑I, P.P.C. reduced sentences and acquitted two accused persons‑‑Petitions for leave to appeal both against conviction and acquittals/reduction in sentence‑‑Judgment of High Court found suffering from contradictions and want of proper disposal of various issues arising in case‑‑Matter requiring re‑examination de novo and decision afresh after appreciation of evidence on record----Leave to appeal granted in both petitions‑‑ Bailable warrants of arrest against those already acquitted, were ordered to be issued.
A.K. Brohi, Senior Advocate Supreme Court with M. Bilal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (in Criminal Petition No. 81‑R of 1983) for Petitioner.
Ata Ullah Sajjad, Senior Advocate Supreme Court and Maqbool A. Qadri, Advocate‑on‑Record (absent) (in Criminal Petition No. 309 of 1983) for Petitioner.
Ejaz Ahmad Khan, Advocate‑on‑Record (absent) (in Criminal Petition No. 309 of 1983) for Respondent No. 5.
Nemo for the remaining Respondents (in both petitions).
‑This order will dispose of Criminal Petition No. 81‑R of 1983 and Criminal Petition No. 309 of 1983, as both are directed against one and the same order of the High Court.
The prosecution story is that on 28‑3‑1977 at about 10.30 a.m. Adalat Khan complainant, Allah Ditta deceased, Bostan deceased, Zahur Ahmad and Muhammad Yusuf P.Ws. were present on the roof of the Primary School, Giyal. They were waiting for the mason as the roof of the Verandah of the School needed repairs. In the meantime, Muhammad Sabir Hussain, Sardar Khan, Shaukat and Abdul Malik accused armed with guns, came there through the stairs and opened an attack on the complainant party. Muhammad Sabir fired a shot hitting Allah Ditta deceased on the back. Thereafter, Sardar Khan fired at him hitting him on his chest, upon which he fell down. Thereafter, Sabir Hussain fired a shot hitting Bostan deceased on his back below the left shoulder and he too fell down. Shaukat fired a shot hitting Muhammad Yusuf P.W. on his buttock and he also fell down. Abdul Malik fired at Zahur Ahmad hitting his left leg. Sabir Hussain and Sardar Khan again fired one shot each which did not hit anybody. Thereafter, all the accused came down from the roof through the stairs and went towards their houses raising Lalkaras and firing in the air. Allah Ditta deceased succumbed to his injuries at the spot. Bostan was removed to Civil Hospital, Kharian, in a precarious condition. He also expired on the same day. The occurrence was also witnessed by Abdul Aziz and Amanat P.Ws. (not produced).
According to the F.I.R., the motive for the offence was that four years prior to the occurrence a bomb exploded in the house of Sardar Khan accused causing three deaths, for which Adalat Khan complainant, Allah Ditta deceased, Bostan deceased and four others were challaned. The accused persons, it is alleged, harboured a grudge against the complainant party on that score.
Sabir Hussain, Sardar Khan. Shaukat and Abdul Malik were tried by the Additional Sessions Judge, Gujrat, wno, by his judgment, dated 13‑12‑1980, convicted Sabir Hussain and Sardar Khan under section 302, P.P.C. for causing death q Allah Ditta deceased and awarded death sentence plus a fine of ''M.5,000 each or one year's R.I. default. Sabir Hussain was also convicted under section 302, P.P.C. for causing the death of Bostan deceased and was sentenced to death with a fine of Rs.5,000 or one year's R.I. in default. Shaukat accused was convicted under section 323, P.P.C. for injuring Muhammad Yousuf P.W. 10 and was sentenced to six months' R.I. and a fine of Rs.500 or one month's R.I. in default, while Abdul Malik was acquitted.
On appeal and reference, the High Court allowed the appeal of Sardar and Shaukat accused and acquitted them. Abdul Malik's acquittal was also maintained. However, Sabir Hussain was found guilty under section 304, Part‑I, P.P.C. in respect of the killing of Allah Ditta deceased. His conviction was altered from one under section 302, P.P.C. to one under section 304 (Part‑I), P.P.C. and was sentenced to 10 years' R.I. with a fine of Rs.20,000 or in default three years' R.I. The conviction under section 302, P.P.C. regarding murder of Bostan deceased was maintained but the sentence of death was altered to imprisonment for life plus a fine of Rs.20,000 or three years' R.I. in default. Sentences of imprisonment under section 304 (Part‑I), P.P.C. and under section 302, P.P.C. were ordered to run consecutively.
Sabir Hussain has filed Criminal Petition No. 81‑R of 1983 to challenge his conviction and sentence, whereas Adalat Khan complainant has filed Criminal Petition No. 309 of 1983 challenging the acquittal of Sardar Khan, Shaukat Ali and Abdul Malik and the imposition of lesser sentence on Sabir Hussain.
We have heard Mr. A.K. Brohi in support of Criminal Petition No. 81‑R of 1983, and Mr. Ata Ullah Sajjad in support of Criminal Petition No. 309 of 1983. Both of them criticised the judgment of the High Court and we feel that the said judgment of the High Court suffers from contradictions and does not appear to have properly disposed of the various issues arising in this serious matter. This case, therefore, requires to be re‑examined de novo and decided afresh after appreciation of the evidence on record.
Leave to appeal is granted in both the petitions.
Bailable warrants shall issue against Abdul Malik, Sardar Khan and Shaukat Ali, respondents Nos. 1, 2 and 4 in Criminal Petition No. 309 of 1983, in the sum of Rs.10,000 with one surety each, in each case, to the satisfaction of the A.C., Kharian. Sabir Hussain will not be released until the disposal of the appeals arising out of these petitions.
M. I. Leave granted.
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