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Criminal Petitions Nos. 7‑R and 97‑R of 1985, decided on 9th December, 1985.
(On appeal from the judgment and order, dated 25‑11‑1984 passed in M.R. No. 179 of 1983, Criminal Appeal No. 563 of 1983 and Criminal Revision No. 731 of 1983 by the Lahore High Court, Lahore).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860, Ss. 302, 307 & 148‑‑Leave to appeal‑‑Reappraisal of evidence‑‑Convictions and sentences under Ss. 302, 307 & 148, P.P.C.‑‑High Court being of opinion that case was covered by Exception 4 to S. 300, P.P.C., altered convictions to S. 304, Part‑I, reduced sentences and acquitted some of accused persons‑‑Petitions for leave to appeal both against orders of conviction and acquittal‑‑Supreme Court, on examination of reasons given by High Court, taking view that evidence required re‑appraisal‑‑Leave to appeal granted in both petitions‑ ‑Bailable warrants of arrest against those already acquitted were ordered to be issued.
Aftab Farrukh, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record (absent) for Petitioners.
M. Yousaf Khan, Advocate‑on‑Record for A.‑G., Punjab for the State.
Khawaja Sultan Ahmad, Senior Advocate Supreme Court with Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Petitioners.
M. Yousaf Khan, Advocate‑on‑Record, for A.‑G., Punjab for the State.
‑‑This order will dispose of criminal petitions for leave to appeal Nos. 7‑R and 97‑R of 1985. The former impugns the conviction of the petitioners Muhammad Aslam and Amir Sultan son of Dhuman Khan while the latter is directed against the acquittal of Amir Sultan son of Muhammad Zaman and seven others as well as the convicted petitioner namely, Muhammad Aslam son of Fazal Elahi and Amir Sultan son of Dhuman Khan on the charge of murder.
All of them were tried for the murder of Khan Muhammad deceased and for attempted murders of Manzoor Hussain, Muhammad Yasin, Ghulam Haider and Muhammad Ramzan by causing blunt weapon and fire‑arm injuries. The trial Court convicted Muhammad Aslam and Amir Sultan on the substantive charge of murder and sentenced the former to death while the latter to imprisonment for life. Having so convicted them, the trial Court also held them to be guilty under section 148, P.P.C. for rioting and each one of them was sentenced on this count to one year's rigorous imprisonment. Again Muhammad Ashraf, Amir Sultan son of Dhamun Khan, Asghar Ali and Muhammad Ashraf were convicted on the substantive charge of attempted murder and each was sentenced to 10 years' rigorous imprisonment and fine. They were also convicted under section 148, P.P.C. and sentenced to undergo one year's rigorous imprisonment. Sardar Ali, Lal Khan, Allah Dad and Anwar Sultan were vicariously held liable for the attempted murders and convicted under section 307, P.P.C. and each was sentenced to six years' rigorous imprisonment and fine. They were also convicted under section 148, P.P.C. and sentenced to undergo rigorous imprisonment for one year.
On reference and appeal, the High Court held that although tile finding of the trial Court was that it was a sudden fight nonetheless while affirming it, observed that it was a case which was covered by Exception 4 to section 300, P.P.C. and in that case the culpability of each appellant had to be determined in regard to his own role in the transaction. Accordingly, the conviction of Muhammad Aslam was altered to section 304, Part‑I, P. P. C . and a sentence of ten years was substituted, therefore, in addition to fine. As for Amir Sultan, the High Court held that the role imputed to him was not established and giving to him the benefit of doubt, he was acquitted. From amongst the persons convicted for attempted murders of Muhammad Yasin and Ghulam Haider only the conviction of Amir Sultan son of Dhuman Khan under section 307, P.P.C. was maintained, but his sentence was reduced to five years' rigorous imprisonment. The others namely, Muhammad Ashraf, Asghar Ali and Muhammad Ashraf son of Muhammad Khan were acquitted. Lastly, as regards Safdar Ali, Lal Khan, Allah Dad and Anwar Sultan their convictions under section 307, P.P.C. were set aside and they were acquitted. Their convictions under section 148, P.P.C. were also set aside.
Having examined the reasons giver, by the High Court, we are of the view that the evidence requires reappraisal in both the petitions qua the mitigation of offence of murder in regard to petitioner Muhammad Aslam and the acquittal of petitioner Amir Sultan for that offence and for the acquittal of the respondents, except Amir Sultan, in Petition No. 97‑R of 1985 for attempted murders. In this view of the matter, we would grant leave to appeal to the petitioners in both the petitions. Muhammad Aslam is still serving out his sentence. He shall not be released from jail until the appeal is decided. As against respondents 1 to 8 and 10 in Criminal Petition No. 97‑R of 1985, as they are out of jail, bailable warrants to issue against them in the sum of Rs.10,0001 with one surety in the like amount of the satisfaction of Assistant Commissioner, Chichawatni.
M. I. Leave granted.
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