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Petitioner: MUHAMMAD ARSHAD VS Respondent: QASIM ALI SHAH
1988 S C M R 1150
1988 S C M R 1150
Present: Muhammad Haleem, C.J., Nasim Hasan Shah and Shafiur Rahman, JJ
MUHAMMAD ARSHAD‑‑Petitioner versus QASIM ALI SHAH and others‑‑Respondents
Criminal Petition Nos.92‑R., 84‑R and 268 of 1987, decided on 16th April, 1988.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 16‑5‑1987, in Criminal Appeal No.20 of 1985).
(a) Penal Code (XLV of 1860)‑‑
‑‑‑S.302/307/149/148‑‑Constitution of Pakistan (1973), Art.185(3)‑ Leave to appeal granted to examine question whether after believing eye‑witnesses, the occurrence, and truthfulness of account thereof and after believing presence of accused at time of .occurrence High Court was justified in acquitting him on the ground that he was an old man and the Court was sceptical if he had really inflicted any injury to deceased.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑S. 302/307/149/148‑‑Constitution of Pakistan (1973), Art.185(3)‑. Leave to appeal granted to examine question whether High Court altered sentence of death of accused to imprisonment for life on a weak ground as would appear from observations made by High Court to the effect that "undoubtedly accused had injured prosecution witness and killed deceased by firing them with a gun but since he was motivated to commit crime with a sense of vindicating his family honour", therefore, it was a case of lesser penalty‑ ‑Bailable warrants issued against acquitted accused and accused undergoing sentence were ordered not to be released on the expiry of their sentence or otherwise pending the hearing of the appeal.
(c) Penal Code (XLV of 1860)‑‑
‑‑‑S.302/307/149/148‑‑Constitution of Pakistan (1973), Art.185(3)‑ Leave to appeal granted to consider contention that Ss.149 and 148, Penal Code, could still be applied if there was a fifth accused and identity of that fifth accused could not be fixed with certainty.
(d) Penal Code (XLV of 1860)‑‑
‑‑‑Ss.302, 307, 149 & 143‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal against conviction granted to re‑appraise evidence and examine question whether there was misreading of evidence and inferences were drawn which could not be drawn with regard to occurrence and complicity of convicts.
Ijaz Hussain Batalvi, Senior Advocate Supreme Court, M.A. Zafar, Advocate Supreme Court and Manzoor Elahi, Advocate‑on‑Record for Petitioner (in Criminal Petition No.92‑R of 1987).
Nemo for Respondents (in Criminal Petition No.92‑R of 1987).
Muhammad Nawaz Abbasi, A.‑A.G., Punjab and Rao Muhammad Yusuf Khan. Advocate‑on‑Record for Petitioners (in Criminal Petition No.94‑R of 1987).
Nemo for Respondents (in Criminal Petition No.94‑R of 1987).
Yusuf Ali Khan, Bar‑at‑Law, Advocate Supreme Court and Sh. Inayat Hussain, Advocate‑on‑Record (absent) for Petitioners (in Criminal Petition No.268 of 1987).
Nemo for Respondent (in Criminal Petition No.268 of 1987).
Date of hearing 16th April. 191.8.
ORDER
SHAFIUR RAHMAN, J.‑‑Three separate petitions have been filed seeking leave to appeal against the judgment of the Lahore High Court, dated 16th of May, 1987, whereby certain modifications were made in the conviction and sentence of other convicts and Qasim Ali, one of the respondents convicted by the trial Court, was acquitted of the charges under sections 302/307/149/148, P.P.C.
2. In an occurrence on the 28th of June, 1981, at 10‑00 a.m. Police Station Pattoki, Muhammad Sharif Tahir died of fire‑arm injuries, incised and stabbed wounds while his brother Muhammad Hanif Tahir (P.W.5) survived the fire‑arm injury and an abrasion that was found on his person. Earlier the murder of one Abdul Rashid had taken place for which Muhammad Tufail and the other accused suspected the deceased and the injured. They were being tried and were on bail at that particular stage. At about 8‑45 a.m., on '48th June, 1981 Muhammad Hanif Tahir was sitting in the company of Murad Ali (P.W.4) and others when Muhammad Tufail armed with a shot‑gun and the others without any visible weapon shouted "Lalkaras" from roof‑top and Muhammad Tufail fired the gun at him. Muhammad Amin, respondent, threw a stone causing injury to him on the head. Muhammad Hanif Tahir was able to pull himself out after receiving the gunshot injury and an abrasion caused by the stone thrown at him. The accused thereafter, it appears, proceeded to the field, at a distance of about a mile from there and while Muhammad Sharif Tahir was resting under a mulberry tree at about 9‑30 a.m., or so, opened attack on him. Muhammad Aslam, Qasim Ali, Muhammad Anwar and Muhammad Amin delivered dagger blows Muhammad Tufail fired at him. The report of the occurrence was lodged by Muhammad Arshad (P.W.12) at 10‑45 a.m. The case was investigated by Muhammad Zafar S.I. (P.W.16). Muhammad Tufail, accused, could be arrested on 23‑1‑1982, Qasim Ali on 21‑10‑1981 and the others on 15‑7‑1981.
3. The accused denied their participation in the occurrence or recoveries of the weapons from them. They also took up the plea that they had not absconded at all. It was pleaded by them that they had been charged on suspicion alone and on account of the enmity that existed between the parties. The trial Court after examining the entire evidence believed the prosecution case, convicted and sentenced all the five accused under section 302/307/149/148, P.P.C. Muhammad Tufail alone was sentenced to death, all others to life imprisonment. All of them were also convicted and sentenced under section 307/149, P.P.C. to 4 years' R.I., and a fine of Rs.500 each, for the offence under section 148, P.P. C. they were all sentenced to 2 years' R.I., each. The sentences of imprisonment were ordered to run concurrently.
4. The High Court by the impugned judgment altered the death sentence of Muhammad Tufail into life imprisonment acquitted Qasim Ali of the offences and acquitted all others of the offences under sections 148 and 149, P.P.C. Muhammad Tufail alone was convicted of the offence under section 307, P.P. C. for injury of Muhammad Hanif Tahir. The fine imposed was enhanced to Rs.20,000 each.
5. Mr. Ijaz Hussain Batalvi, Advocate for the complainant in Criminal Petition No.92‑R of 1987, challenges the acquittal of Qasiml Ali, the conversion of death sentence into life imprisonment in case of Muhammad Tufail and the acquittal of all others on the charges under sections 307, 149 and 148, P.P.C. The contention of the learned' counsel is that after believing the eye‑witnesses, after believing the occurrence and the truthfulness of the account thereof, the High' Court proceeded to acquit him on a ground which, according to the learned counsel, appears to be untenable and which in the words of, the judgment is as follows:‑
"Although we have held that he was present at the time of occurrence, yet, due to his old age, we are sceptical if he really inflicted any injury to the deceased, therefore, by way of abundant caution, giving him benefit of doubt, we would' acquit him. Number of accused so having been reduced to four, conviction and sentence of the appellants under section 148, P.P. C. is set aside. Consequently, conviction of the appellants other than that of Qasim Ali is upheld under section 302/34, P.P.C."
Similarly, according to the learned counsel, the ground given in the judgment for converting the sentence of death into life imprisonment is also weak as will appear from the observation of the Court in the following words:‑
"No doubt that Muhammad Tufail, appellant, injured Muhammad Hanif Tahir (P.W.5) and killed Muhammad Sharif Tahir (deceased) by firing at them with a gun but since he was motivated to commit the crime with sense of vindicating his family honour, therefore, it appears to us as a case of Jesse penalty. "
The learned counsel considers that sections 149 and 148, P.P. C. could still be applied if there was a fifth accused and the identity off that fifth accused could not be fixed with certainty. 6. The convicts also seek leave to appeal (Criminal Petition No.26 of 1987) against their conviction and sentence and Mr. Yusuf Ali Khan, Advocate, has contended on their behalf that there is misreading of the evidence and inferences drawn which could not be drawn with regard to the occurrence and the complicity of the convicts. According to him, it was a clear case of acquittal of the convicts.
7. Mr. Muhammad Nawaz Abbasi, the learned Assistant Advocate- General appearing for the State, has also challenged (Criminal Petition No.94‑R of 1987) the clean acquittal of Qasim Ali and the acquittal of others except Muhammad Tufail for the offence under section 307, P.P.C. and of the conversion of the sentence of Muhammad Tufail from death to life imprisonment.
8. After hearing the learned counsel we consider it appropriate6to grant leave in all the three matters so that the entire evidence is reappraised. Bailable warrants shall issue in the sum of Rs.25,000 with two sureties in the like amount each to the satisfaction of District Magistrate, Kasur, for Qasim Ali. The other convicts undergoing their sentence shall not be released on the expiry of their sentence or otherwise, pending the hearing of this appeal.
M.Y.H./M‑433/S Leave to appeal granted.