MUHAMMAD ISHAQ and another vs THE STATE

ORDER

' ABDUL HAMEED DOGAR, J.---Through this common order, we propose to dispose of the above two petitions which are directed against two separate judgments dated 23-10-2001 passed by the Lahore High Court in Criminal Appeals. Nos.422 and 423 of 1994 whereby the same were dismissed and the conviction and sentence recorded by the trial Court were maintained. The petitioners seek leave to appeal.

2. Brief facts of the case are that on 15-6-1992 at about 5-30 a.m. Complainant Sher Muhammad alongwith his nephew/son-in-law Maulana Mukhtar Ahmad Sial, Lal Khan and Muhammad Safdar were sitting outside the house of Maulana Mukhtar Ahmad Sial when two persons riding a motorcycle without number plates armed with kalashnikovs, whose names later on transpired as Muhammad Ishaq and Liaqat Hussain (petitioners herein), came there. Both of them alighted from the motorcycle and simultaneously started firing at Maulana Mukhtar Ahmad Sial hitting him on his head, both ears, below left eye and chest, who died at the spot. After hearing the firing people from the surroundings which included men, women and children came out and they tried to catch hold of them. Petitioners threw hand-grenades upon those people and due to which Muhammad Afzal, Muhammad Safdar, Waris, Qaisar, Baqir, Iqbal, Muhammad Yousaf, Abdul Shakoor, Nasir, Mst.

Haleema Bibi, Mst. Fatima, Mst. Firdous and Mst. Ruqqiya were injured. Due to pelting of stones by the people the petitioners also fell down and were apprehended alongwith the fire-arms and motorcycle. The motive for the occurrence, as alleged, was that Maulana Mukhtar Ahmad Sial used to project the lives of Sahaba-e-Karaam and also used to say that he would reply Shias for raising any slogans against Sahaba-e-Karaam and allegedly due to this, Shias were grieved. Injured Muhammad Afzal was medically examined and his statement was recorded by the police. He died on the next day.

3. At the trial, the prosecution in order to prove its case produced as many as .18 witnesses and tendered in evidence the medical reports and the reports of the Chemical Examiner and the Serologist. Statements of the accused were recorded under section 342, Cr.P.C. In which they claimed innocence. After conclusion of the trial, the learned Judge, Punjab Special Court, Suppression of Terrorist Activities, Faisalabad-Sargodha Divisions, at Faisalabad, vide judgment dated 7-8-1994, convicted the petitioners under sections 302/34, P.P.C. And sentenced both of them to death with a fine of Rs,one lac each on two counts or in default of payment of fine to undergo R.I. For one year each. They were also convicted under section 324/34,. P.P.C. And sentenced to five years' R.I. Each. The same learned Judge, through separate judgment dated 7-8- 1994, convicted both the petitioners under section 3 of the Explosive Substances Act, 1908, and sentenced them to life imprisonment each. He also convicted them under section 5 of the same Act and sentenced them to undergo ten years R.I. Each. Both the sentences were ordered to run concurrently and property of both the petitioners was also forfeited.

4. The petitioners filed two criminal appeals challenging their conviction and sentence before 4he Lahore High Court, which were dismissed and the death sentence awarded to the petitioners was confirmed. Hence these petitions.

5. We have heard Mian Aftab Farrukh, learned Advocate Supreme Court for the petitioners and Mr. M. Zaman Bhatti, learned Advocate Supreme Court appearing on behalf of the State and have gone through the record and proceedings of the matter in minute particulars.

6. The learned counsel for the petitioners has contended that petitioner Muhammad Ishaq alias Saqi Shah was minor at the time of the incident and certificates in that respect were placed on record before the learned Lahore High Court but the same were not considered. According to him, the petitioner Muhammad Ishaq alias Saqi Shah being minor his confessional statement was not recorded in accordance with law. According to him, the golden principle of law that the burden to prove the case lies upon the prosecution has been violated in this case by the learned Lahore High Court which while disposing of the appeal first of all took up the defence version of the petitioners and after rejecting it discussed the case of the prosecution: Learned counsel further contended that the Courts below have failed to appraise and appreciate the evidence while convicting the petitioners on the same set of evidence on which co-accused, namely, Sarfraz alias Tani, Abdul Ghafoor and Syed Sana-ul-Haq Tirmzi were acquitted.

7. On the other side, learned counsel for the State vehemently controverted the above contentions of the petitioners' counsel and argued that the learned trial Court as well as the learned Division Bench of the Lahore High Court have discussed every aspect of the case with minute particulars against the petitioners and after appraising the evidence have rightly convicted and sentenced the petitioners.

8. We grant leave to appeal in both the petitions to appraise the entire evidence and to see whether both the Courts below have followed the law laid down by this Court for the safe administration of criminal justice.