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Criminal Petition No. 23 of 1980, decided on 1st November, 1980.

(On appeal from the judgment and order dated 1-10-1979 of the Lahore High Court in Cr. Appeal No. 1008/77 (M. R. No. 250/77).

-- S. 302-[Murder-case]-Appreciation of evidence-Incident taking place in broad daylight in an inhibited locality witnessed not only by deceased's father but also by at least three other persons-Witnesses satisfactorily explaining their presence at or near spot of occurrence and having no motive to give false evidence-Deceased's father also not having any such motive, alleged dispute allegedly occurring previously being not of such nature as to create any ill-will in his mind-Even petitioner's counsel finding it difficult to assail concurrent finding of Courts below as to veracity of account furnished by eye witnesses - Petitioner, in circumstance, held, rightly convicted. [Evidence-Witness].

----S. 423 read with Penal Code (XLV of 1860), S.302-[Murder case]-Additional evidence-Permission sought in Supreme Court to produce some documents as additional evidence to establish petitioner's contention as to connection of eye-witnesses with person allegedly responsible for manoeuvring prosecution against petitioners -I Documents thus sought to be produced neither produced in trial Court nor any request made in that regard before High Court- Documents even otherwise not establishing such connection-Request for production of additional evidence in circumstances rejected. [Evidence].

S. M. Zafar, Senior Advocate with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Waheeduddin Virk, Senior Advocate with Sh. Abdul Karim, Advocate-on-Record for the Complainant .

Nemo for the State.

Date of hearing : Ist November 1980.

-The two petitioners Liaquat and Khadim Hussain were convicted by the learned Sessions Judge, Sahiwal, for the murder of Yousuf son of Nizam Din (P. W. 13), and each of them was sentenced to death, besides being required to pay fine and compensation in varying amounts. Their convictions and sentences have been confirmed by a Division Bench of the Lahore High Court by its judgment dated the 1st of October, 1979. They seek leave to appeal.

The incident took place at about 3-30 p. m. on the 14th of December, 1975, in Pakpattan town in front of the house of one Muhammad Ismail in Ward No. 11. At that time the deceased was going towards the bazar in the company of his father Nizam Din, when he was confronted by the two petitioners. Liaquat Ali is said to have abused the deceased, and then thrown a challenge that they had come to avenge the insult. He inflicted a dagger blow on the right side of the deceased, and then petitioner Khadim Hussain gave a similar blow on the left side of the abdomen of the deceased. Liaquat Ali then gave still another blow on the left side of the abdomen of the deceased, whereupon the deceased fell down, and expired at the hospital. The incident was witnessed by Shah Ali (P. W. 10), Shamshuddin (P. W. 11). Muhammad Hanif (P. W. 12), besides Nizam Din (P. W. 13).

The F. I. R. was recorded the same day at A the hospital at 5-30 p. m., but the petitioners could not be fond. Liaquat Ali was arrested more than a month later on the 23rd of January, 1976, and Khadim Hussain was arrested a few days later on the 27th of January, 1976. It is said that at the instance of both the petitioners blood-stained daggers were recovered from a graveyard in the town.

The motive for the assault was that 15 days before the present occurrence the deceased had admonished the two petitioners for harassing respectable citizens, whereupon there was a quarrel between the deceased aid the petitioners, followed by a scuffle, during the course of which the deceased gave fist blows to them. This incident was witnessed by Fateh Muhammad (P. W. 7). It is said that the present assault was launched by the petitioners to avenge the insult thus caused to them by the deceased.

The petitioners pleaded not guilty at the trial, and asserted that they had been falsely implicated due to enmity with one Muhammad Shafi, with whom the deceased was employed as a Body Guard. They did not, however, produce any evidence in defence.

Apart from proving the motive for the assault through Fateh Muhammad (P. W. 7), the prosecution placed reliance on the ocular account of the incident as furnished by the witnesses already named; namely, Shah Ali, Shamshuddin, Muhammad Hanif and Nizam Din, besides Medical evidence and the recovery of the blood-stained weapons of offence at the instance of the petitioners. Both the Courts below have not relied upon the recovery of the blood-stained daggers, but they have placed, full reliance on the ocular account furnished by the witnesses just mentioned, and have also found corroboration in the medical evidence. The Courts below have further observed that nothing was brought out during the course of cross-examination as to the nature of the enmity existing between the petitioners and the aforesaid Muhammad Shall ; nor was it brought out as to what was the connection between Muhammad' Shall and the deceased and his father Nizam Din, sc as to persuade Nizam Din and the other witnesses to falsely implicate the present petitioners in a daylight occurrence. On these findings, both the Courts have arrived at concurrent findings as to the guilt of the peti tioners.

Mr. S. M. Zafar, learned counsel for the petitioners, has found it difficult to assail the concurrent findings of the two Courts below as to the veracity of the account furnished by the eye-witnesses, whose presence at the spot could not be doubted, and who had no motive whatsoever to falsely implicate the petitioners. He, however, submits that unfortunately the defence was unable to place on the record certain documents, mostly in the nature of F.I. Rs., showing that some of the witnesses were involved in some criminal cases, which tended to show that they were the partisans of this gentleman Muhammad Shall, who was once an influential Member of the Pakistan Peoples Party. The learned counsel sought permission to produce these documents in this Court as additional evidence so as to establish the contention of the petitioners that witnesses Shah Ali, Shamushuddin and Muhammad Hanif had some connection with Muhammad Shafi,

We find that not only these documents were not produced in the trial Court, but no request was made for additional evidence in the High Court ; and for that reason it would not be possible for us to permit additional evidence to be brought on the record at this late stage. In any case, a perusal of the documents in question shows that they are not at all helpful to the petitioners, for the reason that they do not establish as to what is the connection between Muhammad Shafi and the eye-witnesses in question ; nor do these documents have any bearing on the supposed enmity, which exists between Muhammad Shafi and the two petitioners. These document do not also establish any connection between Muhammad Shafi and the deceased. It, therefore, appears to us that this gentleman Muhammad Shafi has been brought in by the defence merely to create some kind of confusion, as otherwise he seems to have no connection at all with the present incident or the parties thereto.

As already observed, this incident took place in broad daylight, in and inhibited locality, and was witnessed not only by the father of the deceased, but by at least three other persons, who hart satisfactorily explained their presence at or near the spot, and who had do motive whatsoever to give false evidence against the petitioners. Even the father of the deceased had no such motive, as the dispute which had previously occurred between the petitioners and the deceased was not such as to create any ill-will in the mind of the father of the deceased. Considering these features of the evidence relied upon by the prosecution, we are satisfied that the two petitioners have been rightly convicted.

As they acted in a deliberate and cruel manner by inflicting dagger blows on an unarmed person, there were clearly no mitigating circumstances in their favour. Accordingly, they were rightly awarded the extreme penalty -sanctioned by law.

The present petition, accordingly fails and is hereby dismissed.

Petition dismissed.

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