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Criminal Petition for Special Leave to Appeal No. 339 of 19 9, heard on 14th October, 1980.

(On appeal against the judgment. of the Lahore High Court, Lahore dated 8-5-1979 in Cr. Appeal No. 802 of 1977.

-- S. 302/34--[Murder-case]-Appreciation of evidence-No evidence produced to prove Police having uncovered accused's face outside Court room and shown him to identification witnesses-Nor any such proof forthcoming from cross-examination of prosecution witnesses-Contention that time table of railway taken into account by Court being not effective on day of occurrence but relating to time when trial held, lower Court fell in error in appreciating evidence --- Held : Apart from fact of such time table having not revealed any major difference in time court only took probability Of accused 11PV (la changed train at railway station in consideration and such conclusion not affected by looking into one time table or other-Nothing having been pointed out so as to persuade Court to disagree with judgment of High Court, petition for leave to appeal dismissed. (Evidence].

Syed Jamil Hussain Rizvi, Senior Advocate Supreme Court and S. Ali Imam Naqvi, Advocate-on-Record for Petitioners.

Date of hearing : 14th October, 1980,

Muhammad Ashraf and Muhammad Akram were tried under sections 394, 307 and 302 read with section 34 of the P. P. C. for having caused injuries to Abdul Monem P. W. and Dr. Muhammad Salim Bajwa deceased with their fire-arms in an attempt to commit robbery on them and for making a murderous assault upon Monem P. W. and for causing the murder of Salim Bajwa in the furtherance of their common intention on the night between 24th and 25th November, 1976 at about 2-55 a. m. in the Karachi Express between the Railway Stations Dunyapur and Rukanpur in the Multan District. The learned Additional Sessions Judge, Multan, found the accused guilty under section 302/307 read with section 34, P. P. C. and he found that charge under section 394 was not proved. They were consequently convicted under section 302, P. P. C. but while Ashraf who was directly responsible for causing the murder was awarded capital punishment, Muhammad Akram was sentence to life imprisonment and also to pay a fine of Rs. 5,000. They were also convicted under section 307/34 P. P. C. and sentenced to suffer 5 years and 3 years' R. I. respectively and also to pay a fine of Rs. 2,000. Their appeal against their conviction and sentences was dismissed by the Lahore High Court on 8-5-1979. Hence this criminal petition for special leave to appeal.

2. The facts of the case are that on the fateful night when the deceased and his companion were traveling in the train which was passing through Gojrah Railway Station, Ashraf accused knocked at the door of the compart ment which was opened by Monem P. W. He asked for permission to use the lavatory, which was granted. Thereafter he went back. After about 15 minutes there was again a knock at the door and on the door being opened by the same P. W. the two petitioners forcibly entered into the compartment and on resistance being offered by Monem, Muhammad Ashraf fired a shot while Muhammad Akram-pointed his pistol to Mst. Asma Zeba who raised alarm. Salim Bajwa deceased tried to get up and was fired at by Muhammad Ashraf resulting in his death. Mst. Asma pulled the alarm chain and the petitioners made good their escape by jumping out of the train. A search party was organized and the petitioners were apprehended. Pistol P. 9 was recovered from Muhammad Akram with three live cartridges and two empties in it. Dagger P. 7 and pistol P. 8 were recovered from Muhammad Ashraf petitioner.

3. Learned counsel for the petitioners submits before us that the identification parade which had been made one of the basis for conviction was not held in accordance with law in so for as an objection was raised by Muhammad Akram that the Police had uncovered his face outside the Court room when he went to it in Lodhran. The same objection was raised by Ashraf. Such objections are normally raised. No evidence whotsoever was produced to prove it nor was any such proof forthcoming from the cross-examination of the prosecution witnesses.

4. It was submitted that the time table taken into consideration by the Court was not effective on the day when the occurrence took place because it related to the time when the trial was being held. Apart from the fact that the time table does not reveal any major difference in the time, the fact remains that the Court only took into consideration the probability of the accused having changed the train at Sadiq Abad because Shaheen Express had a stoppage at Sadiq Abad before the arrival of the Karachi Express there The conclusion could not be affected by looking into one time table or the other.

5. It was also submitted that it was unbelievable that the accused would sit near the railway line to be apprehended and not make good their escape. We are afraid we do not see eye to eye with the learned counsel on this point. They had gone away from the railway train and were hiding themselves near the railway track. There was nothing unbelievable about it.

6. Nothing has been pointed out to us which could make us disagree with the judgment of the learned High Court. This petition is, therefore, dismissed.

Appeal dismissed.

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