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Criminal Petition No. 422 of 1982 and Criminal Petition No. I‑R of 1983, decided on 8th May, 1 984.

(On appeal from the Judgment and Order dated 15‑11‑1982 of the Lahore High Court, Lahore, passed in Criminal Revision No. 938/1980 and Criminal Appeal No. 570 of 1986‑Murder Reference No. 147 of 1980).

---S. 302/34‑Criminal Procedure Code (V of 1898), S. 417‑Murder Appreciation of evidence‑Appeal against acquittal‑Broad daylight incident occurred in a lane near a shop‑Prosecution witnesses could not, therefore, substitute accused for real culprit‑Presence of acquitted accused also not doubted although he was not said to have shared common intention‑Acquittal of accused therefore, could not be said to be on basis of false implication in circumstances.‑[Appeal against acquittal].

‑‑ S. 302/34‑Murder‑Reduction of sentence by High Court‑Bicycle of deceased while on road struck niece of accused‑Girl complained to accused about deliberate act 6f deceased which prompted accused to avenge grievance and accused killed deceased‑High Court taking notice of incident and reduced death sentence passed by trial Court to life imprisonment‑Supreme Court, held, reduction of sentence on ground of said incident to be justified.‑[Sentence].

S. M. Zafar, Senior Advocate Supreme Court, and Salim Ahmad Malik, Advocate‑on‑Record for Petitioner (in Cr. Petition No. 422 of 1982).

Ijaz Hussain Batalvi, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2 (in Cr. Petition No. 422 of 1982).

Karam Elahee Bhatti, Advocate for A.‑G. Punjab for Respondents No. 3 (in Cr. Petition No. 422 of 1982).

Ijaz Hussain Batalvi, Senior Advocate assisted. by M. A. Zafar, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Cr. Petition No. 1‑R of 1983).

Nemo for Respondents (in Cr. Petition No. 1‑R of 1983).

Date of hearing : 8th May, 1984.

‑This order will dispose of criminal petitions Nos. 422 of 1982 and 1‑R of 1983. The former seeks reversal of acquittal of Zubair Farooq and for the enhancement of sentence substituted by rite High Court while dismissing the appeal of Khaliq Dad, the petitioner in petition No. 1‑R of 1963, while the latter is directed against his conviction by Khaliq Dad.

At about' 4:00 p.m. on 17th of August, 1977, deceased Abdul Salam resident of Golra Sharif was proceeding on his bicycle alongwith Aminuddin when on the way his bicycle struck a niece of Khaliq Dad who was returning on foot alongwith two other girls, upon which she hurled abuses at him, but the matter was patched up by Karamdadtext-align:justify; font-family:Arial, Helvetica, sans-serif;text-indent:.3in;theless the girl complained to Khaliq Dad about this deliberate act of the deceased, who at about 5.00 p.m. the same day alongwith his son Zubair Farooq armed with a pistol and a rifle respectively attacked the deceased in a lane near the shop of Haji Khuda Bakhsh. It was said that the shot fired by Zubair Farooq went a miss as the deceased ducked, but Khaliq Dad went near him and fired his pistol from a close range causing a firearm injury on his neck to which he succumbed before reaching the hospital.

The report of the incident was lodged at 7‑00 p.m. at Police Station Golra by Abdul Razzaq, the father of the deceased wherein he named himself, Haji Khuda Bakhsh, a shopkeeper, Shah Zaman and Karam Dad as eye witnesses. Although a licensed rifle and a revolver were secured at the behest of Khaliq Dad yet they were not established to be the crime‑weapons.

The trial Court accepted the ocular testimony and convicted Khaliq Dad and Zubair Farooq under section 302, P. P. C. read with section 34, P. P. C. and sentenced the former to death and the latter to imprisonment for life. They were also ordered to pay a fine of Rs. 5,000, each and also to undgergo imprisonment in lieu thereof.

On appeal and reference, the High Court acquitted Zubair Farooq and while maintaining the sentence of fine substituted the sentence of imprisonment for life.

The High Court while appraising the evidence held that there was long standing enmity between Pir Abdul Razzaq and Khaliq Dad, and that both Khuda Bakhsh (P. W. 8) and Shah Zaman (P. W. 9) were neither related to the deceased nor were of the same caste. Accordingly, the High Court held Pir Abdul Razzaq to be an interested witness, but as regards the other two witnesses, the conclusion of the High Court was that they were not inimically disposed towards the petitioner and to all intents and purposes were disinterested witnesses. The High Court next held that they were natural witnesses and that they had seen the occurrence and to have unanimously implicated the petitioner Khaliq Dad who had fired the fatal shot at the deceased. As for the participation of Zubair Farooq, the High Court held that as no evidence of a shot having been fired had been noticed, he could not have shared the common intention to kill the deceased, and, therefore, gave to him the benefit of doubt. Here it may be stated that the High Court did not doubt his presence as the motive was such that he would have in the ordinary course, accompanied his father.

It was urged by the learned counsel for the petitioner that there being enmity and Zubair Farooq having been acquitted the ocular testimony should not have been accepted without independent corroboration. It is true that as a matter of established practice of appreciation of evidence this principle is invoked in case of enmity between the parties, but in the instant case the incident occurred in broad daylight in a lane near a shop of Haji Khuda Bakhsh and it is difficult to believe that these witnesses would substitute the petitioner for the real culprit. Additionally the presence of Zubair Farooq was not doubted although he was not said to have shared the common intention. Therefore, his acquittal was not on the basis of false implication. The demeanour of the witnesses has impressed us and we do not see any reason to disagree with their assessment by the High Court. accordingly, there is no merit in Petition No. 1‑ft of 1983, which is dismissed.

As for the reversal of the acquittal of Zubair Farooq, the High Court has given good reasons and we do not see any point in disturbing the conclusion of acquittal. In regard to enhancement of sentence of Khaliq Dad to death, which was reduced by the High Court, we also find no interfere with it as the earlier incident had apparently prompted Khaliq Dad and his son Zubair Farooq to avenge the grievance, and the High Court rightly took notice of it while reducing the sentence.

Accordingly, Petition No. 422 of 1982, has no substance and is dismissed.

M.Z. M. Petition dismissed.

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