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Criminal Petition for Special Leave to Appeal No. 218 of 1981, decided on 23rd January, 1984.

(Against the judgment of the Lahore High Court, 13WP Bench, dated 24th March, 1981, passed in Criminal Appeal No. 110‑79/BWP and Murder Reference No. 32/79/BWP).

‑‑ Art. 185(3)‑Penal Code (XLV of 1860), S. 302/34‑Murder‑Evi dence‑Close relationship of complainant party with accused‑Courts below, weighed with such relationship, holding that testimony of pro secution witnesses belonging to complainant party did not require corroboration and feeling it safe to base conviction of accused only 'on their testimony‑Leave to appeal‑Granted to consider whether Courts had followed well‑established principles of appreciation of evidence in criminal cases.‑[Evidence].

Ch. Ghulam Murtza Khan with 1qbal Ahmad Qureshi, Advocate‑on -Record for Petitioner.

Nemo for the State.

Date of hearing : 23rd January, 1984.

‑Khadim Hussain petitioner seeks to appeal against his conviction and sentence.

He was tried alongwith his two brothers (Muhammad Nawaz and Faiz Bakhsh), for the murder of Muhammad Nawaz son of Allah Bachaya (deceased) and for making murderous assault on Nazar Ahmad (P. W. 11).

The occurrence took place at about 6 p.m. on 12‑10‑1978 in Mohallah Mir Siraj Din, Bahawalpur City. The F. I. R. was lodged by Manzoor Ahmad P. W. 8 (brother of the deceased).

The prosecution story, briefly, is that on the day of occurrence Manzoor Hussain complainant alongwith Athar Rashid P. W. 10 (business partner and close friend of the complainant) were present at Qatal Amara in connection with cotton business. Wahid Khan, a nephew of the com plainant, informed him (the complainant) that his buffaloes had been im pounded in the cattle pond by the Chief Officer, Municipal Committee, Bahawalpur. On this the complainant alongwith Athar Rashid P. W. reached Bahawalpur on motor‑cycle. Iqbal (who runs a hotel in front of the Municipal Committee Office) informed them about the place of residence of the Chief Officer in Satellite Town. They therefore went there and met Qazi Abdul Jalil Chief Officer) who showed his inability to help them in getting buffaloes released and that they should approach the Assistant Com missioner. To find out someone to approach the Assistant Commis sioner they started for their house. When they reached near the house of one Sh. Saeed Ahmad they saw Faiz Bakhsh, Nazu (Muhammad Nawaz) and Khadim Hussain, giving chhurri blows to Nazar Ahmad (P. W. 8) and the deceased (Muhammad Nawaz son of Allah Bachaya). On alarm raised by Manzoor Hussain (complainant) and Athar Rashid (P. W. 10), Allah Bachaya and Khadim Hussain (given up P. Ws.) were attracted to the spot. On seeing the witnesses coming to the spot the accused ran away raising lalkara that they had avenged the murder of their uncle. The wit nesses tried to catch hold them but they were threatened.

The motive for the occurrence is that 28/3,9 years back an uncle of the accused was murdered by Allah Bachaya P. W. the father of Muhammad Nawaz deceased.

3. During the investigation each of the accused led to the recovery of a blood‑stained chhurri.

At the trial the prosecution relied on the ocular testimony of (i) Manzoor Ahmad (P.W. 8) cousin of the deceased; (2) Athar Rashid P.W. 10 (a friend of Manzoor Ahmad) and Nazar Ahmad P. W. 11 (brother pf the complainant). It also relied on the evidence of recoveries ; the medical evidence and the motive.

4. The learned trial Court disbelieved the motive as well as the recoveries. It, however, relied upon the testimony of the eye‑witnesses and the medical evidence which showed that the deceased as well as Nazar Ahmad had been caused injuries with knives. It convicted Khadim Hussain petitioner and Muhammad Nawaz (alias Nazu) under section 302/34, P.P.C. and sentenced each of them to death and a fine of Rs. 2,000 each or in default to undergo further R. I, for 2 years each. It also convicted each of them under section 307/34, P. P. C. and sentenced them to 7 years' R. I. each and fine of Rs. 500 each or in default further R. I. for six months each. It, however, acquitted Faiz Bakhsh (co‑accused) of both the charges.

The two convicted accused filed an appeal before the High Court while Manzoor Ahmad complainant filed a revision petition against the acquittal of Faiz Bakhsh (acquitted co‑accused). The High Court dismissed the appeal of Khadim Hussain and Muhammad Nawaz accused and confirmed their death sentence, but accepted the complainant's revision petition and ordered the retrial of Faiz Bakhsh vide the impugned judgment dated 24‑3‑1981.

Khadim Hussain alone leas filed the present petition for leave to appeal against his conviction.

4. We have heard the petitioner's counsel at some length and also gone through the impugned judgment as well as certain portions of the evi dence on the record.

We notice that what appears to have weighed with the learned. Courts below is that the complainant party is very closely related to the accused, inasmuch as the complainant and his brother Nazar Ahmad (the injured P. W.1 are cousins of the accused and their sister has‑been married to Faiz Bakhsh (acquitted accused). The learned trial Court and the High Court, therefore, held that their testimony does not require corroboration and that implicit reliance could be placed on it. These Courts, therefore, felt it safe to based the conviction of the accused only on their testimony. On going through the evidence we feel that because of the hosti lity between the parties it is quite possible that the complainant party con sidered it a good opportunity to involve all the three brothers. The possibility cannot be ruled out that either one or more of them was innocent. In the absence of any corroboratory evidence their identity cannot be determined with any certainty. This impression finds strength from the fact that Muhammad Nawaz the third accused has not filed any petition for leave to appeal against his conviction.

It may be mentioned that the complainant had filed a revision petition in the High Court against the acquittal of Faiz Bakhsh co‑accused. The High Court accepted it and ordered his re‑trial. He filed a petition for leave to appeal (No. 212/81, before this Court and leave was granted to him on 3‑5‑1981. The evidence in the case will have to be re‑examined while deciding the appeal arising out of the said Petition.

We, therefore, feel that leave may be granted in this case as well, to consider whether the learned Courts below had followed the well‑established principles of appreciation of evidence in criminal cases. We, consequently, order accordingly.

As far as Muhammad Nawaz accused is concerned, we feel that in view of the fact that the evidence shall come up for reconsideration with regard to the appeals of Khadim Hussain and Faiz Bakhsh accused, Muhammad Nawaz convicted/accused would naturally be well‑advised to also file a peti tion for leave to appeal. We told his counsel Ch. Ghulam Murtaza Khan, to seek instructions from the attorney in this behalf.

S. Q. Leave granted.

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