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Criminal Petition for Special Leave to Appeal Nos. 418 of 1981 and 23 of 1982, decided on 24th May, 1986.

(Against the judgment of the Lahore High Court, Lahore, dated 13‑4‑1980, passed in Criminal Appeal No. 135/79).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Petition for leave to appeal‑‑High Court not relying on some witnesses with respect to co‑accused while it believed them with regard to part played by accused on reasoning which were not very convincing‑‑Contention raised by accused about such treatment requiring further examination‑‑Leave to appeal granted.

Nemat Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab (for Petitioner) in Criminal Petition No. 418 of 1982 and for Respondents (in Criminal Petition No. 23 of 1982) .

M.A. Bajwa, Advocate Supreme Court with Sh. Ejaz Ahmed Khan, Advocate‑on‑Record for the State (in both the Petitions).

Ch. M. Abdus Salim, Advocate Supreme Court (absent) and M. Aslam Chaudhry, Advocate‑on‑Record for Petitioners (in Criminal Petition No. 23 of 1982). .

Date of hearing: 24th May, 1986.

.‑‑This order will dispose of Criminal Petition No. 418 of 1981 filed by Ghulam Nabi against his conviction and sentence, and Criminal Petition No. 23 of 1982 filed by Fazal Din against the acquittal of Rashid and Ghulam Farid respondents.

It may be mentioned that Criminal Petition No. 23 of 1982 is barred by time by 61 days.

3. Facts giving rise to the petitions are that Ghulam Nabi petitioner in Criminal Petition No. 418 of 1981, was tried alongwith Rashid and Ghulam Farid (respondents in Criminal Petition No'. 23 of 1982) as well as Yaqoob and Iqbal (acquitted co‑accused) for. the murder of Asghar Ali and for causing injuries to Muhammad Sharif (P.W. 14) and Sadiq (P.W. 15).

4. Motive for the offence is that two or three days before the occurrence, deceased Asghar Ali and Elahi Bakhsh father of accused Ghulam Nabi had quarrelled with each other in the course of which the deceased had beaten Elahi Bakhsh. In order to take revenge of that beating the deceased was put to death by the accused.

5. The prosecution case briefly is that on 28‑7‑1975 at Zoharwala Fazal Din P.W. his son Asghar Ali deceased and nephews Muhammad Sharif as well as Muhammad Sadiq had gone to attend the 'Mela' of Baba Bholey Shah in the area of Chak No. 70/E.B., Tehsil Pakpattan, District .Sahiwal. Fazal Din P.W. was met by Muhammad Shafi and Muhammad Rafiq P.Ws. who told him that they had heard accused Yaqoob conspiring with Ghulam Nabi and others to the effect that the deceased had come to see the 'Mela' and, therefore, it was a good opportunity for them to take the revenge for the beating given to the father of accused Ghulam Nabi. Upon this information Fazal Din P.W. left for his Chak No. 66/E.B. along with the deceased and his two nephews Muhammad Sharif and Muhammad Sadiq P.Ws. Muhammad Rafiq also followed them. When all of them reached near the tubewell of Siddiq Jat, accused Ghulam Nabi who was armed with a .12 bore gun. Abdur Rehman alias Mahja who was holding a rifle, Ghulam Farid carrying a Gandala; Rashid alias Sheeda armed with a Sota and Iqbal alias Babu carrying a Barchhi appeared upon the scene. Ghulam Nabi raised a Lalkara upon which the deceased and the P.Ws. were scared and started running towards the tubewell of Siddiq Jat. All the accused chased and overtook them near the tube well. Ghulam Nabi fired a gun shot hitting the deceased in his belly. Mahja fired some shots in the air and raised a Lalkara saying that if anybody approached he would meet the same fate. The P.Ws. entreated the accused to spare them but the latter started beating the P.Ws..,Sharif and Sadiq with their respective weapons. The incident was also witnessed by Rafiq P.W. who had reached the place of occurrence in the wake of the complainant party.

6. At the trial the prosecution relied mainly on the testimony of the two aforementioned witnesses namely Muhammad Sharif and Muhammad Sadiq; the evidence of motive and the medical evidence.

Some recoveries of weapons were effected from the accused but were not relied upon.

7. The learned trial Court acquitted Yaqoob and Iqbal but convicted and sentenced the remaining accused as follows:‑‑

Ghulam Nabi: Death under section 302/34, P.P.C. and a fine of Rs.2,000.

Ghulam Farid, Imprisonment for life under section 302/34,

Rashid: P.P.C. and a fine of Rs.2,000 each.

All the three accused were also convicted under section 324/34, P.P.C. and sentenced to 3 years' R.I. ‑ and a fine of Rs.300 each.

They were further convicted under section 323/34, P.P.C. and sentenced to one year's R.I. and a fine of Rs.100.

8. On appeal the learned High Court acquitted Rashid and Ghulam Farid (respondents in Criminal Petition 23/82), but maintained the conviction of Ghulam Nabi and confirmed his death sentence.

Hence the present petitions, one by Ghulam Nabi, i.e. (Criminal Petition No. 418/81) and the other by. Fazal Din complainant (Criminal Petition No. 23/82).

9. Learned High Court maintained the conviction of Ghulam Nabi by placing reliance on the testimony of the two injured eye‑witnesses whose presence at the spot cannot be denied due to the injuries on their persons and by holding that they were reliable witnesses inasmuch as they did not have previous enmity with him.

10. Learned counsel for Ghulam Nabi submitted that it is surprising that the High Court relied on the testimony of the two injured eye‑witnesses for maintaining his (Ghulam Nabi's) conviction without any independent corroboration, when it had disbelieved or at least did not rely upon the same witnesses as far as the persons who had caused injuries to them. He argued that when the Court did not believe these witnesses with respect to Rashid and Chulam Farid (acquitted co‑accused), their testimony should not have been relied upon by the High Court for maintaining the conviction of Ghulam Nabi and that he should, therefore, be acquitted.

11. On the other hand counsel for the petitioner in Criminal Petition No. 23 of 1982, raised the contention that once it was held by the High Court that these two injured persons were present at the spot and were not hostile to the opposite party and, further, that when it believed them with regard to the part played by Ghulam Nabi in killing Asghar Ali deceased, how could it be said that they had not seen the assailants who had caused injuries on their own persons.

12. We have gone through the relevant portions of the impugned judgment to examine the reasoning whereby the learned High Court did not rely the same witnesses with respect to Rashid and Ghulam Farid co‑accused while it believed them with regard to the part played by Ghulam Nabi petitioner and we do not find the reasoning of the High Court very convincing.

We are, therefore, of the view that the contentions raised by the petitioners' counsel in each case require further examination. Leave is therefore, granted for the said purpose, bi both the cases.

It may be mentioned that leave in Criminal Petition No. 23 of 1982. would be subject to the condition with regard to limitation.

13. Since leave has been granted against the two acquitted co‑accused (respondents in Criminal Petition No. 23/82), let bail able warrants for their arrest be issued in the sum of Rs.20,000 with two sureties each in the like amount, in each case, returnable to the Assistant Commissioner, Sahiwal.

M. Y. H. Leave granted.

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