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Criminal Petition for Special Leave to Appeals Nos. 367 and 368 of 1983, decided on 3rd June, 1986.

(Against the judgment of the Lahore High Court, Lahore, dated 30‑10‑1983, passed in Criminal Appeal No. 600 of 1982 with Murder Reference No. 124 of 1982).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/307/379/411/148/149, P.P.C.‑‑Leave to appeal, grant of‑‑Reappraisal of evidence‑‑Whether well‑established principles of appreciation of evidence in criminal cases were followed‑‑Nine persons tried for murder‑‑Trial Court acquitted three of them‑‑On appeal High Court maintained conviction of one and acquitted remaining five accused‑‑Two petitions for leave to appeal, one against conviction and others against acquittal‑‑Pleas raised in one case that reasons recorded for singling out one for maintaining his conviction on ground that he was said to have fired first shot at deceased were not sound and contention raised in‑other case that reasons given for acquittal of five others were not tenable because evidence of injured witnesses whose presence at spot was not disbelieved fully implicated them as well as convicted accused and prosecution evidence against them could not be distinguished from that available on record‑ Leave to appeal granted in both cases for re‑appraisal of evidence on record to see whether well‑established principles of appreciation of evidence in criminal cases had been followed.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/307/379/411/148/149, P.P.C.‑‑Leave to appeal, grant of‑‑Re‑appraisal of‑ evidence‑‑Whether well‑established principles of appreciation of evidence in criminal cases were followed‑‑Nine persons accused in murder case‑‑Trial Court acquitting three‑‑High Court maintaining conviction of one and acquitting remaining five‑‑Leave to appeal‑‑Plea raised that prosecution evidence of record was not distinguishable‑‑Leave granted for re‑appraisal of evidence to see whether well‑established principles of appreciation of evidence in criminal cases were followed.

M.B. Zaman, Senior Advocate Supreme Court and Rana Maqbool Ahmad Kadri for Petitioner (in Criminal P.S.L.A. No. 367 of 1983).

Ijaz Hussain Batalvi, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner (in Criminal P.S.L.A. No. 368 of 1986).

M.A. Bajwa, Advocate Supreme Court for the State.

Date of hearing: 3rd June, 1986.

This order will dispose of Criminal Petition for Special Leave to Appeal No. 367/83 filed by Ijaz Hussain Shah against his conviction and sentence and Criminal Petition for Special Leave to Appeal No. 368/83 filed by Ghulam Raza Shah against the acquittal of respondents 2 to 6 of the charges under sections 302/307/ 379/411 and 148, P.P.C., and against the acquittal of Ijaz Hussain Shah of the charge under section 148, P.P.C.

Facts briefly are that 9 (nine). persons including Ijaz Hussain Shah and respondents 2 to 6 in Criminal Petition No. 368/83, were tried for the murder of Ghulam Murtaza Shah and making murderous assault on Ghulam Raza Shah (P.W. 13), Bashir Hussain (P.W. 14) and Muhammad Riaz (P.W. 15). Ijaz Hussain Shah was also accused of having stolen and taken away the revolver of the deceased along with 6 bullets.

2. The motive alleged in the F.I.R. is that 10/11 years prior to the occurrence Ghulam Hassan Shah, maternal‑uncle of Riaz Hussain Shah, Ejaz Hussain Shah accused and paternal‑cousin of Manzur Hussain Shah accused was murdered for which Ghulam Raza complainant and his brother Manzur Hussain and six others were prosecuted and acquitted. At the time of occurrence cross‑cases for attempted murders was also pending against both the parties.

3. During the investigation fire‑arms were recovered from 7 of the accused persons including the 6 accused persons before us in the two petitions. Revolver of the deceased is also said to have been recovered from Ijaz Hussain Shags accused (petitioner in Criminal Petition 367/83). These recoveries were, however, not relied upon.

The prosecution case rests mainly on the ocular testimony of the aforementioned injured eye‑witnesses, supported by the evidence of. motive and the medical evidence.

4. The learned trial Court believed the prosecution evidence and convicted and sentenced them under the aforesaid offences, as under:‑

Under section 302/149, P.P.C.

Death with a fine of Rs.2,000 (2 years' R.I. in default) to each of Ejaz Hussain Shah, Riaz Hussain Shah, Tasawar Hussain Shah, Muhammad. Hussain Shah and Ghulam Hussain Shah; Life imprisonment to Manzoor Hussain Shah, with a fine of Ra.2,000 (2 years' R.I. in default).

Under sections 307/149, P.P.C.

5 years' R.I. and a fine of Rs.1,000 on three counts (one year R.I. in default) to each of Ejaz Hussain Shah, Riaz Hussain Shah, Tasawar Hussain Shah, Ghulam Hussain Shah and Manzoor Hussain Shah;

Under section 148, P . P . C .

One year's R.I. and a fine of Rs.500 (3 months' R.I. in default) to each of the six accused.

Under sections 379/411, P.P.C.

2 years' R.I. and a fine of Rs.500 (4 months' R.I. in default) to Ejaz Hussain Shah.

The trial Court acquitted three co‑accused namely Muhammad Iqbal; Dost Muhammad and Ghulam Hussain.

5. On appeal the High Court maintained the conviction and sentence of Ejaz Hussain Shah (petitioner in Criminal Petition 367/83) under section 302, P. P . C . His conviction under section 307 / 379 / 411, P . P . C . was also maintained.

The remaining 5 accused (respondents 2 to 6 in Criminal Petition 368/83), were acquitted of all charges.

Hence the present two petitions, one against his conviction by Ejaz Hussain.Shah and the other against the acquittal of the remaining 5 co‑accused.

6. Learned counsel for Ejaz Hussain Shah (petitioner in Criminal Petition 367/83) submitted that the reasoning of the High Court for singling out Ejaz Hussain Shah for maintaining his conviction (recorded in paragraph 15 of the impugned judgment) is not sound. The reasons recorded by the learned High Court for singling him out, basically, is that Ejaz Hussain Shah is said to have fired "the first shot at the deceased".

Similarly, counsel for the petitioner in Criminal Petition 368/83 argued that the reasons given for the acquittal of the remaining 5 convict‑accused as given in paragraph 14 of the impugned judgment are not tenable, because evidence of the injured witnesses whose presence at the spot was not disbelieved have fully implicated them as well as Ejaz Hussain Shah; and that the prosecution evidence against them cannot really be distinguished from that available on the record against Ejaz Hussain whose conviction was maintained by the High Court. He, therefore, prays for grant of leave against their acquittal.

Having gone through the aforementioned contentions we are inclined to agree with the learned counsel and find that there is some weight in these contentions. As such it is a fit case for reappraisal of evidence on the record to see whether the well‑established principles of appreciation of evidence in criminal cases have been followed.

Leave is, therefore, granted in both the cases before us.

8. Bail able warrants shall issue against the five respondents Nos. 2 to 5 in Criminal Petition No. 368/83 in the sum of Rs.20,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Khanewal.

M. I. Leave granted.

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