1990 PLP 562 (SCMR)

GHULAM MUJADDID, J.‑‑Petitioner alongwith Fateh Kl!tan, Fazal Ali, Muhammad Ourban, Shabbir Ahmad and Muhammad Razzaq were tried by the Sessions Judge Jhelum for the murder of Muhammad Fazil. The trial Court by judgment dated 9‑12‑1972 convicted Talib Hussain petitioner and Razzaq under section 325/34, P.P.C and sentenced them to seven years' R.I. each with fine of Rs.1,000 or in default one year R.I. each. The convicts appealed to the Lahore High Court. The complainant filed revision against the acquittal of the accused. The appeal as well as the revision were dismissed by the learned Judge by judgment dated 22‑4‑1989. Talib Hussain now seeks leave to appeal against the aforesaid judgment. The incident in which Muhammad Fazil had been murdered took place on 26‑6‑1970 at sunrise time in Village Gatiala. Report was lodged by Subah Sadiq, brother of the deceased at 11‑30 a.m. on the same day at Police Station Sadar Jhelum, It was recorded by Muhammad Bashir, Head Constable. Motive was that four months prior to the occurrence,) Talib Hussain's goats damaged the wheat crop of Muhammad Fazil. The latteq` abused him and the former gave him beating. Two months later, on the day of Eidul Azha, Talib Hussain alongwith Fateh Khan and Fazil Ali accused passed through the village of deceased who objected. The parties exchanged abuses and gave blows to each other. This led to the murder of Muhammad Fazil. Learned counsel appearing on behalf of the petitioner submitted that the conviction and sentence of the petitioner was illegal; the eye‑witnesses did not support the prosecution case; in the absence of their evidence both the trial Court as well as the High Court erred in law in relying upon the statements of the Court witnesses, namely, Muhammad Aslam, Muhammad lshaq, Mushtaq Ahmad, Muhammad Sadiq and Ghulam Haider. We don't agree with this contention. The trial Court had the necessary power to summon material witnesses as envisaged by section 540, Cr.P.C. which is to the following effect:‑‑ "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re‑examine any person already examined; and the Court shall summon and examine or recall and re‑examine any such person if his evidence appears to it essential to the just decision of the case." The High Court was aware of this position that is why it was observed, "from the statements of the Court witnesses who are independent and disinterested, the medical evidence, the motive part of the story and the recovery of blood‑stained sticks at the instance of the appellants, the conclusion that they had injured the deceased is more than proved." The petitioner has already been dealt with leniently. There is no further scope for giving him more concession in the quantum of sentence. The conviction and sentence being in accordance with law, no case is made out for leave to appeal. Dismissed. MA.K./T‑54/S Leave refused.