1987 PLP 596 (SCMR)

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/324/325‑‑Enhancement of sentence‑‑Occurrence taking place over eviction of residential quarters‑‑No resistance offered by accused party in the beginning and one quarter got vacated peacefully‑‑Evidence showing that there was scuffle in which accused received injuries‑‑Reason of scuffle not disclosed‑‑Held, no useful purpose would be served by granting leave to appeal against convicts for enhancement of sentence in circumstances‑‑Petition dismissed. Dr. Khalid Ranjha, Advocate Supreme Court, with S. Wajid Hussain Advocate‑on‑Record (absent) for Petitioner. Ejaz Ahmad Khan, Advocate‑on‑Record for the State. Date of hearing: 11th January, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought in these two petitions from judgment dated 7‑10‑1980 of the Lahore High Court; whereby in a murder case the appeal filed by the convicts was partly allowed and a revision filed by the complainant‑side, was dismissed. Criminal Jail Petition No.97‑R of 1980 has been filed by the two convicts: Muhammad Zubair and Muhammad Zafar, wherein they have challenged their conviction, while Criminal Petition No.616 of 1980 has been filed by Muhammad Ashfaq Ahmad, a brother of Fayyaz Ahmad deceased in this case, so as to seek reversal of the acquittal of Muhammad Ishaque, the father of Zubair and Zafar and enhancement of sentence of life imprisonment awarded to the latter two‑‑the two convicts. Fayyaz Ahmad deceased's mother had succeeded in obtaining ejectment orders of Muhammad Ishaque the acquitted accused and one Muhammad Siddique from her property‑Quarters Nos. 5 and 6 respectively. The case was decided on 29‑10‑1974. Warrants for possession were being executed against the evictees at the spot through Muhammad Sadiq P.W.12 (the bailiff of the Court) when the present occurrence took place. Quarter No.5 in possession of Muhammad Ishaque accused was got vacated and locked (it appears peacefully) after the warrants were shown to Muhammad Ishaq by Muhammad Sadiq Bailiff P.W. and his colleague Abdul Latif. All the three accused, namely, Muhammad Ishaque and his two sons: Zafar and Zubair, were present there empty‑handed. They grappled with Fayyaz deceased. The Bailiffs separated the parties but the accused gave threats to Fayyaz. The Bailiff then started removing the house‑hold articles from Quarter No.6 which, as noted above, was in occupation of a different party. During these proceedings the three accused all armed with sharp‑edged weapons appeared at Quarter No.6 and attacked Fayyaz. The latter started running away. He was chased by them and done to death. Abdul Ghaffar and Saeed Ahmad P.Ws. tried to save Fayyaz. Both of them were also injured by the accused. Fayyaz had died at the spot. At the trial ocular and circumstantial evidence was led against the accused. Ishaque was acquitted by the learned trial Court on the assumption that Muhammad Sadiq P.W. (the Bailiff) had not fully implicated him. Zubair and Zafar were convicted under sections 302 and 307 P.P.C. and were awarded various sentences including life imprisonment on murder charge. On appeal and revision the High Court maintained the acquittal of Ishaque on the finding that it is doubtful whether he participated in the occurrence and while maintaining the conviction of Zubair and Zafar under section 302, P.P.C. maintained the sentence of life imprisonment under the said charge but set aside the conviction under section 307 and substituted it with conviction under section 324/325, P.P.C. The sentence under the second head so substituted was reduced to one year's R.I. We have examined the case with reference to the Jail Petition filed by Zubair and Zafar calling in question their conviction and have heard the learned counsel from the complainant‑side in support of the petition against acquittal of Ishaque and for enhancement of sentence awarded to Zubair and Zafar. Three independent witnesses: Muhammad Sadiq Bailiff and two injured persons Abdul Ghaffar and Saeed Ahmad supported the case against Zafar and Zubair. There is nothing in their testimony to show that they had any reason to falsely implicate them. The plea raised in the grounds of their appeal that Fayyaz deceased was the aggressor does not find any support from the evidence. They were rightly convicted for having murdered Fayyaz Ahmad and injured Abdul Ghaffar and Saeed Ahmad. Their case does not merit any further consideration. The Jail Petition filed by them is also barred by time. The same is dismissed. Learned counsel for the complainant‑side has rightly pointed out that Muhammad Sadiq P.W. had not exonerated Ishaque accused and that the learned trial Court had acquitted him due to misreading of evidence. But that would not end the matter. The learned Judges of the High Court gave additional reasons to support their view that a possibility of reasonable doubt regarding Ishaque's actual participation in the occurrence could not be excluded. Even if on re‑appraisal of evidence this Court might hold different opinion on this finding of fact, that would not be a valid ground for setting aside acquittal; particularly when it would be a case of re‑trial as the State had not filed an appeal against the acquittal. The petition in this behalf before this Court has arisen from the dismissal of the revision filed by the complainant‑side in the High Court. In the circumstances of this case, therefore, leave to appeal against the acquittal of Ishaque is refused. The bare facts of this case, as noted above, prima facie, disclose the commission of a heinous crime by Zubair and Zafar as they took revenge by killing Fayyaz Ahmad deceased simply because the victim party had succeeded in getting an eviction order against their father. But on deeper scrutiny it would be legitimate to assume that to start with the accused had no intention of resisting the execution of the warrant of possession and that is why Quarter No.5 was not only got vacated peacefully but also that Fayyaz Ahmad was able to lock it without any objection from the accused. It is also significant that they remained at the spot and did not arm themselves. Then there was scuffle in which both the convicts also received injuries. As to why the scuffle started when the accused side had surrendered the possession peacefully and were not then armed, remains shrouded in mystery. Therefore, no useful purpose would be served by granting leave to appeal against the convicts for enhancement of the sentence. The second petition accordingly is also dismissed. M.I. /M‑11/S?????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed