1988 PLP 48 (SCMR)

JAVID IQBAL, J.--This petition for leave to appeal has been filed by Arif complainant-petitioner and is directed against the judgment of the Lahore High Court, Lahore dated 29th March, 1982 whereby Allah Bakhsh respondent was acquitted. Briefly the facts are that Allah Bakhsh respondent alongwith Muhammad Yousuf and Manzoor was tried for an offence under section 302/34, P.P.C. but the trial Court acquitted Muhammad Yousuf and Manzoor and convicted Allah Bakhsh respondent only, under section 302, P.P.C. for the murder of Zahoor and sentenced him to death plus fine. In appeal a Division Bench of the Lahore High Court, Lahore vide its judgment dated 29th March, 1982 set aside the conviction of Allah Bakhsh respondent and acquitted him. Both the acquitted co-accused were armed with Sotas whereas Allah Bakhsh respondent was armed with gun. The occurrence took place on the night between 24/25 June, 1978 in the fields of Chak No. 64/15-L District Multan, and the F.I.R. was lodged in the morning. The recoveries have been disbelieved in this case. The eye-witnesses are Arif complainant petitioner husband of sister of the deceased, Haq Nawaz and Nazir. The eye-witnesses also have not been relied upon. The motive is that Haq Nawaz P.W. had developed illicit relations with Mst. Naziran sister of Muhammad Yousuf acquitted co-accused and daughter of uncle of Allah Bakhsh respondent as well as Manzoor acquitted co-accused. The prosecution version is that the accused party attacked the deceased mistaking him as Haq Nawaz P.W. According to the prosecution case on the fateful night while Arif complainant-petitioner was present in the house of the deceased, Haq Nawaz P.W. came there and requested them to accompany him to the fields to assist him in watering the fields. Thus they went with him and Nazir P.W. joined them on the way. While they were watering the fields Allah Bakhsh respondent armed with a gun and his two companions armed with Sotas came from the side of their Dhari. Allah Bakhsh respondent fired two shots at the deceased who fell down. The accused party ran away. There are four gunshot injuries on the person of the deceased and according to the medical evidence he received more shots than two. The appellate Court rejected the ocular testimony because it was in conflict with the medical evidence and, also material improvements had been made by the eye-witnesses at the trial stage. Another important point was that if the accused party had motive against Haq Nawaz P.W. then there was no reason to murder the deceased by mistake when Haq Nawaz P.W. himself was also available as he was present on the spot. One of the material improvements made at the trial stage was that the deceased was a go between so far as Haq Nawaz P.W. and Mst. Naziran were concerned. But this was never alleged in the F.I.R. nor stated by the witnesses before the police. The trial Court had acquitted the two co-accused and Allah Bakhsh respondent was acquitted by the appellate Court mainly for the reason that it was an un-witnessed occurrence. Learned counsel for the petitioner attempted to argue that even if Haq Nawaz P.W. against whom the accused party had motive was present along with the deceased on the spot, it was a night time occurrence and shots could have been fired by Allah Bakhsh respondent at the deceased under the mistaken belief that he was Haq Nawaz P.W. We have heard the learned counsel at some length. In our view it is not a fit case for interference. The petition is therefore dismissed. M.I./A-109/S Petition dismissed.