1987 PLP 673 (SCMR)

Nemo for Respondents (in Cr.P. No. 186 of 1981). M.B. Zaman, Senior Advocate Supreme Court and S. Ijaz Ali, Advocate for Petitioner (Criminal Petition No. 200 of 1981) . Nemo for Respondent (in Criminal Petition No. 200 of 1981). Date of hearing: 4th February, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought in these two petitions from judgment dated 1‑3‑1981 of the Lahore High Court; whereby in a murder case, on appeal and reference, the conviction of Irfan petitioner (in Cr.P. No. 200 of 1981) was upheld but the sentence of death was reduced to life imprisonment, while conviction of Saifur Rahman and Shami accused respondents (in Cr. P. No. 186 of 1981) the co‑convicts of Irfan with sentence of life imprisonment and fine were acquitted. Irfan petitioner was also awarded sentence of fine. About 13 years prior to the occurrence which took place in July 1974 at 10‑30 a.m., two brothers of Saifur Rahman and Irfan accused who are brothers inter se, were murdered for which 7 persons from the brotherhood of the deceased side in this case were challaned and tried but were acquitted by the High Court. There was other enmity also between the parties. On the day of occurrence Muhammad Zaheer deceased and Muhammad Jamil P.W. were sitting in front of the shop of Muhammad Rafique who is a first cousin of the deceased and also complainant when the three accused, namely, Irfan, Saifur Rahman and Shami came armed with rifles. They fired at Zaheer and his party. He was hit while the P.Ws. escaped unhurt. A buffalo belonging to one Muhammad Qasim died due to one of the fire shots. There were recoveries of fire‑arms from Irfan and Shami, but they were not connected with the crime. The police found Saifur Rahmsn accused innocent and placed him in Column No.2. Irfan petitioner had absconded for more than one year and two months. At the trial ocular account was furnished by Muhammad Rafique, first cousin of the deceased; Muhammad Jamil who is related to the deceased but not so close as to make him an interest witness, however, enmity between the accused and Jamil was established; and, Khushi Muhammad, who has been held by the High Court to be an independent witness. The defence plea was of denial and false implication. The trial Court convicted all the three accused under sections 302, P.P.C. and 429, P.P.C. and sentenced them accordingly. But, on appeal, the conviction and sentences of Saifur Rahman and Shami were set aside while the sentence of death awarded to Irfan was altered to life imprisonment. Learned counsel for Irfan contended that evidence having been disbelieved qua two accused Saifur Rahman and Shami, it was necessary .for the trial Court to require very strong corroboration against Irfan in so far as the firing by him is concerned. He has also contended that the High Court fell into error in treating Khushi Muhammad P. W. as an independent witness because according to his own admission in cross‑examination, he was related to the deceased. We do not agree with the learned counsel. The conviction of Irfan petitioner is based on ocular account given by three witnesses which stands corroborated by unexplained abscondance of Irfan petitioner for a long period. We do not agree with the learned counsel that the abscondance could not be treated as corroboration in the circumstances of this case. Although Khushi Muhammad is related to the deceased, but he is no so close as to have had a motive to falsely implicate any of the petitioners. For this reason also, the case against Irfan stands fully established. The acquittal of Saifur Rahman and Shami was by way of abundant caution. That would not render the testimony of the eye‑witnesses as untrustworthy particularly when it stands corroborated against Irfan. Keeping in view all the circumstances of the case, we do not find any justification for interference with the conviction of Irfan. The other petition for leave to appeal against acquittal of Saifur Rahman and Shami and for enhancement of sentence of Irfan has been pressed by the learned counsel for the complainant therein against Irfan only for enhancement of sentence. According to the learned counsel, the reasons given by the High Court for reduction of sentence are not convincing. Even if it were so, he admits that Saifur Rahman is elder brother of Irfan and according to the prosecution he not only was present at the time of occurrence but participated therein. For this additional reason also, it would not be proper now to grant leave to appeal for enhancement of sentence of Irfan who was under the influence of his elder brother at the time of occurrence. In the light of the foregoing discussion both the petitions are dismissed. M . /M‑26/S Petitions dismissed.