1987 PLP 53 (SCMR)

Nemo for the State. Date of hearing: 1st November, 1986. JAVID IQBAL, J.‑‑This is a petition for leave to appeal against the judgment of a Division Bench of the Lahore High Court Lahore, dated 2nd October, 1982 where under the petitioner's conviction as well as sentence awarded to him by the trial Court under section 302, P.P.C., were maintained and his appeal was dismissed. The petitioner was tried alongwith Rab Nawaz and Gharib Nawaz by the Sessions Judge Mianwali for the murder of Abdullah Khan on 9th October, 1978 at 8‑15 a.m. near Abadi of village Nammal Police Station Chakrala District Mianwali, but he acquitted Rab Nawaz and Gharib Nawaz convicting the petitioner under section 302, P.P.C. and sentencing him to death plus fine of Rs.2,000, or in default to undergo two years' R.I. As stated above the Division Bench of the Lahore High Court Lahore dismissed the appeal of the petitioner maintaining his conviction and sentence. The F.I.R. in his case was recorded at Police Station, Chakrala on the same day at 1 p.m. on the statement of Nawab Khan P. W . 9 brother of the deceased who is also eye‑witness of the occurrence besides Mohammad Bakhsh P.W. 10 nephew of the deceased. According to the medical evidence the deceased sustained one fore‑arm injury on his left shoulder. The motive is that there was civil and criminal litigation pending between the parties to some land and also there is an allegation that the accused party had let loose its cattle in the field of the deceased and that the deceased had, therefore, insulted the petitioner of few days before the present occurrence. The facts are that the deceased who was a teacher in primary school of the village left for the school which his brother Nawab Khan P.W. 9 and nephew Mohammad Bakhsh P.W. 10 in the morning of the fateful day. The two companions of the deceased were going to Mianwali to make some purchases. When the three of them reached near the house of one Jehan Khan the present petitioners armed with rifle, his brother Gharib Nawaz acquitted co‑accused also armed with rifle and the other brother Rab Nawaz armed with the .12 bore gun appeared from the front. On the Lalkara of the accused party the three of them ran for shelter. Then it is stated that Gharib Nawaz acquitted oo‑accused fired but missed. So, was a shot fired by Rab Nawaz acquitted co‑accused from his gun. Then the petitioner fired a shot through his rifle which hit the deceased on his left shoulder. Learned counsel for the petitioner has vehemently argued that the ocular testimony was interested in the instant case and it was not being corroborated by any independent evidence. We have carefully considered the arguments of the learned counsel and perused the judgment. It was a day time occurrence and F. I. R. was promptly lodged. The petitioner has been attributed specific role. The finding of fact of the appellate Court is that the two eye‑witnesses of the occurrence even if classified as interested witnesses are to be considered as natural witnesses. They gave a sound explanation as to the purpose for their leaving the house along with the deceased. Furthermore, the testimony of both these eye‑witnesses was consistent in regard to the fact as to who had fired the fatal shot at the deceased and what was the seat of the injury. Thus, the ocular testimony of the two eye‑witnesses was accepted. The two acquitted co‑accused had been given the benefit of doubt as a precautionary measure by the trial Court. Hence the Division Bench of the Lahore High Court, Lahore relying on the ocular testimony in the instant case found that it was being supported by the medical evidence and it was in this background that the conviction as well as the sentence awarded to the petitioner were maintained. In the light of what has been discussed above in our view, no case is made out for re‑appraisal of evidence and in that view of the matter this petition is dismissed. M.I.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.