1988 PLP 383 (SCMR)

SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the judgment, dated 29-2-1984 of the Lahore High Court whereby the conviction of the respondents, Ghulam Shabbir and Zafar Iqbal, who are first cousins inter se, on a charge of murder under section 302, read with section 34 of the Pakistan Penal Code, recorded by the learned Sessions Judge, Jhang, was set aside and they were acquitted. The petitioner is the real uncle of Malang Hussain who wars alleged to have been killed by the respondents. .

2. Malang Hussain deceased married Mst. Gul Fatima about 8 years prior to the occurrence. Before her marriage with the deceased Mst. Gul Fatima was engaged to Ghulam Shabbir, respondent. It was alleged by the prosecution that Ghulam Shabbir was annoyed with the deceased on account of this marriage. This was stated to be the motive for the occurrence.

3. Malang Hussain deceased was running a Karyana shop in village Dul. It was alleged by the prosecution that on the night between 30-6-1979 and 1-7-1979 he was sleeping in front of his shop together with his uncle Muhammad Nawaz (P.W.9), cousin Ghulam Ali (P.W.7) and Mopal (P.W.8). At about 1-30 A.M., Ghulam Shabbir armed with a Kassi and Zafar Iqbal came there. While Zafar Iqbal held the deceased, Ghulam Shabbir inflicted two kassi blows on his neck. The deceased died at the spot. Ghulam Ali' (P.W.7), Mopal (P.W.8) and Muhammad Nawaz (P.W.9) woke up on hearing the alarm. They overpowered both the assailants and took them to the house of the father of the deceased namely, Khadim Hussain (P.W.10). They then went to Police Station Garh Maharaja and produced Ghulam Shabbir and Zafar Iqbal together with blood-stained Kassi before Sub-Inspector Sanaullah of the said police station. Khadim Hussain (P.W.10) made a statement at the police station on the basis of which a case was registered against the respondent under section 302, read with section 34 of the Pakistan Penal Code.

4. Both respondents pleaded not guilty to the charge against them and alleged that it was a case of blind murder and that they were not in any way responsible for causing the death of the deceased. They did not produce any witness in their defence.

5. The case against the respondents rested mainly on the ocular testimony furnished by Mopal (PW.8), Ghulam Ali (PW.7) and Muhammad Nawaz (PW.9). The trial Court accepted their testimony, convicted.3y,3 the respondents of an offence under section 302, read with section 34 of the Pakistan Penal Code and sentenced them to suffer imprisonment for life and pay fine.

6. On appeal, the High Court found that there was no real motive for the respondents to kill the deceased as his marriage with Mst. Gul Fatima had taken place many years earlier and she had even given birth to a child. It also held that none of the eye-witnesses had given a satisfactory explanation for his presence at the spot at the relevant time and for that reason the ocular testimony was not reliable; accordingly, it acquitted both respondents.

7. In support of this petition, it is contended that the High Court was not right in doubting credibility of the ocular testimony on the ground that the eye-witnesses had not been able to satisfactorily explain how they had come to spend the night at the shop of the deceased. The occurrence took place at 1.30 A.M. whereas it was reported at Police Station Garh Maharaja (which was four miles away) before sunrise at 4.30 A.M. The fact that they were able to overpower both the assailants at the spot with the weapon of offence corroborated their claim that they were present at the scene of occurrence at the relevant time. Apart from that, Muhammad Nawaz (PW.9) was an entirely independent witness and he had no reason at all to perjure himself against the respondents.

8. The contentions raised in support of this petition require examination. Leave to appeal is granted. Let warrants of arrest, bailable in the sum of Rs.25,000 with two sureties in the like amount, returnable to the Assistant Commissioner, Shorkot, issue against Ghulam Shabbir and Zafar Iqbal, respondents. M.I. /A-144/S Leave granted.