1990 PLP 293 (SCMR)

GHULAM MUJADDID, J.‑‑Judgment of the Lahore High Court dated 5‑12‑1981 has been challenged by means of two separate petitions (Cr. P.36 and J.P.12 of 1982) for leave to appeal. In Cr. Petition No. 36 of 1982, the main relief sought is that the acquittal of Maqsoodul Hassan was not justified. In the other petition through jail, Mohammad Hayat wants the judgment of the High Court to be set aside and he be acquitted. On 28‑3‑1977 at 6‑30 a.m., Skier Muhammad alongwith his grandson Khawar lqbal were on their way to Longowal Brohi Railway Station. They were travelling in a tonga driven by Muhammad Hussain. Muhammad Anwar complainant was on a motorcycle behind the tonga when Muhammad Hayat armed with hockey; Shaukat Hayat with Dang; Abdul Rauf with hockey and Maqsoodul Hassan with gun and Ghulam Rasul with knife who lay in ambush, came out. Muhammad Hayat opened the attack. He gave a hockey blow on the forehead of Sher Muhammad. Then co‑accused except Maqsoodul Hassan inflicted injuries to him with their respective weapons. Skier Muhammad died at the spot. Muhammad Anwar nephew of Sher Muhammad lodged the report on the same day at 7‑45 P.M. at Police Station Sangla Hill which is at a distance of six miles from the place of occurrence. As a result of the report, five persons were hauled up. They were tried by the Additional Sessions Judge, Sheikhupura. The trial Court by judgment dated 15‑9‑1979 acquitted Ghulam Rasool, Abdur Rauf and Shaukat Hayat. Muhammad Hayat and Maqsood ul Hassan were convicted under section 302/34, P.P.C. The former was sentenced to death and the latter to imprisonment for life with fine of Rs.10,000 each or in default two years' R.I. each. They were further convicted under section 307/34 and sentenced to seven years' R.I. each with tine of Rs.1000 or in default one year R.I. each. The convicts appealed to the Lahore High Court. Reference for confirmation of death sentence was also made. The complainant filed revision against the acquittal of Ghulam Rasool, Abdur Rauf and Shaukat Hayat. All these matters were decided by means of the impugned judgment the result of which was that the High Court upheld the conviction of Muhammad Hayat under section 302, P.P.C. but the sentence was commuted to imprisonment for life. Maqsoodul Hassan was acquitted. First of all we take up Crl. Petition No. 36/82. Sh. Nasim Hassan, Senior Advocate Supreme Court, contended that the High Court erred in law in acquitting Maqsoodul Hassan respondent of the charge of murder as well as attempt to murder. The argument advanced in support of his contention was that on the same evidence conviction of Muhammad Hayat had been upheld. Learned counsel submitted that the prosecution proved the case against Maqsoodul Hassan beyond reasonable doubt by direct as well as indirect evidence. It was argued that as such the impugned judgment was not only contrary to the doctrine of consistency but had resulted in miscarriage of justice. Learned counsel then referred to the ocular testimony and the other relevant evidence. Reappraisal of evidence has already been done by the High Court. We are, therefore, not inclined to enter into that. The chances of success in such a petition are very grim unless there is an error either patent or latent of law or even of fact which goes to the root of the case and thus results in miscarriage of justice. The High Court discussed in detail the prosecution as well as the defence evidence. Ghulam Rasul, Abdur Rauf and Shaukat Hayat were acquitted by the trial Court because they were given benefit of doubt. The High Court after examining the evidence was of the view that possibility that hired assailants were involved in the commission of the crime could not be ruled out. Maqsoodul Hassan was acquitted because the only testimony against him was of Khawar Iqbal. He was found to be an interested witness. There was no corroborative evidence available. While dealing with the case of Muhammad Hayat, the High Court observed as under:‑ "Consequently, in our view, he had participated in the commission of crime and the prosecution has succeeded in establishing its case as against him beyond any shadow of doubt." All the\relevant aspects were duly considered by the High Court. The learned Judges were convinced about the participation of Muhammad Hayat. Case against him had been proved by reliable evidence. He was given concession in the quantum of sentence because of his age, and, one of the other facts was that his nose was chopped off in a previous incident. We, therefore, don't find any merit in either of the petitions. Both are accordingly dismissed. N.H.Q./M‑1139/S Petitions dismissed.