2011 SCMR 1044 (PLP)

NASIR-UL-MULK, J.

Abdul Latif, the petitioner in Criminal Petition No.465 of 2010, and his co-accused, Amir Abbas, were tried for the murder of Rab Nawaz, brother of the complainant, Muhammad Nawaz, and for robbing the deceased of cash and other articles. They were convicted under section 302(b), P.P.C.; the petitioner was sentenced to death and Amir Abbas to imprisonment for life. They were also convicted under section 392, P.P.C. and sentenced to 10 years' and 4 years' R.I. respectively. Both the convicts assailed their conviction and sentences before the High Court, whereas the complainant moved the High Court for enhancement of sentence of the convicts. The appeal of Amir Abbas was dismissed, whereas the sentence of Abdul Latif under section 302(b), P.P.C. was reduced to imprisonment for life. The Revision Petition for enhancement of sentence was dismissed. Abdul Latif has assailed his conviction and sentence whereas Muhammad Nawaz, complainant has filed Criminal Petition for Leave to Appeal No.476 of 2010 for enhancement of sentence of both the convicts. Amir Abbas has not filed any petition.

2. The deceased was strangulated in his house. At the relevant time the two convicts were employed by the deceased for whitewashing the house and according to the complainant, he along with the two other eyewitnesses, Zafar Iqbal and Sawal Khan, were passing by the house of the deceased at about 6-30 a.m. when they were attracted by the hue and cry of the deceased. That when they entered the house, they saw the two convicts strangulating the deceased. That they further saw the accused taking away saving certificates, cash and other articles belonging to the deceased and then fled from the scene.

3. After hearing the learned counsel for the parties, leave to appeal is granted to consider whether the conviction of the petitioner, Abdul Latif, can be sustained in the light of the argument advanced by the learned counsel for the petitioner that the ocular testimony is not credible, as the witnesses are typical chance witnesses for they have furnished no plausible explanation for their presence near the house of the deceased early in the morning at about 6-30 a.m. That it is unbelievable coincidence that the witnesses should arrive at the scene just at the right moment when the deceased was being strangulated. That it is also not believable that the complainant and the two eye-witnesses made no effort to either prevent the deceased from being strangulated or stopping the accused from taking away the valuables of the deceased.

4. Since we are granting leave to appeal to the convict, Abdul Latif in Criminal Petition 465 of 2010, we also grant leave in Criminal Petition No. 476 of 2010, filed by the complainant. Notice is given to both the convicts as to why their sentence should not be enhanced. Mr. Basharat Ullah Khan, Advocate Supreme Court, appearing for the convict, Abdul Latif, accepts notice. The office shall serve notice on the other convict, Amir Abbas. M.A.K./A-14/SC Leave to appeal granted.