1999SCMR2672 (PLP)

SH. RIAZ AHMED, J.

This petition through jail seeks leave to appeal against the judgment and order, dated 11-12-1996 delivered by a Division Bench of the Lahore High Court whereby an appeal preferred by the appellant assailing his conviction on a charge under section 302, P.P.C. was dismissed and the death sentence awarded to the petitioner was confirmed.

2. The petition is barred by time, but the petitioner has stated that or: account of the non-availability of the relevant papers in jail, he could not prefer the petition in time. In this view of the matter, we will condone the delay in filing this petition through jail.

3. The petitioner aged 17 at the time of occurrence and his brother Muhammad Hussain were tried on a charge under section 302, P.P.C. by the Special Court for Speedy Trials at Lahore for having committed the murder of Raza Ali, a student of M.A.O. College, Lahore. Vide judgment, dated 17-12-1988, the learned Special Judge for Speedy Trials acquitted Hussain alias Hussaina, brother of the petitioner, but found the petitioner guilty on the said charge and; thus, he was convicted and sentenced to death to pay a fine of Rs.10,000 or in default thereof to suffer R.I. for a terms of 2 years. He was also directed to pay compensation amounting to Rs.20,000 to the legal heirs of the deceased. Aggrieved by the said judgment, the petitioner filed an appeal,, which was dismissed vide judgment impugned.

4. The tragic occurrence took place on 9-4-1987 at 5.30 p.m. in the Jehangir Park situated at a distance of 1/2 furlong from the Police Station Shahdara Town. The F.I.R. in this case was lodged by Ilyas Mubariz, father of the deceased at 6.00 p.m. In the F.I.R. the complainant stated that he was a contractor and his deceased son was a student in the M.A.O. College, Lahore and was busy in preparing himself for taking the examination. On the fateful day at about 5-30 p.m. the complainant, Alamdar Hussain and Raheel Ahmed were talking with each other in a plot near the house of Alamdar Hussain. At that time the deceased, who was preparing himself for the examination in the park, was returning to the house with his books. As soon as the deceased reached towards the northern minaret of the Jehangir Tomb, from the southern street adjacent to the tomb, suddenly the petitioner armed with a churri alongwith another boy, who was empty handed, emerged. The petitioner allegedly in the sight of the complainant, -fell, down the deceased and then inflicted a churri blow on the right side of the chest of the deceased. According to the complainant, he alongwith his companion's rushed towards the scene of occurrence and tried to capture both the petitioner and his companion, but they succeeded to escape through the southern street. The deceased succumbed to the injuries at the spot. The motive for the occurrence, as narrated in the F.I.R., was that the petitioner was a vagabond and used to roam in the street where the house of the complainant was situated. The complainant and the deceased, on a number of occasions, had asked the petitioner not to roam in the street and 6/7 days before the occurrence. When restrained to roam in the street, a quarrel took place between the petitioner and the deceased and due to the intervention of Shahbaz Hussain and Malik Zulfiqar Ali, reconciliation took place, but while leaving the spot, the petitioner threatened the deceased with dire consequences.

5. During the investigation the police arrested the acquitted co-accused, real brother of the petitioner, Hussain alias Hussaina, as companion of the petitioner, who had launched the attack. In course of trial it was alleged that Hussain alias Hussaina, brother of the petitioner, had fired a shot with a pistol hitting the deceased although in the F.I.R. the brother of the deceased was not named nor the complainant had attributed any role to the companion of the petitioner. Rather it was stated that the companion was empty-handed. The learned Judges in the High Court considered this aspect, but did not pay attention to it on the ground that the complainant was under a shock and therefore, he omitted to mention the role played by said Hussain alias Hussaina, brother of the petitioner. It is not believable that the complainant would omit to mention the name of the brother of the petitioner although they lived in the same vicinity. The learned trial Judge by giving benefit of doubt acquitted him. This circumstance coupled with the question as to whether the other eye-witnesses, who have been relied upon, living at a considerable distance, had seen the occurrence, requires consideration. The other eye-witnesses prima facie seem to be chance witnesses and their explanation about their presence at the scene of occurrence also requires examination. In this view of the matter, we will grant leave to appeal to reappraise the evidence to ascertain as to whether the evidence in this case was correctly appreciated in consonance with the principles laid down by this Court to govern the appraisal of evidence. N.H.Q./M-281/S ??????????????????????????????????????????????????????????????????? ??????????? Leave granted.