1993 PLP 1323 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Mahmood Khan complainant and Rasab the convict have both by separate petitions sought leave to appeal against the judgment of the Lahore High Court dated 9‑12‑1991 whereby the conviction of Rasab and Shahamad under section 302/34, P.P.C. and the sentence of life imprisonment and fine was upheld by the High Court.

2. The prosecution case in brief was that Mahmood Khan complainant had purchased land from Rajada and the sale was pre‑empted by Shahamad and the suit was pending in the Court. Shahamad and his relatives were in possession of the land but it appeared that they were not paying Batai to Shera deceased whereupon about a year prior to the occurrence Shera had forcibly ousted them from the land. A case was got registered against such forcible ouster which was pending. The parties were also bound down in proceedings under section 107/151, Cr.P.C.

3. On the night between 5th and 6th September, 1987, the deceased alongwith Mahmood Khan his nephew (P.W.7) and Ahmad (P.W.9) the son of the deceased had gone to avail of their turn of water for the fields when they were attacked by the accused including Sultan absconder. They were fired at and numerous injuries were inflicted on the person of Shera resulting in his death. The report was lodged by Mahmood Khan (P.W.7). The trial Court found the motive established but not against Rasab convict. The trial Court observed "the motive of Rasab accused is mysteriously hidden. It appears that he had nothing personal. Whatever he did, he had done at the call of his friends, Shahamad and Sultan. He had no previous enmity with the complainant party".

4. The High Court while reappraising the evidence on the one hand considered the presence of Mahmood Khan as not made out at the spot. The exact observation made in the judgment is to the following effect:‑‑ "He was not present at the spot, otherwise his life would have been certainly attempted at. His testimony as to the main occurrence is, therefore, excluded from consideration." The High Court also observed as hereunder:‑‑ "However, in view of the admitted enmity over the dispute of land Ahmad cannot be believed explicitly unless there is corroboration." The High Court finally found the requisite corroboration as hereunder:‑‑ "The motive and the prompt F.I.R. are treated as the corroborative pieces of evidence to the statement of Ahmad about the eye‑witness account." 5: There being no motive against Rasab it could not be corroborative qua Rasab (petitioner in Cr.P.LA. No.183‑L of 1992): We consider, therefore, this (Cr.P.LA. 183‑L of 1992) to be a fit case where it needs further examination whether the required corroboration is forthcoming on the record against Rasab convict for which purpose we grant leave to appeal in Cr.P.LA.No.183‑L of 1992 filed by Rasab.

6. As regards the complainant's petition (Cr.P.LA. No.209‑L of 1992) which is directed against all the three accused who stood their trial, we find that no case is made out. Hence, leave to appeal is refused in Criminal Petition for Leave to Appeal No. 209‑L of 1992 riled by the complainant Mahmood Khan. N.H.Q./R‑213/S Order accordingly.