1988 PLP 529 (SCMR)

SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the judgment of the Lahore High Court whereby the conviction and sentences of Abdul Aziz and Akbar Ali, respondents, on a charge under section 302, read with section 34, of the Pakistan Penal Code, recorded by Sessions Judge, Sheikhupura, were set aside and they were acquitted. The petitioner is the son of Nazir Ahmad who was alleged to have been killed by the respondents.

2. This petition is barred by 44 days. The petitioner has filed an application for condonation of the delay. The judgment was delivered on 8-7-1979. The petitioner applied for copy of the judgment on 17-7-1979. The copy was made ready for delivery on 20-6-1984. He received it on 5-8-1984. To discover the reason for such a long delay in the preparation of a copy, we called the official incharge of the copying branch. He stated that the record had not been made available to his branch till May 1984. The petitioner has produced before us the receipt which was given to him by the copying branch at the time he submitted the application for the copy. It contains numerous endorsements showing that the petitioner had been regularly visiting the branch for obtaining the copy. He was not given any specific date on which the copy would be ready for delivery. The petitioner does not belong to Lahore. Coming to Lahore for about five years to obtain the copy must have tired him out. In the circumstances, we think that a case has been made out for allowing him credit for the period intervening between the date on which the copy was made ready for delivery and the date on which he obtained it. If this period is excluded, the petition would be within time. The y. delay is condoned.

3. There was a dispute between the parties over some land which made them hostile towards each other. According to the prosecution, on 29-10-1977 at 11 a.m. Nazir Ahmad, deceased, and his son got down from a bus at Kalalawala. Hasan Din, father of respondent No.1 and one Barkat were present there. The deceased and Muhammad Latif on the one side and Hasan Din and Barkat on the other had a scuffle which resulted in injuries to all the participants therein Hasan Din and Barkat left the bus-stop after issuing some threats to the deceased and Muhammad Latif. A few hours later, that is, at 2 P.m., the deceased and Muhammad Latif went to the bus-stop at Dhankey in order to catch a bus for the hospital. As they were waiting for the bus, Abdul Aziz and Akbar, respondents, together with Sardar Ali came there. Abdul Aziz had a dagger, Akbar was armed with a knife while Sardar Ali was holding a Dang. They raised lalkaras saying that the deceased should not be spared. The deceased started running to save himself. He took refuge in the Haveli of one Ramzan. The respondents and Sardar Ali chased him. They entered the Haveli, felled the deceased and attacked him with their weapons. Sardar Ali joined them in giving Dang blows to him. The deceased died at the spot. A number of persons gathered at the scene of occurrence and captured the respondents. Sardar Ali, however, managed to run away. Muhammad Latif went to Police Station Sharaqpur which was 7 miles away and lodged the F.I.R. at 3 p.m.

4. After registering the case S.I. Fayyaz Muhammad Khan reached the place of occurrence. He arrested the respondents and took into possession their weapons which were earlier taken away from them by those who had captured them.

5. The post-mortem examination of the deceased was performed by Dr. Abdul Mujeeb Khan who found eleven injuries on his body. These included of four stab wounds and two incised wounds.

6. The respondents pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceased. They alleged that Muhammad Latif and the deceased had a fight with Hasan Din and Barkat during the course of which the latter received injuries and Nazir Ahmad died.

7. Sardar Ali was also tried alongwith the respondents but he was acquitted by the trial Court.

8. In support of its case at the trial, the prosecution examined Muhammad Latif and Muhammad Ashraf as eye-witness of the occurrence. Faqir Muhammad who had allegedly helped in capturing the respondents, was also produced but he did not support its case and was declared hostile. It may be mentioned that Muhammad Ashraf was the brother-in-law of Muhammad Latif. The trial Court believed the eye-witnesses. However, the High Court took a different view in the matter. It held that there was only one incident in which Muhammad Latif and the deceased on the one side and Hasan Din and Barkat on the other took part. It also did not accept the claim of the prosecution that the respondents were captured at the spot.

9. In support of this petition it is urged that the High Court erred in disbelieving the testimony of Muhammad Latif and Muhammad Ashraf which received confirmation from the fact that both respondents were arrested at the spot. Even though Faqir Muhammad turned hostile at the trial, yet the fact that the investigating officer had found both respondents at the scene of occurrence when he reached there was sufficient to support the assertion of the prosecution that they were captured at the spot.

10. The contention raised on behalf of the petitioner needs examination. Leave to appeal is granted. Let bailable warrants in the sum of Rs.25,000 with two sureties each in the like amount, returnable to the District Magistrate, Sheikhupura, issue against Abdul Aziz and Akbar Ali, respondents. S.Q./M-324/S? ?????????????????????????????????????????????????????????? Leave granted.