AFTAB MAHMOOD Versus ISHTIAQ

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.- -Leave to appeal has been sought by a complainant in a murder case from judgment dated 28-3-1984 of the Lahore High Court; whereby the appeal of respondents Nos.1 and 2 against conviction under Section 302 PPC and sentences of imprisonment for life and fine, was partly allowed and Ishtiaq Ali respondent was acquitted while Asmat Ali respondent was convicted under Section 304, Part-I with sentence of 10 years R.I. plus fine.

2. The prosecution case was that the accused/ respondents who were brothers intense had a complaint that Shahid Mahmood deceased had evil intentions towards their sister. They, therefore, having armed themselves with daggers inflicted injuries on him and killed him. The defence plea raised by Asmat Ali respondent was that he saw his sister Fauzia getting down from a wagon. When she was walking towards her house the deceased started chasing her. At one stage he also tried to molest her and uttered the words: Mairi Jan Kahan Ja rehi hay. Seeing this he lost his temper picked up a Chhuri from a nearby Rehri and injured the deceased. Ishtiaq Ali respondent however had pleaded denial with the assertion that he was not present at the spot; rather, he was confined to bed or account of operation for appendicitis.

3. Learned trial Court found both the accused respondents guilty and convicted them, as noted above.

4. The High Court after consideration of the evidence came to the following conclusions:

5. "I have no hesitation in holding that the defence version is more plausible. It is more convincing when it is examined in juxtaposition with the prosecution case. The doctor who appeared in defence was an independent witness. There is no reason to disbelieve him. Nothing has been brought on record to suggest that his services were hired by the defence specially to depose in favour of the appellants. His evidence finds support from the observation made by the trial Judge regarding surgical incision mark on the person of Ashtiaq.

6. Similarly, I have no reason to disbelieve the evidence of Fauzia. She would not enter the witness-box unless she had been teased. Even otherwise, it is the prosecution's own case that the deceased was after her."'

7. Learned counsel has tried to show that the High Court has not properly appreciated the evidence.

8. After hearing him, we are satisfied that the case does not involve misreading of evidence nor any material part thereof has been ignored. The conclusions drawn by the High Court were not impossible. They are also supported by material on record here is no force in this petition and the same is dismissed.

9. M.I./A-141/S Petition dismissed.