GHULAM MUSTAFA Versus STATE

ORDER

SAAD SAOOD JAN, J.‑ ‑‑This is a petition for Special Leave to Appeal from the judgment dated 9‑5‑1992 of the Lahore High Court, upholding the conviction of the petitioner on a charge under section 302, Pakistan Penal Code, and confirming the sentence of death imposed upon him by the Additional Sessions Judge, Gujranwala.

2. The occurrence took place on 5‑3‑1987 at 3‑30 p.m. in Botala Sharm Singh near Gujranwala City. Bashir Ahmad, deceased, was a tonga driver. According to the prosecution, at the relevant time, he was passing by the scene of occurrence on his tonga with some fares including Nazir Hussain (P.W.5). Muhammad Siddiq, co‑accused was standing by the side of the road. He threw his cycle in front of the tonga. The deceased stopped his tonga, got down and started running to save his life. A Suzuki Pickup was parked in the vicinity of the place of occurrence. The petitioner along with three other persons, namely, Nasarullah, Ijaz Ahmad and Ghulam Nabi got out of the Pickup. The petitioner and Nasarullah were armed with carbines, Ijaz Ahmad was carrying a .32 bore revolver and Ghulam Nabi had a .12 bore shot‑gun. The petitioner fired at the deceased who was hit in the stomach. His companions also indulged in some ineffective firing. Thereafter, they all escaped in the Pickup. The deceased succumbed to his injuries after a short while.

3. The motive for the occurrence was stated to be the murder of the father of the petitioner. He was killed about 1‑3/4 years prior to the present occurrence. The deceased was named by the complainant party as one of his assailants. However, the police found him innocent and did not challan him. He was on bail at, the time of his death.

4. The occurrence was reported at Police Station, Saddar, Gujranwala, which was six and a half miles away, on the same afternoon at 4‑00 p.m. by Muhammad Sharif (P.W.4), brother‑in‑law of the deceased.

5. After investigations the police challaned five persons, namely, the petitioner, Siddique, Nasarullah,. Ghulam Nabi and Ijaz Ahmad. They all pleaded not guilty and alleged that they had been falsely implicated.

6. The trial Court acquitted all the accused except the petitioner who was found guilty. On appeal and reference the High Court maintained his conviction and sentence. The petitioner seeks leave to appeal from the judgment of the High Court.

7. In support of this petition it is stated that the case of the prosecution against the petitioner was founded entirely on ocular testimony provided by Muhammad Sharif (P.W.4) and Nazir Hussain (P.W.5). The trial Court had not believed their evidence in respect of four persons who were tried along with the petitioner. In the circumstances, their evidence could not be relied upon to convict the petitioner on a capital charge without independent corroboration which was not available in this case.

8. The contention raised in support of this petition requires examination. Leave to appeal is granted.

N.H.Q./G‑462/S Leave granted.