MUHAMMAD RAFIQUE Versus STATE

ORDER

1. SAIDUZZAMAN SIDDIQUI, J.‑‑ ‑The petitioner is seeking leave to appeal against the judgment of Lahore High Court dated 19‑10‑1994 whereby the learned Judges of the Division Bench while maintaining the conviction of the petitioner under for life with benefit of section 382‑B, Cr. P. C.

2. The petitioner alongwith his two brothers Nazir and Naveed alias Najja accused petitioner to death having found him guilty of the murder of Mubarak Ali under section 302, P.P.C. He was also sentenced to tine of Rs.10,000 or in default thereof to undergo R.I. for two years. A sum of Rs.20,000 was also ordered to be paid as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C.

3. The petitioner has been convicted in the case on the basis of the ocular testimony furnished by Ghulam Farid P.W.6 and Nawab P.W.7. Both the witnesses in the case were closely related to the deceased. In seeking leave to appeal against the judgment of the High Court, the learned counsel contended that no crime weapon was recovered from any of the accused, although in the F.I.R., the petitioner was stated to be armed with carbine while co‑accused since acquitted namely, Nazir Ahmed was armed with pistol and Naveed was allegedly armed with .12 bore gun. It is also contended by the learned counsel that the recovery has been shown from Nazir Ahmed of a carbine while in the F.I.R. he was stated to be armed with pistol. Main thrust of the arguments of the learned counsel for the petitioner is that P.Ws. in the case which furnished ocular testimony against the petitioner admitted their enmity and in such circumstances the conviction could not be based on the uncorroborated testimony of such inimical witnesses following the rule of safe administration of justice criminal cases involving capital punishment. The learned counsel specifically relied on the following statement made by 'P.W. Ghulam Farid in cross -examination:‑

4. "The case of murder of Faqir Muhammad father of the accused was registered against 10 persons namely, Ghulam Farid myself, Mubarik, Aslam, Faqir Hussain, Rasheed, Sinawar, Jabar, Riasat, Riaz and Ashiq. Sinawar and Jabar are my sons. Aslam and Rasheed accused in the murder case of Faqir Muhammad are P.Ws. in this case. Nawab P.W. is my son‑in‑law and is also related to me from Baradri. Aslam P.W. is not related to me. It is incorrect to suggest that he is my nephew. Rasheed P. W. is my real brother. Mst. Hakan Bibi is the sister of my son‑in‑law Nawab and Miraj Din P. W. is her husband. "

5. In view of the admitted enmity between the prosecution witnesses and accused/petitioner in the case, we are inclined to grant leave to appeal to consider whether the testimony of 2 eye‑witnesses in the case found sufficient corroboration from any other independent piece of evidence in the case to sustain the conviction on the capital charge in view of the principle of safe administration of justice in such cases.

6. N.H.Q./M.3186/S Leave granted.