ABID HUSSAIN Versus THE STATE

ORDER

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑ Abid Hussain and his two brothers namely Mushtaq and Iftikhar, their Chacha Zad namely Ghulam Rasool and one Shaukat Ali were accused of the murder of Zafar Hussain deceased. In pursuance of a trial held by a learned Additional Sessions Judge at Olcara, Ghulam Rasool, Mushtaq, Iftikhar and Shaukat were acquitted by the said learned trial Judge, through a judgment dated 30‑10‑2000 by giving them benefit of doubt. Abid Hussain accused was however found guilty of the charge, was convicted under section 302(b), P.P.C. and was directed to suffer imprisonment for life on the said charge. He was also ordered to pay an amount of Rs.50,000 to the legal heirs of the deceased under section 544‑A, Cr.P.C. or to undergo six months" S.I. in default of the payment of the said compensation. Abid Hussain convict questioned his above noticed conviction and punishment before the Lahore High Court through Criminal Appeal No. 174 of 2000 which was dismissed through a judgment dated 26‑12‑2000 of the said Honourable Court. Hence this petition.

2. The occurrence which witnessed the murder of Zafar deceased took place on 14‑9‑1996 in the Katchery Chowk of Depalpur at about 9/9‑30 a.m. Shaukat Ali above‑mentioned reported the said occurrence to Police Station City Depalpur where F.I.R. No.208 of 1996 was registered with respect to the murder in question. The mother of the deceased namely Mst. Saeeda Bibi had information that the murder of his deceased son had in fact been committed at the instance of the said Shaukat Ali accused and thus he was also one of the culprits. The Investigating Officer not having recorded the version of the said Mst. Saeeda Bibi and not having acted accordingly, led the said Mst. Saeeda Bibi to the filing of a complaint which culminated in the trial resulting in the above‑noted decision of the learned Trial Court.

3. It was common ground between Shaukat Ali accused through the above‑mentioned F.I.R. (Exh.P.A./1) lodged by him at Police Station City Depalpur and Mst. Saeeda Bibi through the above‑mentioned complainant that the solitary fire‑arm shot which was fired at Zafar deceased had been shot by Abid Hussain petitioner. Mst. Saeeda Bibi had not herself witnessed the occurrence as she was in Lahore at the said time and, therefore, whatever had been alleged by her through the complaint as also through her statement before the learned trial Court as P.W.1 was what had been told to her by the eye‑witnesses. The ocular testimony was, however, offered at the trial by Ghulam Rasool P.W.2 and .his brother Muhammad Hussain P.W.3. Both of them claimed to have been present at the place of occurrence because they were both involved in some criminal cases which were fixed for hearing in the Court of Mr. Muhammad Aqil Chohan, a learned Judicial Magistrate/ Civil Judge, Depalpur on the date of occurrence i.e. on 14‑9‑1996. They were cross‑examined at length regarding the said criminal cases and about the factum the said cases being fixed before the above‑mentioned learned Trial Court on the day of occurrence. The defence had remained un‑successful in creating any dent in the said assertion of Ghulam Rasool and Muhammad Hussain P.Ws. They were thus natural witnesses of the occurrence in question. Nothing could be brought on record and in fact not even a suggestion could be made to these two witnesses that they had any reason or motive to falsely implicate Abid Hussain petitioner in the murder of Zafar deceased or to maliciously substitute him for the actual offender. Needless to mention here that the occurrence in question had taken place in broad daylight in the crowded Katchery Chowk which place of occurrence was only a few yards from the local Courts. In this view of the matter it is not possible for us to find that the said occurrence could have gone unwitnessed or the assailants could have escaped unidentified. As has been mentioned above nothing could be brought on record to indicate any reason on the part of the P.Ws. for sparing the actual culprits and instead implicating the petitioner in the crime in question. The two, eye‑witnesses are thus not only natural witnesses of the occurrence in question but are even independent witnesses of the same. Their testimony inspires confidence.

4. The motive alleged by the complainant/prosecution that the petitioners were the rival claimants to the Mutwaliship of the shrine of which Zafar was the Gaddi‑Nasheen and that a civil suit was also pending between the parties to the said effect, stood sufficiently proved on record. There was in fact an implied admission on the part of the defense with regard to the pendency of the said civil suit with respect to the said issue.

5. Having examined the record and having heard the learned counsel for the petitioner at length we find that no exception could be taken to the conviction and punishment of Abid Hussain petitioner or to the reasons which had led the learned trial Judge and the Honourable Lahore High Court in reaching the above‑noticed conclusions. This petition is therefore, dismissed and leave refused.

N.H.Q./A‑276/S

Leave refused.