MUNAWAR HUSSAIN vs ALLAH DAD and 2 others

ORDER

1. ' JAVID IQBAL, J.--These three petitions for leave to appeal are connected and are directed against the judgment of the Lahore High Court, Lahore, dated 28th April, 1985 whereby Allah Dad and Muhammad Siddique respondents were acquitted. Criminal Petition No,258 of 1985 has been filed by Munawar Hussain complainant petitioner and is directed against the acquittal of Allah Dad and Muhammad Siddique respondents. Criminal Petition No,259 of 1985 has also been filed by the same petitioner and it is against the dismissal of his criminal revision by the High Court for enhancement of the sentence of Allah Dad and Muhammad Siddique respondents awarded by the trial Court to death. Criminal Petition No,260 of 1985 is likewise filed by the same petitioner and is against the acquittal of three co-accused namely Muhammad Ashraf, Ramzan and Nazir Ahmad respondents. Since these petitions are connected and are directed against the same judgment these are being taken up together.

2. ' Briefly the facts are that Allah Dad, Muhammad Siddique, Muhammad Ashraf, Ramzan and Nazir Ahmad alongwith Ahsan were charged for offences under section 307/302/148/149, P.P.C. Ahsan became an absconder and is not in the picture at present. The trial Court acquitted Muhammad Ashraf, Ramzan and Nam Ahmad but convicted Allah Dad and Muhammad Siddique under section to imprisonment for life plus fine. The two convicts filed appeal before the High Court whereas the petitioner filed criminal revision for enhancement of the sentence of Allah Dad and Muhammad Siddique to death and another criminal revision against the acquittal of the aforesaid three co- accused. But the High Court vide the impugned judgment not only dismissed the criminal revisions but accepting the appeal of Allah Dad and Muhammad Siddique acquitted them also.

3. ' The deceased in this case is Lal Khan. The occurrence took place on 29th May, 1976 at 8 a.m. In Tehsil Phalia District Gujrat. F.I.R. Was lodged by Lal Khan deceased while he was still alive at 2-30 p.m. On the same day in the civil hospital which was treated as a dying declaration after his death.

4. The recoveries in this case have not been believed. The eye-witnesses are three namely Allah Ditta, Mirza Muhammad Sadiq and Muhammad Sabir. The motive is that about one and a half year before there was a fight between the parties in which the absconder accused was injured.

5. Accordingly a case was registered against the deceased, Allah Ditta P.W. And two other persons and the same was pending trial when the present occurrence took place. According to the prosecution version the deceased alongwith the three eye-witnesses had gone to collect subscription for a school building. As they reached near the garden of one Ali Muhammad the accused party who were lying in ambush appeared. Ahsan absconder fired at the deceased hitting him on the right thigh. Then Allah Dad fired the second shot also hitting the deceased on the right thigh. The other assailants fired at the witnesses and the deceased but none was hit.

6. Thereafter they ran away. According to the medical examination the deceased had firearm wounds on the right thigh, another firearm wound 1" above the said injury and a firearm wound or exit over the middle of back of right thigh. According to the doctor the death had resulted due to shock and haemorrhage. We have perused the relevant portions of the judgment of the trial Court as well as that of the High Court. The trial Court seems to have relied upon the dying declaration and found that the ocular testimony had corroborated it. Similarly the trial Court had accepted the motive but the recoveries had not been believed. It is on this basis that it proceeded to convict and sentence Allah Dad and Muhammad Siddique but acquitted the three co-accused for the reason that recoveries had not been believed and that no one was alleged to be hit at their hands. The High Court did not rely on the dying declaration because the three acquitted co-accused were not named in it and it had also been disbelieved due to delay. Furthermore the ocular testimony was found to be in conflict with the medical evidence and although the motive was relied upon, the recoveries were not believed. There evidently is a background of enmity between the parties. The ocular testimony had been found to be intrested. The reasoning of the High Court is that if it could not be relied on in respect of the three acquitted co-accused then with regard to the remaining two it would likwise not he safe to rely upon it, particularly when it was in conflict with the medical evidence. Furthermore the finding of the High Court is to the effect that it is also not consistent with the dying declaration.

7. ' Learned counsel for the petitioner attempted to argue before us that the ocular testimony should have been believed and the trial Court was correct to arrive at the conclusion that it found corroboration through the dying declaration. In the light of the evidence on record we do not find any force in these arguments.

8. After perusal of the judgment of the High Court we are of the considered opinion that the conclusions arrived at by the learned Judge were correct and proper and no inteference is called for. The result is that we do not find any substance in all these three petitions namely Criminal Petitions Nos. 258, 259 and 260 of 1985, which are accordingly dismissed.