ISMAIL AND Another vs The STATE

1. HAMOODUR RAHMAN, C. J.-The two petitioners in this case were put up for trial along with three others for the murder of one Najeeb Ullah in the morning of the 26th of May 1971, in Chak No. 106/D.

2. B. P. S. Yazman, District Bahawalpur. The prosecution story is that while the deceased was working in his fields along with his son and his servant tile accused persons came there and shouted that he would not be spared alive. On hearing this the deceased started running away from there but he was chased for a distance of about one killa by Abdul Ghafoor, Isa and Ghulam Rasul who were unarmed. They ultimately caught hold of him. At this stage Ismail who was armed with a barchhi came there and hit the deceased with the barchhi on the chest. At this stage the servant Abdullah came to the rescue of his master but he too was attacked by the accused armed with the barchhi and the accused Ibrahim armed with a sota. The latter escaped death, because some residents of the village who were passing by rushed to the spot on hearing the alarm raised by the son and the widow of the deceas--ed. The latter, it appears, had come there carrying meals of her menfolk working in the fields. On seeing these witnesses, the accused persons fled away.

3. The trial Court convicted all except Ibrahim son of Isa under section 302/149, P. P. C. But Ibrahim was convicted only under sections 148 and 323/149, P. P. C. For the attack on Abdullah with a sota.

4. Those convicted under section 302/149, P. P. C. Were sentenced to transportation for life.

5. On appeal, the Lahore High Court gave the benefit of doubt to Isa, Ghulam Rasul and Abdul Ghafoor who were not armed with any weapon and acquitted them. So far as the present petitioners Ismail and Ibrahim are concerned, the High Court took the view that they were responsible for their individual acts as they could not be said to be members of an unlawful assembly or to be acting in furtherance of the common object of that assembly and so they were convicted. Ismail alone was held respon--sible for the murder of Majeeb Ullah and the barchhi blow inflicted on his servant Abdullah. He was, therefore, convicted under sections 302 and 326, P. P.

6. C. Only and his sentences on those counts were maintained.

7. Ibrahim petitioner was found guilty under section 323, P. P. C. Only for giving sota blows to Abdullah and his sentence under the said section awarded by the trial Court was maintained.

8. They have now come up for special leave to appeal.

9. The first contention which has been raised by the learned counsel appear--ing in support of this petition is that the only unrelated witness in this case is Abdullah and his evidence, according to the learned counsel, was inadmis--sible as it was based purely on hearsay. We have with his help examined the evidence of Abdullah but find no substance in the contention of the learned counsel.

10. All that this witness said was that he was not familiar with the names of the accused at the time of the incident. The name was given to him later. This does not mean that he was not in a position to recognise the accused persons.

11. Learned counsel next contends that if it be so that he was not familiar with the accused persons, then his evidence was equally unreliable, because, the witness was not put up at any test identification parade to identify the accused. This was not, in our opinion, necessary, because the witness did not say that he did not know the accused persons but merely said that he was not familiar with their names at the time of the incident. It is only where the accused are seen for the first time at the place of the incident by a witness that it becomes necessary to put up such a witness at a test identification parade. If an ac: used. Is also easily known by face although not by name, it is unnecessary to put up such a witness to a test identification, because at the parade he only identifies by face and not by name.

12. We have examined the evidence with care with the assistance of the learned counsel but are unable to say that the appreciation of evidence by the High Court suffers from any misreading or non-consideration of any material evidence. In the circumstances, we do not think this to be a fit case in which we should grant leave just for re-examining the evidence.

13. This petition is accordingly dismissed.