SAAD SAOOD JAN, J.---The respondent, Muhammad Younis, was convicted by the Additional Sessions Judge, Sheikhupura, of offences under sections 302 and 452, Pakistan Penal Code, for causing the death of Muhammad Mansha, deceased, and committing trespass into his house. In respect of the offence under section 302 he was sentenced to death, in addition to payment of fine.
Together with him his brother, Muhammad Yousif, was tried on the charge of abetment but he was acquitted. On appeal and reference, the High Court acquitted the respondent. The mother of the petitioners, Mst. Saleh Bibi filed this petition to call in question the acquittal of the respondent. She has since died and her legal representatives are now pursuing the petition.
2. Sometimes in 1978, the paternal uncle of the respondent was murdered. For causing his death the deceased and his brothers were challaned. Later, the parties effected a compromise and the alleged assailants were acquitted by the Court of Session. A few years thereafter the deceased went to Saudi Arabia and obtained employment there. He returned to Pakistan five or six months prior to his death.
3. The occurrence took place on 28-5-1988, at 8-30 p.m., in the house of the deceased in Mohallah Ahmadpura of Muridke. At the relevant the the deceased was sitting in the courtyard of his house together with his mother, Mst. Saleh Bibi (P.W.7) and brother, Muhammad Ashiq (P.W.8). It was alleged by the prosecution that the respondent trespassed into the house with a revolver and after raising a Lalkara to the effect that he had come to take revenge for the murder of his uncle, he started firing at the deceased. The deceased was badly wounded. He was taken to the Mayo Hospital, Lahore, where he succumbed to his injuries. The occurrence was reported to the police by Mst. Saleh Bibi at the hospital on the following day at 9-15 a.m.
4. The respondent pleaded not guilty at the trial and alleged that he had been falsely implicated on account of suspicion. He did not lead any evidence in his defence.
5. The case of the prosecution against the respondent was mainly based on the ocular accounts furnished by Mst. Saleh Bibi (P.W.7) and Muhammad Ashiq (P.W.8). The trial Court accepted their testimony as substantially true and convicted the respondent. However, the High Court rejected their evidence mainly on the ground of delay in the lodging of the first information report.
6. In support of this petition it is inter alia contended that both Mst. Saleh Bibi (P.W.7) and Muhammad Ashiq (P.W.8) were natural witnesses as they lived in the very house where the deceased was fired at. The assailant had come very close to the deceased before opening fire as the blackening on the wounds of entry on the body of the deceased indicated. Thus, the eye- witnesses had sufficient opportunity to have a good look at the assailant with whom they were well acquainted. The fact that the eye-witnesses were present at home at the relevant the found support from the fact that it was they who immediately rushed him to the hospital. There was hardly an occasion for them to substitute the real assailant with another person, particularly when there had been no pleasant incident between the parties for about nine years.
7. As stated above, in disbelieving the eye-witnesses the High Court was mainly influenced by the fact that there had been delay in the lodging of the first information report. On behalf of the petitioners it is stated that the eye-witnesses were to busy in attending upon the deceased and they did not have the the to approach the police before rushing to the hospital. Apart from that the delay in getting the case registered could hardly detract from the credibility of the eye--witnesses who had no reason to falsely implicate the respondent in the case.
8. The contentions raised in support of this petition need examination. Leave to appeal is granted.
9. Warrants of arrest bailable in the sum of Rs.25,000 with to sureties in the like amount returnable to the District Magistrate, Sheikhupura, to issue against the respondent.