1990 PLP 1277 (SCMR)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑Leave to appeal has been sought by a convict in a murder case; against the dismissal by the High Court, of his appeal; whereby his conviction under section 302, P.P.C. with award of sentences including life imprisonment, was upheld. The facts as briefly narrated in the memorandum submitted in this behalf by the petitioner's A.O.R. are that a day prior to the day of occurrence Muhammad Haroon deceased was coming back with some fodder for his cattle when the three accused in this case; namely, the petitioner, Dilawar and Muhammad Ishaq confronted him. They were found at such a place that Muhammad Haroon had to tell them that the women‑folk of the village suffered embarrassment and other harm on account of their conduct, therefore, they should desist from it. On this an altercation took place between the two sides. Muhammad Haroon grappled with Sadaruz Zaman petitioner and gave him kick blows. On the day of occurrence‑‑‑23‑11‑1983, at "Degar Qaza Vella" Subedar Faqir Muhammad, complainant and his deceased son Muhammad Haroon were going to their house from the flour mill alongwith a bag of wheat‑flour which they were carrying on the back of a she‑donkey. The said three accused overtook them. Dilawar and Muhammad Ishaq caught hold of Muhammad Haroon deceased by his arms while Sadaruz Zaman petitioner fired at him 3 shots with a pistol. The deceased died as a result thereof. The plea of the defence was denial. Both the Courts below accepted the prosecution evidence as reliable and convicted the petitioner. The other 2 accused were acquitted by extension of benefit of doubt. Learned counsel for the petitioner raised two contentions. One, that acquittal of the 2 co‑accused of the petitioner against whom the same evidence was examined by the trial Court, should have re‑acted on the question of the guilt of the petitioner also. Accordingly, the eye‑witnesses should not have been believed against the petitioner either. Secondly, the learned counsel contended that the pistol having been recovered from the petitioner there was also recovery of 2 empties and one lead piece. All these articles were taken into possession for purpose of sending them onward so as to seek the opinion of the Ballistic Expert and subsequent production thereof as supporting evidence against the accused including the petitioner. But as stated by the learned counsel the Investigating Officer failed in his duty and no such evidence was brought on record. This, as argued by the learned counsel, would have furnished the necessary corroboration against the petitioner. As is apparent from the prosecution case the allegation against the 2 acquitted accused was of general type. They were accordingly acquitted on the extension of benefit of doubt. That does not mean that they were falsely implicated. The extension of benefit of doubt would not exclude the possibility that they or any one of them might also have been involved in the matter. See the case of Sher Hassan v. The State (PLD 1959 SC (Pak.) 480). In such like cases, accordingly, the eye‑witnesses do not suffer any serious discredit. However, both the learned Courts below having carefully scrutinized the evidence we have not been able to find any infirmity regarding the appraisal thereof either in law or in principle. Accordingly, leave to appeal is refused. N.H.Q/S-536/S?????????????????????????????????????????????????????????????????????????????????? Leave refused.