1987 PLP 724 (SCMR)

Nemat Khan, Advocate Supreme Court and S.M. Latif Khosa, Advocate Supreme Court (absent) and Iqbal A. Qureshi, Advocate‑on- Record for Petitioners (in Crl. P.L.A. No. 73 of 1981). S. Munir Hussain, Advocate Supreme Court for the State (in Crl.P.L.A. No. 73 of 1981). Date of hearing: 1st February, 1987. MIAN BURHANUDDIN KHAN, J.‑‑Petitioner Sikandar Hayat, by Cr.P.S.L.A. No. 59 of 1981, seeks leave to appeal against the judgment and order of the Lahore High Court, dated 3‑12‑1980 whereby the learned High Court Judge refused to enhance the sentence passed against the respondents Zafar Ali and Siddiq Ali from life imprisonment to death under section 302 read with section 34, P. P. C . ; while petitioners Zafar Ali and Siddiq Ali by Cr.P.L.A. No. 73 of 1981, seek leave to appeal against the same impugned judgment of the learned High Court, dated 3‑12‑1980 dismissing their Criminal Appeal No. 893 of 1976 and confirming the sentence of life imprisonment plus fine, awarded to them by the learned Sessions Judge, Multan vide his judgment, dated 18‑6‑1976 for committing the murders of Sultan Khan and Umar Hayat deceased.

2. Zafar Ali and Siddiq Ali accused /petitioners were charged vide F.I.R. Exh.P.J. lodged by Muhammad Ramzan complainant /P. W. at Police Station, Shuja Abad for having committed the murder of their cousin Sultan Khan and his son Umar Hayat at 7‑30 a.m. on 12‑10‑1973 within the vicinity of Basti Langra, village Soman, Police Station Shuja Abad, District Multan. Motive for the crime stated in the F.I. R. is that one Ghulam Hussain had constructed his Ihata on Shamilat Deh adjoining the houses of Sultan Klan deceased, Muhammad Ramzan P.W. and both the accused; petitioners in the same village. The Complainant/ P. W. Muhammad Ramzan and deceased Sultan Khan obtained the said Ihata from Ghulam Hussain after providing alternate accommodation to him. They partitioned the Ihata between themselves and took possession accordingly. The accused/ petitioner Zafar Ali demanded share out of the said Ihata which demand was not conceded to by Sultan Khan deceased and Muhammad Ramzan P.W. who considered themselves to be the sole owners of the Ihata. Annoyed over this the above‑named accused/ petitioners committed the murders of Sultan Khan and his son Umar Hayat.

3. Ghulam Ali P. W.12 (S. I.) arrested the accused /petitioners on 15‑10‑1973. Gun P.14 alongwith its licence P.17 were recovered from Zafar Ali, while Siddiq Ali accused /petitioner produced revolver P.16 alongwith its licence P.18 which were taken into possession by the investigating Officer.

4. Learned counsel submitted that the prosecution, in the present case has failed to prove the charges against the accused/ petitioners beyond reasonable doubt. The conviction of the accused/ petitioners was not sustainable from the evidence available on the record; that the learned trial Judge as well as the learned appellate Court have misread the evidence in holding the accused /petitioners to be guilty of the offences with which they were charged; that the prosecution had failed to prove the motive against the accused /petitioners; that Ghulam Hussain, from whom the Ihata, the bone of contention, was obtained in exchange has not been produced by the prosecution and the learned Courts below have not drawn adverse inference which necessarily followed; that beside this neither the complainant Muhammad Ramzan nor the deceased Sultan Khan could establish their right to the aforesaid Ihata nor its evacuation has been proved. He submitted further that the ocular account given by Muhammad Ramzan P. W.10, a cousin of Sultan Khan deceased and Ghulam Sarwar P.W.11, who is also connected with them, is not only interested but discrepant on material points; that an independent witness namely Hafiz Abdur Rehman had been given up by the prosecution, and, therefore, adverse inference has to be drawn against the prosecution for having failed to produce the said witness in the case, and finally, it was submitted by the learned counsel that recovery of the gun and revolver could not be availed by the prosecution because the licensed revolver of Siddiq Ali accused /petitioner has not been connected with the empties because the empties were found in the chamber of the revolver and were not collected from the spot; and as far as the matching of Zafar Ali's gun with the crime empty is concerned, it is disputed by the defence, and, therefore, the requisite corroboration is not found in the recoveries either; and so also the medical evidence does not advance the case of the prosecution as the injuries on the person of the two deceased, could be caused with a gun and there was no injury caused by a bullet fired by a pistol.

5. We have examined the contentions raised by the learned counsel and find that these are devoid of any substance. It is a broad day occurrence and the accused/ petitioners have been charged directly for firing with two type of weapons at the deceased effectively. Testimony of the eye‑witnesses cannot be discarded in this case as they, though related, had no previous enmity with the accused/ petitioners. Recovery of the weapons of offence has been believed by the two Courts below and we do not consider that there is any discrepancy in this behalf. The medical evidence reveals that Sultan Khan deceased had four injuries, two of which were of the dimension of " x " and the fourth injury was of the dimension of " x . Similarly, on the body of Umar Hayat, deceased there was an injury of the dimension of " x " and another of the dimension of " x '' This shows that two types of fire‑arm were used in the commission of the crime. We find no merit in Cr.P.L.As. Nos. 59 of 1981 and 73 of 1981. Leave refused. Benefit of section 382‑B, Cr.P.C. allowed to the abovenamed two accused/ petitioners. Both the abovementioned petitions dismissed. M. I. /S‑9/S Petitions dismissed.