1987 PLP 1444 (SCMR)

NASIM HASAN SHAH,J.‑‑This appeal is directed against the judgment of a Division Bench of the Lahore High Court dated 6‑7‑1982 whereby the order of acquittal passed against the appellants was set aside and instead they aside convicted under Section 302 PPC and Nawab, appellant No.l, awarded the sentence of death, while Ahmad Khan and Khan Muhammad, appellants Nos. 2 & 3 sentenced to imprisonment for life alongwith fines and other lesser sentences under Section 307 PPC, The case of the prosecution briefly was that on 12‑12‑1974 Muhammad Aslam P.W. alongwith his father Muhammad Nawaz deceased had gone to the District Court, Mianwali to appear in a case wherein Muhammad Aslam P.W. was standing trial for the murder of one Rustam Khan. In this trial, besides Muhammad Aslam, his brother Ahmad Khan and the son of Bghadur (P.W.7), namely, Muhammad Qasim were also involved. Out of these accused, Muhammad Aslam P.W.8 alone was on bail and, therefore, was sitting out in the compound of the Court premises waiting for the case to be called. His deceased father (Muhammad Nawaz) was also with him. Bahadur P.W.7 the father of Qasim accused (who is first informant in the case) and Fateh Sher P.W.9, as also one Sher Muhammad (not examined), were also present in the Court premises at a short distance from Muhammad Aslam P.W. and his father. At this stage, all the three appellants, namely, Nawab, Ahmed Khan and Khan Muhammad alongwith the acquitted accused Nawaz appeared at the scene. Nawab and Ahmad Khan appellants and the acquitted co‑accused Nawaz were armed with .12 bore pistol whereas Khan Muhammad appellant was armed with a knife. Nawab appellant fired two shots effectively at Muhammad Nawaz deceased, whereupon he started running. Muhammad Aslam P.W.8 caught hold of Nawab appellant where upon. Ahmad Khan fired upon him, but ineffectively. At the same time Khan Muhammad (appellant) advanced towards him and inflicted knife blows. On being so injured Muhammad Aslam, P.W.8, let go Nawab appellant and after being released he fired at Muhammad Aslam P.W. whereupon he fell down. Bahadur P.W. and the witnesses Fateh Sher and Sher Muhammad (ultimately not examined raised an alarm on which the appellants alongwith Nawaz co‑accused fled away, Muhammad Nawaz died at the spot while Muhammad Aslam was removed to the District Headquarters Hospital, Mianwali. The F.I.R. (Ex.PD) was lodlZed on the statement of Bahadur P.W.7 at the Police Station, Saddar, Mianwali. Bahadur P . W . 7 in the said F . I . R . disclosed that about six months before the present occurrence Rustam brother of Nawab appellant and Nawaz co‑accused was murdered. In connection with this incident, Muhammad Aslam P.W., his brother Ahmad Khan and his maternal uncle Qasim were challaned. Muhammad Aslam was enlarged on bail while two accused of that case remained confined in the judicial lock‑up. On the day of this occurrence Muhammad Aslam P. W. accompanied by his father Muhammad Nawaz deceased as well as Fateh Sher, Muhammad Sher and the complainant came to Mianwali to attend the Court of the Committing Magistrate in the aforesaid case. They were sitting in the litigants' shed in the premises of the District Courts, Mianwali when at about 8 a.m. all the four accused, namely, Nawaz, Nawab, Ahmad Khan and Khan Muhammad suddenly arrived at the scene. The first three accused were armed with pistols while the fourth was armed with a knife. Nawaz accused initiated the aggression and fired at the deceased who was hit by his shot and ran for safety after sustaining injuries. Muhammad Aslam P.W., however, caught hold of Nawab accused whereupon Ahmad Khan accused fired a pistol shot at him. At the same time Khan Muhammad accused started inflicting knife blows upon him as a result of which the latter released Nawab accused. On becoming free Nawab accused fired another pistol shot at Muhammad Aslam. The complainant and the other P.Ws., who were present at the spot, raised hue and cry as well as entreated the accused whereupon the latter retreated. After the departure of the accused from the scene of the occurrence, the complainant went towards Muhammad Nawaz and found him lying dead on the northern side of the Court's premises. Muhammad Aslam P.W. was immediately removed to the Civil Hospital, Mianwali. The complainant immediately after the occurrence proceeded to report the occurrence at Police Station, Sadar, Mianwali but he met Falak Sher S.I. on the way near Kutchery Chauk and reported the occurrence to him at 8.30 a.m. Muhammad Aslam P.W., who had been injured and removed to the Civil Hospital, Mianwali where he made a statement (Ex.PJ) before Muhammad Javed Gill, Magistrate 1st Class, Mianwali which is being described as the dying declaration though he miraculously survived. After necessary investigation the accused were sent for trial. At the trial, the prosecution mainly relied on the ocular testimony furnished by Muhammad Aslam P.W. who was seriously injured during the incident and on the ocular testimony of Bahadur P.W.7 and Fateh Sher P.W.9, the recoveries consisting of Pistol (Ex.P.15) recovered at the instance of Nawab, Pistol (Ex.P.16) recovered at the instance of Ahmad Khan and blood‑stained Knife (Ex.P.18) recovered at the instance of Khan Muhammad; the crime empties, namely, P.13/1,4 and 5 recovered from the spot (which matched with the pistol of Nawab) and two other crime empties P.13/2 and 3 (which matched with the pistol of Ahmad Khan (Ex.P.16); the report of the Serologist who found that the knife (Ex. P.18) recovered at the instance of Khan Muhammad to be stained with human blood. The learned trial Judge, however, opined that as Muhammad Aslam P.W. was inimical to the appellants, his testimony could not be relied upon, moreso because the version of the incident given by him in his dying declaration (Ex. P.J.) did not tally with the version of the incident mentioned in the F.I.R. (Ex. PD). Furthermore, in his dying declaration Muhammad Asiam had stated that Nawaz (acquitted accused) had also fired at him though ineffectively but none of the crime empties which were recovered matched with the pistol recovered from him. The learned trial Judge was of the view that as the ocular evidence was highly interested and inimical and did not receive support from any other independent circumstance, no safe basis for convicting the accused on a capital charge existed. He, accordingly, acquitted all the appellants. On appeal filed by the State, the High Court entirely disagreed with the opinion of the learned Additional Sessions Judge. According to the High Court Muhammad Aslam P.W. was injured in the incident and his presence on the spot could not be disputed. It was further observed that though the version of the incident, as given by Bahadur P.W. in the F.I.R. (Ex.PD), was not exactly the same as given by Muhammad Aslam P.W. in the dying declaration (Ex.PJ), but this circumstance only showed that there was no prior consultation between Muhammad Aslam and Bahadur before they got their respective statements recorded and as Muhammad Aslam P.W. was in great agony at that time on account of the serious injuries suffered by him some allowance had to be given to this circumstance while scrutinising his statement (Ex.PJ). The fact remained that the incident had occurred in broad daylight in the premises of the District Courts, Mianwali where both the parties were present on account of the hearing in the case of Rustam. Hence, there was no reason why the version of the complainant, whose presence at the spot could not be discounted regarding the participation of the appellants in the incident, should not be accepted. However, in view of the discrepancy with regard to the role of Muhammad Nawaz, co‑accused, given by Muhammad Aslam P.W. in the dying declaration and that attributed to him by Bahadur P.W. in the F.I.R. he was entitled to the benefit of the doubt which was, accordingly, given to him. We too have gone through the relevant evidence with the help of Mr. Ijaz Hussain Batalvi and have also heard him at some length. He has mainly stressed the same considerations which were taken note of by the learned Additional Sessions Judge while acquitting the appellants. But we cannot agree either with the learned Additional Sessions Judge or Mr. Batalvi that the testimony of the eye‑witnesses is suspect and should not be relied upon. On the other hand, the conclusions at which the High Court has arrived appear to us to be plainly correct. The presence of Muhammad Aslam, who was seriously injured and was also an accused person in the murder case of Rustam, could not possibly be disputed. The presence also of the other P.Ws., who claimed to have come to the District Courts, was also worthy of acceptance as their coming to the Court on the fateful day was quite natural. There was absolutely no inconsistency in the statements of the eye‑witnesses on the point that Nawab and Ahmad Khan appellants had resorted to firing as a result whereof Muhammad Nawaz (deceased) and Muhammad Alam (injured witness) had suffered fire‑arm injuries. Indeed, in our view, the evidence of the eye‑witnesses to the effect that Nawab and Ahmad Khan were responsible for causing the said fire‑arm injuries was entirely reliable and could safely be accepted. Muhammad Aslam P.W. had, moreover, suffered knife injuries and as there was sufficient reliable evidence to establish that Khan Muhammad was armed with a knife, which was subsequently also recovered at his instance and found to be blood‑stained, his participation in the incident therefore was also fully established. So far as the recoveries are concerned we note that the crime empties (Ex.P.13/1‑5), which ultimately matched with the pistols (Ex.P.15 & Ex.P.16) recovered from Nawab and Ahmad Khan appellants, were recovered on 12‑12‑1974 much earlier to the recoveries of the pistols (recovered on 26‑12‑1974). In these circumstances, the aforesaid recoveries could be held to furnish additional corroboration to the ocular evidence, if any was still required. On this view of the matter we feel that the convictions and sentences passed by the High Court on the appellants do not require any interference. This appeal, therefore, fails and is, accordingly, dismissed hereby. S.Q./N‑17/S Appeal dismissed.