1970 PLP 7 (SCMR)

WAHIDULDIN AHMAD, J.‑Respondents Zafar Ali, Shaista Khan and Gul Muhammad were tried along with Nawazish Ali under section 302/34, P. P. C. for the murders of Mumtaz Hussain and Haq Nawaz, on the 12th July 1967, in the area of Mouza Kot Mopal, District Jhang. Respondent No. 1 was sentenced to transportation for life and respondents Nos. 2 and 3 were sentenced to death by the learned Additional Sessions Judge, Lyallpur, by judgment dated the 16th November 1968. Nawazish Ali was acquitted. Respondents challenged this judgment in Criminal Appeal No. 826 of 1968, and a Division Bench of the West Pakistan High Court, Lahore, by judgment dated the 24th April 1969, accepted the appeal and acquitted the respondents. Petitioner Ghulam Abbas, who is the brother of deceased Aaq Nawaz, seeks special leave to file an appeal against the said judgment. The prosecution case is that on the 12th July 1967, at about 10‑00 a. m. in the area of Mouza Kot Mopal, respondents, along with Nawazish Ali, armed with guns and, in furtherance to, their, common intention fired at Mumtaz Hussain and Haq Nawaz and caused their death. Ghulam Abbas, Muhammad Nawaz and Karam Dad, P. Ws. were sitting under the shade of a mango tree at that time and witnessed the occurrence. Their evidence is that all the respondents and Nawazish Ali simultaneously fired at Mumtaz Hussain deceased when he was returning home with the empty utensils. After he had fallen down, Zafar Ali respondent went forward and fired a shot at the left side of his head and killed him. On seeing this, Haq Nawaz tried to run away but was overtaken by all the accused and Zafar Ali respondent killed him by firing two shots. The motive behind the murders is stated to be a blood‑feud. It is alleged that about five years back, Ghulam Qasim, father of respondent Zafar Ali was murdered. In that connection Ghulam Abbas, P. W. 9, his brother Haq Nawaz deceased, his son Mumtaz Hussain and his brother‑in‑law Muhammad Rashid were implicated but were acquitted by the Court. Respondent Zafar Ali was said to be deeply grieved because of the murder of his father. In view of this enmity, both the parties were bound down for keeping peace. This, however, did not prevent the murders of deceased Mumtaz Hussain and Haq Nawaz. The prosecution case was supported by the four eye‑witnesses, namely, P. W. y Ghulam Abbas, P. W. 11 Muhammad Nawaz, P. W. 12 Arif and P. W. 10 Karam Dad. The evidence of P. W. 10 Karam Dad was excluded on the ground that he was a man of "questionable respectability" and happended to be a professional witness and that as he resided at a distance of 36 miles from the spot his presence on the scene of occurrence was doubtful. The other prosecution witnesses are related to each other. Deceased Haq Nawaz was the brother of Ghulam Abbas. Deceased Mumtaz Hussain was the son of deceased Haq Nawaz. Muhammad Nawaz is the brother of Ghulam Abbas and Muhammad Arif is his nephew. As the witnesses were interested persons and there was enmity between the parties the High Court observed that the evidence of the eye‑witnesses should not be accepted unless it was corroborated by some other evidence. As no corroboration was forthcoming, the learned Judges of the High Court did not place any reliance on the evidence of the eye‑witnesses and have given benefit of doubt to the respondents. Syed Ali Raza, learned counsel for the petitioner, has contended that it was a broad daylight murder and the prosecution had brought home the guilt of the respondents. The learned counsel contended that the High Court was prejudiced on account of the acquittal of Nawazish Ali and came to the conclusion that as the case of Nawazish Ali and other respondents stood on the same footing, the respondents also should have been acquitted by the learned Additional Sessions Judge, Lyallpur. It was strongly urged before us that the High Court has given too much importance to the acquittal of Nawazish Ali. After going through the evidence on the record, we are satisfied that the High Court was perfectly justified in not relying on the evidence of the eye‑witnesses. Admittedly, the eye‑witness are close relatives of the deceased and there was enmity between the parties, their evidence was not corroborated by any other piece of evidence. The guns recovered at the instance of Zafar Ali and Shaista Khan respondents and the empties recovered from the scene of occurrence were sent to the Ballistic Expert but his report was not furnished to the Court. Thus this piece of evidence is also of no value. The recovery of the left shoe of respondent Zafar Ali was also disbelieved both by the learned Additional Sessions Judge and the High Court. The three circumstances on which the learned trial Court has relied for the corroboration of the eye‑witnesses' statement was rejected by the High Court on the ground that they were applicable also to the case of Nawazish Ali. In our opinion the circumstance that at the time this incident had occurred, the witnesses were expected to be in their fields‑in their ordinary course of business is by itself not sufficient to corroborate the statement of the eye witnesses. The medical evidence also does not support the statement of the eye‑witnesses. The third circumstance that the respondents had absconded has also no force because the three respondents were arrested on the 3rd day of the occurrence. There can be so many explanations for not apprehending them during this time. There is no doubt that the complainant party had tried to implicate the persons who had nothing to do with the crime. Nawazish Ali is one of them. Shaista Khan and Gul Muhammad, who are alleged to be the servants of Zafar Ali, have denied their presence on the scene of occurrence. They have also denied to be the servants of Zafar Ali. One of them Gul Muhammad was challaned for the murder of the mother of respondent Zafar Ali. This fact was admitted by Muhammad Nawaz P. W.

11. It is also in evidence that Zafar Ali respondent appeared as a witness against him. It is, therefore, quite clear that there was enmity between him and respondent Zafar Ali. In these circumstances, it is difficult for us to believe that respondent Gul Muhammad had joined Zafar Ali in the commission of the crime under consideration. The arguments advanced by the learned counsel for the petitioner are more in the nature of appreciation of evidence. It is apparent from the record that some of the eye‑witnesses‑I particularly, Muhammad Nawaz P. W. 11, has made an improvement in his statement by saying that the respondents and Nawazish Ali after emerging from the dera stood on a platform and then all of them fired simultaneously. This improvement was made in order to make it fit with the medical evidence. We are satisfied that the conclusions reached by the High Court are not perverse and are based on proper appreciation of the evidence. There is, therefore, no force in the petition which is dismissed. Leave refused.