2007 PLP 1798 (SCMR)

JAVED IQBAL, J.

Heard Mr. Zulfiqar Abbas Naqvi, learned Advocate Supreme Court on behalf of petitioner, Ch. Munir Sadiq, learned Deputy Prosecutor-General for State, scanned the entire evidence with their eminent assistance and perused the order impugned carefully. It is to be noted that challan of the case has already been submitted, trial commenced and case is fixed for recording of prosecution evidence for 26-7-2007. The petitioner may move an application for bail before the learned trial Court. We are deliberately withholding our comments on .merits of the case to avoid the possibility of causing prejudice against any party. By now it is well-settled that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles. Leave to appeal is not granted by the Supreme Court where the grievance is that the High Court has, in the proper exercise of its jurisdiction, appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree". Abdul Haq v. State 1979 SCMR 254, Ghulam Nabi v. State NLR 1978 Crl. 328, Sultan Khan v. Amir Khan PLD 1977 SC 642, Haq Nawaz v. State 1969 PCr.LJ 358; Haq Nawaz v. State 1969 SCMR 174 and Allah Diwaya v. State PLD 1969 SC 98.

2. On the touchstone of the criterion as laid in the above referred to authorities the petition in hand has been examined and we are of the considered view that the order impugned does not call for any interference. The petition being devoid of merit is dismissed and leave refused. M.H./G-23/SC Petition dismissed. 2007 S C M R 1800 [Supreme Court of Pakistan] Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ SULTAN AHMED UJJAN

Petitioner Versus THE STATE

Respondent Crl. P.L.A. No.83-K of 2006, decided on 31st January, 2007. Constitution of Pakistan (1973)

Art. 185(3)

Penal Code (XLV of 1860), S.302(b)

Reappraisal of evidence

Prosecution case rested upon ocular evidence of prosecution witnesses which was fully corroborated by Medico-legal opinion, strong motive for commission of the crime, judicial confession of the petitioner/accused and recovery of crime weapon at his. instance

Incident was witnessed by the persons, whose presence at the scene of offence had not been shattered

Case being of single accused, there was no occasion for substitution or mistaken identity

Occurrence was a daylight incident and parties were known to each other

Prosecution version was fully supported by Medico-legal evidence which was in consonance with the facts and circumstances of the case

Petitioner on the very next day of his arrest, had made his breast clean by confessing his participation in the commission of the crime

Prosecution case was further strengthened by strong motive ascribed to the petitioner as well as recovery of crime weapon matching with the crime empties

Such facts, in circumstances were adequate enough to saddle accused with the charge levelled against him

No ground existing for indepth reappraisal of evidence, leave to appeal was refused. Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Petitioner. Date of hearing: 31st January, 2007. JUDGMENT RANA BHAGWANDAS, J.

Petitioner is aggrieved by Sindh High Court judgment, dated 29-9-2006 dismissing his appeal against his conviction and sentence on the charge of Qatl-i-Amd of deceased Ghulam Shabbir committed on or about 24-12-1991 at about 1-00 p.m. within the jurisdiction of Police station Kandiaro.

2. Precisely stated, the facts appear to be that on the material day, first informant Nisar Ahmed, Clerk in WAPDA, Kandiaro along with Abdul Ghafoor; Ghulam Abbas and deceased Ghulam Shabbir came out of his office to have a cup of tea at about 1-00 p.m. when they reached the main gate of the office, they noticed petitioner Sultan Ahmed standing outside the gate, who challenged deceased Ghulam Shabbir to halt. The witnesses persuaded the petitioner not to assault the deceased but the latter took out a pistol from folds of his Shalwar and fired at the deceased hitting him on the left side of his back. They tried to apprehend the petitioner but he reloaded the pistol and challenged them not to approach him, failing which they would also be killed because he had killed his enemy who had married Mst. Noor Jehan, former wife of his uncle Qaimuddin after obtaining divorce.

3. After recording F.I.R. investigation was taken up. On 27-12-1991 petitioner was arrested, when he produced a country made pistol along with two live cartridges, which, on being referred to the Fire-arm Expert, were found to wed with the crime empty recovered from the place of occurrence. He also made a judicial confession before Resident Magistrate, Kandiaro implicating himself. Petitioner at the trial claimed to be psychoactive patient but the Court constituted a Board of Psychiatric Experts for his examination, who vide report dated 3-10-2003 certified that he was capable of understanding the Court proceedings. At the conclusion of trial, petitioner was found guilty of the charge under section 302(b), P.P.C. and sentenced to imprisonment for life and compensation of Rs.25,

000. The convict appealed before the Sindh High Court,' Sukkur Bench but without any success, hence this petition.

4. We have heard Mr. Ghulam Qadir Jatoi, learned Advocate Supreme Court for the petitioner at length and examined the record with care and caution.

5. While the prosecution case rests upon ocular evidence of Nisar Ahmed P. W.1, Abdul Ghafoor P. W.2 and Ghulam Abbas P. W.3, fully corroborated by medico-legal opinion, strong motive for the commission of the crime, judicial confession of the petitioner and the recovery of crime weapon at his instance, .learned counsel vehemently agitated that this was an un-witnessed crime, as per D. W.1 Muhammad Alam, examined by the petitioner in his defence. Upon scrutiny of the evidence and careful consideration of the record, we find that the incident was indeed witnessed by the persons named hereinabove, whose presence at the scene of offence has not been shattered. In fact, this is a case of single accused and evidently there is no occasion for substitution or mistaken identity. It was a daylight incident and the parties were known to each other. Prosecution version is fully supported by medico-legal evidence, which is in consonance with the facts and circumstances of the case. Soon after the arrest, the petitioner on the very next day, had made his breast clean by confessing his participation in the commission of the crime, wrongly asserting to have killed a "Karo". In law, no person is authorized to take the law into his hands and slaughter his enemy at his .whims by pretending to have acted under provocation and family honour. Learned counsel attempted to argue that the confessional statement of the petitioner was retracted at the trial but we are hardly impressed by such submission as no grievance appears to have been made by the petitioner at the earliest opportunity before the Magistrate First Class, who recorded his judicial confession. His allegation against the Investigating Officer with regard to detaining inmates of his house at police station is obviously an afterthought and much belated, which does not have the impact of demolishing the whole prosecution case. Prosecution case is further strengthened by strong motive ascribed to the petitioner as well as recovery of crime weapon matching with the crime-empties. These factors, in our opinion, are adequate enough to saddle the petitioner with the charge levelled against him.

6. For the aforesaid facts, circumstances and reasons, there is no ground for indepth reappraisal of evidence and the grant of leave. Consequently, petition fails and is hereby dismissed. H.B.T./S-42/SC Petition dismissed.