2001 PLP 73 (SCMR)

RASHID AZIZ KHAN, J.

Muhammad Ashraf, Muhammad Amjad, Muhammad Akhtar sons of Nawab Din, Umer Din, Nawab Din son of Kalu were reported against with Police station Wahndo, District Gujranwala for offence under sections 302, 148 and 149, P.P.C. for the murders of Muhammad Asghar and Muhammad Aslam. Learned Additional Sessions Judge, Gujranwala, vide his judgment, dated 10-7-1994 gave benefit of doubt and acquitted Muhammad Amjad, Muhammad Akhtar and Nawab Din of all the charges. Muhammad Ashraf and Umer Din were, however, found guilty under section 302/34, P.P.C. and each of them was sentenced to death on two counts. The convicts appealed. A learned Division Bench of Lahore High Court vide its judgment, dated 12-10-1998 dismissed the appeal and confirmed the death sentence. Convict Muhammad Ashraf has filed petition before this Court seeking leave to appeal.

2. During pendency of appeal before High Court Umer Din died, therefore, to his extent the appeal had abated which was accordingly disposed of.

3. Prosecution story as disclosed in the F.I.R. got registered by Muhammad Ashraf on 18-2-1993 was to the effect that on 16-2-1993 Umer Din accused abused daughters of Muhammad Aslam, brother of the first informant. In that connection, on 18-2-1993 a Panchayat was convened wherein first informant with his both brothers Muhammad Aslam and Muhammad Asghar, alongwith others, was present in the Havili of Ghulam Hussain. They sent for Umer Din and Nawab Din to enquiry why the girls were abused. Umer Din took exception to it anti raised Lalkara whereupon Muhammad Ashraf armed with .12 bore gun alongwith other acquitted accused, came. He went to the roof of Havili of Ghulam Hussain and fired hitting Muhammad Asghar. Muhammad Aslam went towards the roof to apprehend him but was fired again: Both the injured expired at the spot.

4. Learned counsel for the petitioner contended that the case is extremely doubtful and conviction of Muhammad Ashraf cannot be sustained because on the same evidence, 3 co-accused were given the benefit of doubt and acquitted. Argued there is no other evidence which could corroborate the eye-witnesses against Muhammad Ashraf. Submitted that the prosecution withheld the most important witness Ghulam Hussain in whose Havili occurrence had taken place, thereby the entire story has become extremely doubtful. It was highlighted that there was glaring contradiction between the ocular account and the medical evidence because there were burnings on the wounds. Lastly, it was argued that the motive was not believed by both the Courts below and in such circumstances, the chances that Muhammad Ashraf acted on the instigation of his elders, cannot be ruled out. In such circumstances, the death sentence could not be awarded.

5. We have heard the learned counsel at length and gone through the evidence with his assistance. Prosecution, in order to establish its case, produced Muhammad Ashraf and Muhammad Yaseen, P. Ws.4 and 5 respectively as the eye-witnesses. Both of them were put to the test of lengthy cross-examination during which it came on record that their Havili was about 12 feet away from the place of occurrence. In such circumstances, they became natural witnesses and their presence cannot be doubted. Though the defence cross-examined eye-witnesses at length yet no motive for false involvement was suggested to them. The contention of the learned counsel that the motive has not been proved, therefore, story of Panchayat would also fall to pieces, has been considered by us but we are not inclined to agree with the submission for the reason that motive was not relied upon by both the Courts below because the eye-witnesses in cross-examination, admitted that at the time of abusing the girls they were not present. The deceased who might have witnessed it, was not available, therefore, both the Courts below held that motive could not be proved for lack of evidence. Finding was not that the witnesses were not trustworthy. Even if it be assumed that Panchayat was not proved yet the fact remains that the occurrence did take place inside the Havili of Ghulam Hussain because the dead bodies were found there. In such circumstances, the point raised by the learned counsel for the petitioner that holding of Panchayat is not proved, loses its significance.

6. Contention of the learned counsel that Ghulam Hussain, in whose house Panchayat was convened is not produced, therefore, the whole story has become doubtful, cannot be accepted. The prosecution has proved this fact through 2 persons who witnessed the occurrence and each of them stood the test of cross-examination as well. It is well-established that conviction can be sustained even on the statement of a solitary witness provided his statement inspires confidence. On the other hand, even if dozens of witnesses are produced but their statements do not inspire confidence, conviction cannot be ordered. The Courts have to look for the quality of evidence and not go for quantity. As already discussed, both the eye-witnesses do inspire confidence. In such circumstances, prosecution was not required to produce all the participants of Panchayat in order to prove the case nor any adverse inference on this ground can be taken.

7. The last contention that on the same evidence, 3 co-accused were given benefit of doubt and on the same evidence, petitioner could not be convicted has been considered by us but we do not propose to rely upon the contention. According to prosecution allegation the acquitted co-accused were present at the spot but were empty-handed. No overt act whatsoever, was ascribed to them. They did not take any step which could indicate that they shared common intention with the convicts. Mere presence at the spot at a place where Panchayat was held, cannot lead to the inference that they shared common intention. On the other hand, case of the petitioner stands on different footing altogether. After raising Lalkara, he came armed with a gun and thereafter, committed the murder of 2 young men. We are of the view that eye-witnesses have rightly been relied upon, qua the petitioner.

8. The contentions that motive has not been proved and the petitioner acted under the influence of his elders, therefore, capital sentence cannot be awarded has been considered by us. As far the motive is concerned, as discussed earlier, it was not disbelieved but was not relied upon on account of lack of evidence. There can be cases where motive is hidden deep in the minds of assailants or the motive can be different from what the witnesses thought it might be, in any case it cannot be considered. Reliance was placed on the case of Noor Muhammad v. State (1999 SCMR 2722). We have noticed that at the time of occurrence, petitioner was about 30 years of age. He was a grownup man with independent mind and thinking. It cannot be presumed that he would come under influence of his elders in such a manner that he would commit the murder of 2 persons with gun. Had he been a teenager or dependent, then the argument of the learned counsel could have been available. The upshot of above discussion is that prosecution has been able to prove its case beyond reasonable doubt. No mitigating circumstance exists to interfere with the sentence of the petitioner. Leave is refused and petition dismissed. M.B.A./M-123/S ?????????????????????????????????????????????????????? Petition dismissed.