2007 PLP 315 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment, dated 20-7-2005 passed by a Division Bench of High Court of Balochistan at Sibbi, whereby the appeal filed by the petitioners against the conviction and sentence of death for murder of Ghulam Nabi awarded to them under section 302(b), P.P.C. as Tazir along with the different sentences of imprisonment under section 324 read with section 337-A(ii), 337-F(i), 337-L, sections 148 and 149, P.P.C. for causing injuries to the witnesses, by Additional Sessions Judge, Nasirabad at Daira Murad Jamali was dismissed, with conversion of sentence of death into life imprisonment.

2. The short facts of the prosecution case in the background are that on 28-2-2003 at 12 noon, Allah Dino, the first informant along with his brothers namely Ghulam Nabi (deceased) Hubdar Ali, Murad Ali and minor girl Khatija (daughter of Murad Ali), were proceeding towards their field when the present petitioners along with their co-accused (since absconding), at 12-00 noon equipped with fire-arm suddenly appeared at the scene and opened firing at the deceased and his companions as a result of which they all sustained injuries and Ghulam Nabi succumbed to the injuries at the spot. The report of the occurrence was lodged by Allah Dino (complainant) at 12-45 a.m. at levies Thana, Tamboo whereupon Liaquat Ali, Naib Tehsildar, Tamboo, (P.W.7) on reaching at the spot, prepared injuries statement and inquest report of the deceased, dispatched the dead body for post-mortem examination, took into possession blood-stained earth and 10 crime-empties of .12 bore gun from the place of occurrence with certain other articles and having completed the investigation submitted the final report for the trial of accused. The learned trial Judge after completion of formalities, declared co-accused of the petitioners as proclaimed offenders whereas having framed the charge against him for the commission of offence as stated above proceeded with the trial. The prosecution mainly relied upon the statement of the injured witnesses, the medical evidence and post-mortem report of Ghulam Nabi. The petitioners in their statement under section 342, Cr.P.C. denied the charge and pleaded false implication.

3. Learned counsel for the petitioners with reference to minor discrepancies and the contradiction in the statements of eye-witnesses contended that the prosecution without proving the participation of the petitioners in the occurrence satisfactorily assigned them the general role of firing as member of unlawful assembly, therefore, their conviction on the basis of sole evidence of interested and partisan witnesses without independent corroboration was not safe as the circumstances leading to the occurrence would suggest strong possibility of false implication due to the enmity. Learned counsel forcefully argued that motive set up by the prosecution was also not proved beyond doubt and active participation of the petitioners in the occurrence was not proved beyond reasonable doubt, therefore, the finding qua their guilt was result of misappreciation of evidence.

4. The perusal of record, with the assistance of learned counsel, would reveal that presence of the injured witnesses at the spot was not questionable and only question requiring determination would relate to truthfulness of their testimony. The occurrence in the present case took place at 12 noon, report of which was lodged within one hour wherein the petitioners, along with others were nominated and were assigned the role of firing at the complainant party as a result of which Ghulam Nabi died and the witnesses sustained injuries. The three eye-witnesses, including a minor girl Mst. Khatija, without any omission or addition have consistently supported the prosecution and their deposition sought ample corroboration from medical evidence and the recovery of crime empties of .12 bore gun from the spot as well as the attending circumstances. The contention of learned counsel that in the given facts and the circumstances of the case it was not possible to ascertain the individual liability and held the petitioners responsible for causing injuries to the deceased and witnesses, therefore, the petitioners could not be saddled with the responsibility of committing the murder of deceased, has no substance. The petitioners and their co-accused having formed unlawful assembly armed with lethal weapons attacked at the complainant party and caused fire-arm injuries to the deceased and witnesses, therefore, notwithstanding the fact that who was individually responsible for causing specific injuries to the deceased and witnesses, the petitioners by virtue, of vicarious liability, would be equally responsible for the murder of deceased and causing injuries to the witnesses. However, the High Court having come to the conclusion that it was a case of vicarious liability and the individual role was not ascertainable, converted the sentence of death awarded to the petitioners into life imprisonment and we would not take any exception to the view of the matter taken by the High Court. It was a broad-daylight occurrence and eye-witnesses, including a minor girl, have consistently stated about the active participation of all the petitioners in the occurrence and nothing was brought on record to suggest even a slight doubt qua their guilt. Learned counsel for the petitioners has not been able to convince us that either the testimony of injured eye-witnesses was not reliable or the participation of the petitioners in the occurrence was doubtful and, we have not been able to find out any misreading or non-reading of the evidence either by the trial Court or High Court in coming to the conclusion regarding guilt of the petitioners or any other legal or factual infirmity in the judgment of the High Court calling for interference of this Court.

5. In the light of foregoing discussion we do not find any substance in this petition, which is accordingly dismissed leave is refused. M.H./A-88/SC???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.