1980 PLP 848 (SCMR)

DORAB PATEL, Actg. C. J-‑The private respondents in this petition for leave are cousins and they were convicted by the Sessions Judge, Badin, under section 302/34, P. P. C. for the murder of Mst. Jamila and Mst. Sabhai (the wife and aunt of the second respondent respectively), and whilst the second respondent was sentenced to death, the respondents 3 and 4 were sentenced to life imprisonment. Fines were also imposed. The private respondents challenged their conviction in an appeal to the Sind High Court, which was heard with the reference from the Sessions Judge. And, by their judgment dated 24‑4‑1979, the learned Judge of the Sind High Court acquitted respon dents 3 and 4 and they altered the second respondent's conviction to sec tion 304, Part I, P. P. C., and sentenced him to five years' R. I. with this modification of the conviction, the second respondent's appeal was dismissed. The petitioner is the father of the deceased, Mst. Jamila and Mst. Sabhai and has filed this petition for leave against the acquittal of respondents 3 and 4 and the alteration of the conviction of the second respondent from section 302 to section 304, Part I, P. P. C. The prosecution case rests on the evidence of three eye‑witnesses, Lakhi, Hussain and Laiq, and the prosecution also relied on the second respondent's confession. But, we have to point out that the second respondent only implicated himself in his confession and pleaded ghairat. He said that he had returned home on 27‑4‑1976 and surprised his wife and aunt sitting with two men under Jar trees at Bhanda near their house. He was provoked, therefore, he killed them with the hatchet, which he happened to have with him. As the 2nd respondent admitted his presence at the occurrence, the sole question before the Courts below was whether the occurrence had taken place in the manner claimed by the prosecution, or, whether the second respon dent's confession was true. And although the prosecution examined as many as three eye‑witnesses, to prove the occurrence, these eye‑witnesses reluctantly admitted in their cross‑examination that they were the cousins of the deceased. Secondly, even according to the prosecution, the) F. I. R. was lodged by on Bacho and it only implicated the second respondent. In order to overcome this difficulty, the petitioner said in his evidence that he had gone to the Police Station to lodge the F. I. R., but he was informed that an F. I. R had been lodged therefore, he had returned home. Mr. Ahmadullah Faruqi, submitted that no reliance could be placid on the F. I. R. lodged by Bacho, because he was the uncle of the second respondent. Now, assuming for the sake of argument that this submission is correct, we find it very difficult to believe that the petitioner returned from the Police Station on the day of the occurrence without making any enquiries about the contents of the F. I. R. that had been lodged. Additionally, the three eye‑witnesses, who were examined to prove the murders were very close relations of the deceased, therefore, the fact that they left it to an uncle of the second respondent to lodge the F. I. R. is a circumstance, which rouses the utmost suspicion. But, it was ignored by the learned Sessions Judge. On the other hand, these circumstances were noted by the learned Judges of the High Court, who rightly held that they cast doubt on the prosecution version of the occurrence. Additionally, the three eye‑witnesses had all said that they were in their houses and had rushed out on hearing the alarm. But, they described the occurrence in such detail that the plea of the private respondents was that they (the eye‑witnesses) could not have seen the occurrence, because their houses were too far away from the vardat. In view of this submission, the learned Sessions Judge decided to inspect the vardat and the houses of the eye-witnesses and he has pointed out in his judgment that the houses of the eye witnesses were two furlongs from the place of occurrence. As the eye‑witnesses were inside their house at the time of the occurrence, in view of the medical evidence about the injuries to the deceased, it is difficult to believe that the eye‑witnesses could possibly have seen the occurrence from beginning to the` end, as they claimed to have done. And the view of the learned Judges was that the eye‑witnesses could not possibly have seen the occurrence, because they lived two furlongs away and the occurrence could not have taken more than a couple of minutes. In view of the medical evidence, we are inclined to agree with this view, but in any case the question is entirely of the appreci ation of evidence, and so the High Court was the first Appellate Court, it w entitled to interfere with the trial Court's appreciation of the ocular evidence It has done so. After carefully comparing the ocular evident with the circumstantial evidence and we see no error of law in the view taken by the High Court. But, this is fatal to the prosecution case, because it means that the prosecution has not examined any witness who had been the occurrence. Therefore, the prosecution can rely only on the 2nd respondent's judicial confession. But, this confession does not implicate respondents 3 and 4, therefore, they were rightly given the benefits of doubt, by the learned Judges. Next, as to the second respondent, although he has implicated himself as the prosecu tion case rests solely on his confession, that confession has to be accepted in toto, and, therefore, the learned Judges rightly accepted the plea of ghairat raised by the second respondent in 'his confession. In these circumstance, we agree with the view of the learned Judges that the case against the second respondent fell under the 1st Exception to section 300, P. P. C. Therefore, we see no error bf law in the view taken by the High Court, that this respondent was guilty not under section 302, P. P. C. but only under sec tion 304, Part‑ I, P. P. C. The petition is without merit and is dismissed. Petition dismissed.