1980 PLP 839 (SCMR)

NASIM HASAN SHAH J‑This appeal by special leave is directed against the judgment dated 21‑6‑1971 of the High Court of Sind & Baluchistan, Karachi, in Criminal Appeal No. 451 of 1970. The relevant facts are that he appellant Gut son of Sabzal Jatoi, along with four others, namely, Ramzan, Abullah, Saeed Khan and Muhammad Sharif, was tried by the Sessions Judge, Sukkur for the murder of Kakoo deceased under section 148 and section 302/149, P. P. C. The prosecution case very briefly put was that on the 24th February, 1969, Kakoo deceased left his house before sunrise for Shikarpur to attend the hearing of the case there, filed by Ramzan under section 307/34, P. P. C. against him, and while on his way he was attacked by five persons named above, who caused him numerous hatchet injuries. The F.1. R. relating to the occurrence was lodged by Kanwath son of Biroo (P. W. If at Rustam Police Station situated at a distance of one mile from the spot at 9‑30 am. All the above‑named five persons were named in the F.I. R by Kanwath P. W.

1. The appellant was arrested ‑on 6‑3‑1979 and led to the recovery of blood stained hatchet from inside a cluster of date trees at a distance of about 30 or 40 paces from the spot in the presence of Ghulam Rasool and Muhammad Hussain Mashirs. The hatchet was found to be blood‑stained Chemical Examiner. The other accused, namely, Saved Khan, Muhammad Sharif and Ramzan also allegedly led to the but none of them was found to be stained with human blood nor Mashirnama in respect of seizure appears to have been prepared defence of the appellant was one of denial and false implication on account of enmity. In support of its case, the prosecution relied upon‑ (a) the occular testimony of Kanwath, Kamher and Abdul Rehman. P. Ws. 1 to 3; (b) blood‑stained hatchet by appellant Gul ; and (c) evidence of motive. The learned trial Judge relying upon the occular testimony and the recovery of the hatchets convicted all the five accused for an offence under sections 302/149 and 148, P. P. C. and sentenced each of them to trans portation for life and rigorous imprisonment for two years respec tively. Dissatisfied with this judgment, all the five convicts appealed to the High Court of Sind & Baluchistan, Karachi and their joint appeal was heard by a Division Bench of the said Court. The learned Judges did not find the motive satisfactory. They, further appeared to have found that in circumstances of the case, it would not be safe to rely upon the uncorroborated testimony of the eye‑witnesses alone and, therefore, upheld the conviction and sentence of Gul appellant as the testimony of the eye‑witnesses was corroborated by the fact that on the 6th March, 1969, he conducted the Police party and Ghulam Rasool Mashir to a cluster of date trees near about the wardat and produced from it a hatchet which was found to be stained with human blood. As no such corroboration was available as far as the other accused were concerned they were given the benefit of doubt and acquitted whereas the conviction and sentence of Gul appellant was upheld by the judgment of the High Court dated 21‑6‑1971. The appellant, therefore, filed a petition for special leave, to appeal in this Court. In support of the above petition, it was contended that the circumstances attending the recovery of the blood‑stained hatchet were very suspicious and this circumstance could not be relied upon as piece of corroboration of the ocular account. Leave .o appeal was granted to consider this aspect of the matter. Mr. Talmiz S. Burney, in support of this appeal, has submitted that the recovery of the hatchet some ten days after the alleged occurrence was doubt ful as the solitary mashir, examined on the point, Ghulam Rasool P. W., was connected with the deceased and the enemy of the appellant. He was more over called from a village, which was situated two miles away from the place of occurrence and nobody from the locality was arrested with the recovery, although the village in which the occurrence took place consisted of about 1,500 persons. He further submitted that the recovery made was doubtful because although the blood‑stained hatchet was, alleged to have been recovered on 6‑3‑1969 and the same was actually sent to the Chemical Examiner two days before the said date. In this connection reliance has placed on the letter dated 26‑5‑1969 (page 47 of the paper book) sent from the Chemical Examiner to the Government of West Pakistan, Karachi to the Medical Superintendent, RBUT Haspital, Shikarpur in which it is stated as under: ‑ "Your letter No. E‑5 dated 4‑3‑1969 adivising two sealed parcel by hand of C. Fazaldad No. 359 stated by you to have been despatched on the and which were duly received in the office on the 8th March, 1969,

Description of articles contained in the parcel, (1) Earth‑Pol. No. 1. (2) Hatchet with handle ‑ Pol No. 2 Result of Chemical Analysis Both the above articles are stained with human blood." From the date 4‑3‑1969 mentioned in this letter, it was argued that the hatchet, which was found to be stained with blood was sent on 4‑3‑1969 to the Chemical Examiner, whereas the recovery allegedly was made on 6‑3‑1969. We have given our earnest consideration to these submissions. As for the reliance on the letter of the Chemical Examiner is concerned it is admitted that this was not to be put to the Investigating Officer to get any clarification in respect thereof, and no reliance had been placed on this document in any of the Courts below. In the absence of it having been brought to the attention of the Investigating Officer and his explanation obtained with regard to it we cannot place any reliance on this document. So far as the contention that Ghulam Rasool Mashir was an interested witness and was not a person from the locality we have gone through the statement of this mashir in which he has denied having any enmity with the accused or that he was giving evidence at the instance of any one. However, the question whether the witness should be relied upon or not o what weight should be given to his evidence is a matter pertaining to appreci ation of the evidence and such a matter cannot be gone into by this Court in the present proceedings. We therefore think that the findings recorded by the Sessions Judge and upheld by the High that the blood‑stained hatchet was recovered at the instance of Gul appellant cannot be upset. The said recovery being an incriminating circumstance was legitimately used as corroborative evidence by the Courts below. Therefore, no ground for interference with the judgment of the High Court. A question arose whether the appellant has not yet served out the sentence because he was convicted and sentenced by the learned Sessions Judge on 5‑11‑1970 arid has been in custody ever since. The learned Addi tiorial Advocate‑General submitted that in this connection inquiries by the Jail authorities indicated that he was still in custody. We would like to observe that the appellant was convicted and sentenced before the promulgation of Law Reforms Ordinance, 1972 anal, therefore, the sentence of transportation for life must be construed under the un -amended law as applicable before the coming into force of the said Ordinance. With these observations, this appeal is dismissed hereby. Appeal dismissed.