1990 PLP 260 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Respondents Nos.l to 5 were tried on the charge of having formed an unlawful assembly with the common object of murdering Ranjha and having intentionally caused his death in prosecution of the said common object, by the learned Sessions Judge, Bhakkar. The learned Judge convicted Sohna and Muhammad Khan respondents Nos.1 and 2 under section 302/34, P.P.C. sentencing the former to death and the latter to imprisonment for life. The rest of the respondents were acquitted. The convicts appealed against their convictions and sentences which was heard alongwith the reference for confirmation of death sentence awarded to Sohna by a Division Bench of the Lahore High Court. The State also filed an appeal against acquittal of the remaining three respondents. By judgment dated 8th December, 1987, the learned Judges of the Division Bench accepted the appeal of respondents Nos.1 and 2 and set aside their convictions as well as sentences awarded to them. Thus the death sentence was not confirmed and the appeal tiled by the State against the acquittal of respondents Nos.3 to 5 was also dismissed. The complainant Ghulam Qasim has now brought this petition for leave to appeal from the judgment of the Division Bench. According to the prosecution case the occurrence took place on 3rd October, 1981, near Basti Khadar Dakhli Umarwali at Degarwela when the complainant accompanied by his deceased brother Ranjah and his nephew Ata Muhammad were passing near the said place on the way to their home. It is alleged that respondent Sohna suddenly emerged from behind sarkandas armed with a gun and fired a shot at the deceased proclaiming that his end had come. As a result of the gun shot injury the deceased fell on the ground and the rest of the respondents, who were armed with knives also appeared from behind the bushes and gave blows to him with their knives on different parts of his body including neck and head. Witness Ghulam Qasim (complainant) and Ata Muhammad did not intervene to save the deceased on account of threats administered to them by the culprits. The deceased breathed his last on the spot. The motive according to the prosecution was that one Muhammad Hussain, real brother of respondent Ghulam Muhammad and real maternal uncle of respondents Sohna and Muhammad Khan, was murdered seven years before the present occurrence. Some accused persons were prosecuted for the said murder but were acquitted. However, the respondents suspected that Ranjha had murdered Muhammad Hussain against whom a private complaint was lodged by the mother of respondent Sohna. The present occurrence was the sequel of the aforesaid murder of Muhammad Hussain. The prosecution relied upon the ocular testimony of complainant Ghulam Qasim, real brother of the deceased, Ata Muhammad (P.W), nephew of the deceased and Muhammad Ilyas who was not related to the deceased. The ocular testimony was sought to be supported by incriminating recoveries allegedly made from the respondents. A .12 bore gun was secured from respondent Sohna and a knife each from the rest of the respondents which were blood‑stained. The Medical Officer testified that he had noted in all 24 injuries on the body of the deceased 15 of which were incised wounds on the different parts of the body including chest, 5 other wounds, three abrasions and 1 fire‑arm injury on the abdomen with blackening around the seat of the injuries. In their section 342, Cr.P.C. statement the respondents denied the prosecution case as a whole and the alleged recoveries, pleading that they were falsely involved due to enmity with the complainant. The learned Judges of the Division Bench rejected the ocular testimony furnished by the three eye‑witnesses as they found from the evidence that their presence at the time of the occurrence was doubtful. In this connection the main reasons that prevailed with the learned Judges, were that although Ata Muhammad (P.W) admitted that Ilyas (P.W.) had come at the scene of occurrence near the dead-body before the complainant left for the police station his name did not transpire in the F.I.R. Ilyas (P.W.) himself admitted that when the police arrived at the spot he was not present. Indeed the Investigating Officer himself admitted that none of the eye‑witnesses except the complainant was present when he reached the scene of the occurrence. So far as the other two eye‑witnesses, namely the complainant and Ata Muhammad, they were also admittedly not present near the dead-body when Muhammad Iqbal, A.S.‑I. had reached the scene of occurrence. The learned Judges of the Division Bench for the aforesaid reasons came to the conclusion that the so‑called eye‑witnesses did not seem to be present and witnessed the crime. Ata Muhammad who had been specifically left behind by the complainant to guard the dead-body of his uncle, could not have left it unattended in a secluded place. The other reasons given by the learned Judges for disbelieving the presence of eye‑witnesses was that if they were present the assailant might not have murdered the deceased so brutally, as the witnesses could have sought help from persons, who were admittedly residing close by, particularly when the murderous assault commenced with the fire‑arm shot, which could have attracted the people living near the house of Ilyas (P.W.) at a distance of 70 karams. The learned Judges also doubted the time of occurrence as the statement of the complainant was admittedly recorded at 8‑00 p.m. when the police station was only six miles from the scene of occurrence. Coupled with some other circumstances it was found that in all probability the occurrence took place after sunset and was an un-witnessed crime. In support of the petition learned counsel contended that the learned Judges have misread the evidence in reaching the conclusion that the three eye?witnesses' presence at the spot was doubtful. We, however, find that reasons assigned by the learned Judges of the Division Bench in rejecting the ocular testimony, which was the mainstay of the prosecution case, are sound and valid. The ocular testimony, therefore, is not of the quality and probative value sufficient to sustain the conviction on a capital charge. There is no good ground made out for reappraisal of evidence in this case. The petition, therefore, fails and is accordingly dismissed. N.H.Q./G‑242/S ???????????????????????????????????????????????????????????????????????????????? Petition dismissed.