1990 PLP 302 (SCMR)

S.302

Constitution of Pakistan (1973), Art. 185(3)

Accused armed with gun, caused fire-arm injuries to deceased

Crime empty recovered from spot matched with the gun recovered from accused

High Court dealing with uncertainty as to whether fatal shot was attributed to accused or co-accused as both of them fired simultaneously at the deceased and hit him, came to the conclusion that since prosecution had succeeded in establishing its case against accused, his conviction under S.148, P.P.C. was uncalled for and set aside the same but maintained conviction of accused under S.302, P.P.C. though altered sentence of death to imprisonment for life- --High Court had thoroughly evaluated evidence on sound principles of appraisal of evidence

Petition for leave to appeal against order High Court was dismissed. R.A. Awan, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for the Petitioner. Nerno for Respondents Nos. 1 to

6. M. Akhtar, Additional Advocate-General with Mr. Sadiq Hayat, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record for the State. Date of hearing: 18th June, 1989. USMAN ALI SHAH, J: - Leave to appeal has been sought by petitioner Muhammad Qayyum, against the order of the Lahore High Court dated 20-1-1986, passed in Cr. As. Nos.220 & 241 of 1982 and M.R. No.100 of 1982. Talib Hussain, Akbar Ali, Safdar Ali, Muhammad Rafiq, Saghir Ahmad, Abdur Rahim respondents Nos.l-6 alongwith acquitted accused Munir Ahmad, Ramzan and Rahmat of village Karbhat, Tehsil and District Lahore, were tried by the learned Addl. Sessions Judge, Lahore under section 148, P.P.C., 302/149; P.P.C. and Saghir Ahmad and Abdur Rahim accused under sections 404 and 414; P.P.C. for the murder of Khushal Khan and for removing a watch and a sum Rs.7,000.from his pocket. After conclusion of the trial the learned Addl. Sessions Judge on 31-3-1982 found the respondents Nos.l-6 guilty of the offence and sentenced Talib Hussain under section 302, P.P.C. to death with fine of Rs.5,000 or in default to suffer further R.I. for two years, Akbar Ali, Safdar Ali, Mohammad Rafique, Saghir and Abdur Rahim under section 302/149, P.P.C. to life imprisonment, with fine of Rs.5,000 each or in default to suffer further R.I. for two years, Talib Hussain, Akbar Ali, Safdar Ali, Mohammad Rafique, Saghir and Abdur Rahim under section 148, P.P.C. to two years R.I. each and a fine of Rs.500 each or in default to suffer further R.I. for six months each. Muhammad Rafique and Saghir were also sentenced under section 404, P.P.C. to three years R.I. each and a fine of Rs.2,000 each or in default to undergo further R.I. for six months. All the fines on realization were ordered to be paid to the heirs of the deceased. The sentences of the accused were ordered to run concurrently on each count. Talib Hussain and Akbar Ali filed Cr. A. No. 220/1982 and Safdar Ali, Mohammad Rafique, Saghir Ahmed and Abdur Rahim filed Cr. A. No. 241/1982 before the Lahore High Court, against, their conviction and sentences. The learned Division Bench of the High Court which heard the appeals found the case of Safdar Ali, Mohammad Rafiq, Saghir Ahmad and Abdur Rahim highly doubtful and while accepting their Appeal No.241/1982, acquitted them from all the charges. The learned High Court also found the part ascribed to Akbar Ali does not find any corroboration of ocular testimony and he was also given the benefit of doubt and acquitted him from all the charges levelled against him. The learned Judges of the Division Bench found the case only against Talib Hussain respondent established and maintained his conviction under section 302, P.P.C. but altered his sentence from death to life imprisonment. His sentence of fine was maintained which on realization to be paid to the heirs of the deceased. However, his conviction under section 148, P.P.C. and sentence awarded there-under was set aside and case under section 149, P.P.C. against was found not applicable. With this modification his appeal was dismissed and his death sentence was not confirmed. We have heard the learned counsel for the petitioner and gone through the record of the case. According to the ocular testimony, Talib Hussain brother of Akbar Ali caused fire-arm injuries to the deceased. He was alleged to have been armed with a gun and the crime empty recovered from the spot according to the opinion of the fire-arm expert matched with the gun recovered from him. The learned High Court have dealt with uncertainty as to whether the fatal shot was attributed to Talib Hussain or his brother Akbar Ali as both of them fired simultaneously at the deceased and hit him on his right flank and the learned Judges of the High Court came to the conclusion that since the prosecution has succeeded in establishing its case against Talib Hussain, his conviction under section 148, P.P.C. and sentence awarded there-under was uncalled for and accordingly it was set aside. His conviction under section 302, P.P.C. was maintained but his sentence of death was altered to life imprisonment. We have considered the submissions made by the learned counsel for the petitioner in the light of the evidence on record and the finding of the High Court. We are satisfied that the learned Judges of the Division Bench have thoroughly evaluated the evidence on sound principles of perusal of evidence. Therefore, no case has been made out for our interference in the impugned judgment. This petition is dismissed accordingly. M.A.K./M-1057/S Petition dismissed.