1987 PLP 667 (SCMR)

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Petition against conviction‑‑Recovery of crime weapon stained with human blood‑‑Plea raised that recovery witnesses being inimical and interested whose evidence was not believed against co‑accused, should not have been relied upon‑‑Since recovery was also witnessed by Investigating Officer who conducted investigation honestly, his evidence could not be rejected‑‑Offence having been established against petitioner, conviction upheld and considering background of case, Supreme Court refused to interfere with discretion of High Court in not confirming sentence of death‑‑Leave to appeal refused. M.B. Zaman, Advocate Supreme Court instructed by Sh Ijaz Ali, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 1st February, 1987 SAAD SAOOD JAN, J.‑‑ These are two petitions for special leave to appeal. They arise in the following circumstances. Ahmad, petitioner in Cr1.P.S.L.A. No. 163, was tried by the Additional Sessions Judge at Sargodha alongwith four others, namely, Mehmoora, Baksha, Afzal and Yousaf, for causing the death of Shera deceased. The learned Additional Sessions Judge acquitted Baksha, Afzal and Yousaf but convicted the petitioner and Mehmoora of an offence under section 302, read with section 34 of the Pakistan Penal Code and sentenced them to death and to pay fines. On appeal the High Court acquitted Mehmoora but upheld the conviction of the petitioner. It maintained the sentence of fine but reduced the sentence of death to imprisonment for life. Ahmad seeks leave to appeal to challenge his conviction and sentence. Bahawali, brother of Shera deceased, has filed Crl. P. S. L. A. No. 155 to challenge the acquittal of Mehmoora and to seek enhancement of the sentence of Ahmad.

2. About 13 years prior to the occurrence when Ahmad was a young boy his father was murdered. For causing his death a number of persons including Shera deceased were put on trial. He was acquitted by the Sessions Judge. It was alleged by the prosecution that to take revenge for that murder Ahmad together with the acquitted co‑accused attacked the deceased on 30‑7‑1986 at 6‑00 p.m. when he and his brother Bahawali were returning on mares from Haveli Bahadur Khan to their Dera. Ahmad and Mehmoora were allegedly armed with hatchets while Baksha, Afzal and Yousaf were empty handed. Ahmad as well as Mehmoora gave a number of hatchet blows to the deceased who died at the spot. The occurrence was reported by Bahawali at Police Station Kot Momin on the same evening at 7‑00 p.m.

3. At the trial the ocular evidence against Ahmad and the acquitted co‑accused was provided by Bahawali and one Bashir. On his own showing Bashir was a chance witness. Apart from that he was a close associate of Bahawali. The learned Additional Sessions Judge and the High Court were of the opinion that in view of the background of enmity between the parties it was not safe to rely upon their testimony without independent corroboration. As no corroboration was available against the acquitted co‑accused the learned trial Court acquitted Baksha, Afzal and Yousaf. For the same reason the High Court rejected the criminal revision preferred by Bahawali and acquitted Mehmoora also. After going through the record we find no reason to take a different view of the evidence.

4. However, the case of Ahmad is distinguishable from that of the acquitted co‑accused. It is in evidence that at the time of his arrest he had produced a blood‑stained hatchet before the Investigating Officer. The blood on the hatchet was later found to be of human origin. Apart from the Investigating Officer this recovery was also witnessed by Bahawali and Bashir. The trial Court as well as the High Court regarded this recovery as genuine and held that it lent credibility to the ocular testimony with regard to the responsibility of Ahmad for the death of Shera deceased.

5. Learned counsel appearing for Ahmad contends that as both Bahawali and Bashir had been found to be inimical and interested witnesses their evidence with regard to the recovery of hatchet ought to have been rejected also, for, the reason that one tainted piece of evidence could not be used to confirm another tainted piece of evidence. No doubt there is force in this argument but then apart from Bahawali and Bashir the recovery was also witnessed by the Investigating Officer. We find no reason to reject his testimony. He appears to have conducted the investigation honestly. It he wanted to create false evidence he could have easily planted a blood‑stained hatchet on Mehmoora also. We should, therefore, think that his evidence was rightly accepted by the Courts below.

6. Taking the evidence of Bahawali and Bashir together with the evidence of the Investigating Officer in respect of the recovery of the Mood‑stained hatchet at his instance we are satisfied that Ahmad was rightly convicted of an offence under section 302 of the Pakistan Penal Code. Considering the background in which Shera deceased was killed we are not prepared to interfere with the discretion of the High Court in not confirming the sentence of death awarded to Ahmad by the trial Court. We would accordingly dismiss both the petitions. M.I. /A‑9/S????????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed