1988 PLP 477 (SCMR)

ASLAM RIAZ HUSSAIN, J.--Mukhtar Ahmad petitioner has been convicted and sentenced to imprisonment for life for the murder of Muhammad Amjad.

2. The motive for the murder is stated to be that 4 years prior to the present occurrence Mukhtar Ahmad petitioner was injured by Irshad, Mushtaq and Mukhtar son of Sattar. A case under section 326 P. P. C . was registered against them. It is alleged that in this case Amjad (deceased) had helped the aforesaid accused persons.

3. The prosecution case briefly is that on 13th December, 1982 at about 5 p.m. Shaukat Ali (P.W.9) and the complainant, Muhammad Afzal (P.W.8), were present at the shop of Saghir Ahmad (not examined). Muhammad Amjad (deceased) reached there on a cycle from Mian Channu. He had some conversation with the witnesses and then went away towards his house. Sagheer Ahmad closed the shop just then and the witnesses also started towards the side to which the deceased had gone. As the witnesses reached the corner f the street, they saw the deceased approaching the Ihata of the petitioner. The petitioner armed with a gandasa and the two acquitted accused armed with hatchets came out of their Ihata raising lalkara and assaulted the deceased. It is alleged that Abdul Hafeez, acquitted accused had opened the attack and gave a hatchet blow on the left shoulder of the deceased. He fell down from his cycle. Thereafter he was given 3 or 4 hatchet blows on his back by Nazir Ahmad, the other acquitted. Mukhtar Ahmad petitioner gave a gandasa blow on both the arms of the deceased, and left wrist was separated. After causing injuries to the deceased and accused made good their escape alongwith their respective weapons. The witnesses carried the injured to the Civil Hospital where he died.

4. The appeal filed by Mukhtar Ahmad petitioner was dismissed by the High Court. He has now filed the present petition for leave to appeal before this Court.

5. Learned counsel for the petitioner adverted our attention to the observation of the trial Court in paragraph No.11 of its judgment (at page '41 of the Paper Book) that:

"In view of these facts and appreciation, the evidence account cannot be accepted to clinch the charge against the accused entailing capital punishment unless corroborated by some other piece of independent evidence or circumstance appearing on the record." He then submitted that in paragraph 13 of its judgment the trial Court had relied on the motive and the recovery of the blood stained gandasa from the accused-petitioner as corroboration of the testimony of the eye-witnesses. But he pointed out, that the court had itself observed in paragraph 10 of its judgment that the motive part of the story given in the FIR and deposed to by the complainant is not proved; and that the recovery of the blood-stained gandasa was made after 6 days. He relied on Pir Bakhsh and 3 others v. The State 1972 S C M R 940 to argue that leave had been granted where the recovery of the incriminating article had been made only after 4 days and that as such there is no corroboratory evidence left to corroborate the ocular testimony.

6. We have considered these contentions. In the first place the High Court has relied on the evidence of motive and in any case the evidence for the recovery of the blood-stained article is very material piece of evidence to corroborate the ocular testimony. The Leave Granting Order reported as Pir Bakhsh and 3 others v. The State 1972 S C M R 940 does not advance his case as the appeal arising out of that Leave Granting Order was disposed of as compromised and the question of the effect of delay of 4 days in the recovery of the incriminating article in that case was not decided. We feel that a delay of 6 days in the present case is not material in the circumstances of the case. As such the courts below were justified in treating the recovery of the blood-stained gandasa from the accused corroboratory piece of evidence. In view of the foregoing discussion leave is refused to the petitioner. M.I./M-303/S. Petition dismissed.