1974 PLP 1 (SCMR)

On this account, it is said that when the deceased was returning from Rohri after making some purchases along with his cousins, Muhammad Jurial and Jan Muhammad, they were accosted near the shop of one Nizami uddin Memon by the petitioners and the co‑accused. The petitioners were armed with '12 bore pistols while the co‑accused had a hatchet. The petitioner No. 1 challenged the deceased telling him that the day of his death had finally arrived, and then fired with the pistol which hit the deceased on the right side of his chest. The deceased attempted to take shelter in the shop of Nizamuddln Memon, but he received another shot fired by the petitioner No.

2. Thereafter, he was dragged out of the shop and savagely dismembered by hatchet wounds. His bead was completely severed from the body. Both his legs and hands were alto cut off and thrown into the canal nearby. The F. I. R. was lodged by Jurial at Rohrl Police Station, a mile away from the scene of incident at 3‑30 P.m. The investigation was taken up almost immediately. When the Police Officer arrived at the scene of incident he found only one hand with the body, namely, the left hand. He arrested all the three accused on the 5th of January 1970. After the arrest, the petitioner No. 1 took the police to two places near the canal where the limbs of the deceased were said to have been thrown into the water. From the second place a country‑made pistol, smelling of powder, was recovered. The clothes In his wearing were also taken into possession as they appeared to be blood‑stained. Jiand's shirt was also taken into possession as it appeared to be blood-stained and at his instance a hatchet was recovered from the roof of his house which too appeared to be blood‑stained. On the following day, the petitioner No. 2 led the police to another place where a country‑made pistol was recovered at his pointing out. No clothes in the wearing of this accused were taken into possession. The origin of the blood on the shirt of Jiand could not be determined as it had disintegrated, but the blood on all the remaining articles seized by the police was found to be of human origin. The two pistols were also sent to the Ballistic Expert but he reported that no definite opinion could be expressed as to the last fire from the weapons due to lack of sufficient identifiable data. Apart from this, the prosecution case was sought to be established by the oral testimony of five eye‑witnesses of whom three, namely, Jurial, Jan Muhammad and Hussain Bakhsh son of Taj Muhammad, were related to the deceased while two, namely, Hussain Bakhsh son of Dhund and Ali Sher, were unrelated. The trial Court, after consideration of the evidence, acquitted Jiand but found the petitioners guilty under section 302/34 and sentenced them both to death. On appeal and reference, a Division Bench of the Sind & Baluchistan High Court has dismissed the appeal and confirmed the sentences of death. The petitioners now seek special leave t9 appeal. The learned counsel appearing in support of this petition bas sought to contend that the reliance placed by the High Court on the two unrelated witnesses was unjustified because they were neither witnesses on whom implicit reliance could be placed nor persons who were wholly disinterested. In any event, the High Court had not noticed that both these unrelated witnesses were related inter se and one of these witnesses was not even named In the F. I. R. Apart from this, sufficient Importance, it is said, has not been attached to the fact that even these unrelated witnesses falsely implicated Rand, who has since been acquitted and actually ascribed to him the most heinous part of the crime, viz., the dismemberment of the body of the deceased. It may be pointed out teat Jiand had set up a plea of alibi and examined two witnesses in support of this plea. It was accepted by the trial Court, but the High Court was not satisfied that the plea of alibi was proved satisfactorily. It did not exclude the possibility of the accused Jiand participating in the crime and still being able to be present at the place where he says he was. But his acquittal was maintained by the High Court on the ground that neither of the unrelated witnesses bad mentioned him as one of the persons participating in the crime. Be that as it may, so far as the petitioner Mubarram is concerned the oral testimony is abundantly corroborated by the discovery of human blood stains on his shirt and loin cloth. His conviction, therefore, is based on sound principles. The learned counsel, however, contended that so far as the petitioner Mumtaz is concerned, there is nothing to corroborate the oral testimony of the witnesse3, since the pistol recovered at his instance has not been connected with the crime. No blood‑stained clothes were also recovered from him. In the circumstances, the learned counsel urges that his case at least needs re‑examination. We are unable to agree with the learned counsel because the oral testimony of the unrelated witnesses, who have been considered dependable by the Courts below, fully implicates the petitioner Mumtaz. It has been found that they were not exaggerating the number of the culprits participating in the crime. Indeed, their evidence also is in no way in conflict with the medical testimony. They had no enmity with the petitioners and their statements were recorded by the police immediately after the incident. Their presence, therefore, is also confirmed. They both maintained that the deceased was followed while he was trying to take shelter into the shop of Nizamuddin by both the petitioners and it was the petitioner Mumtaz who actually fired at him. On this evidence there can be no case for the exclusion of the petitioner Mumtaz. In any event, all the questions raised by the learned counsel relate purely to the appreciation of evidence which is not the function of this Court. In these circumstances, there is no sufficient ground for granting leave. Both the petitions are, accordingly, dismissed. Petitions dismissed.