1999 PLP 162 (SCMR)

S.302/34

Constitution of Pakistan (1973), Art. 185

Appraisal of evidence

Ocular evidence was corroborated by incriminating recoveries

Crime empties found at the spot had matched with the carbine recovered at the instance of one accused whereas the knife recovered at the instance of other accused was found to be stained with human blood

Question of seeking corroboration against the acquitted co-accused was irrelevant as they had not participated in the attack and were only accused of having hatched the conspiracy which charge was not proved by the prosecution

Conviction and sentence of accused were upheld in circumstances. M. Ibrahim Satti, Advocate Supreme Court for Appellants. M. Zawar Bhatti, Advocate Supreme Court for the State. Date of hearing: 1st July. 1998. SH. RIAZ AHMED. J.--Appellants Khalid alias Khaloo, Ashraf, Noori and Safdar alongwith Sarwar and Nazir were tried by an Additional Sessions Judge at Blialwal on charges under section 302,134, P.P.C. for having committed murder of Khalid deceased. Vide judgment dated 16-2-1991 the learned Additional Sessions Judge found the appellants guilty of the said charge while co-accused Yousaf and Nazir were given benefit of doubt and were acquitted. The appellants were convicted and each of them was sentenced to death and to pay a fine of Rs.20,000 each or in default thereof to suffer R.I. for a term of 5 years each. In the event of recovery of fine, out of it Rs.60,000 were ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. On appeal and the murder reference, the Lahore High Court, while maintaining the conviction, sentence of death was commuted to imprisonment for life in respect of all the appellants and the sentence of fine was maintained and thus the appeal was dismissed.

2. The appellants filed two separate petitions through jail seeking leave to appeal and this Court vide its order dated 1-10-1995 granted leave to consider as to whether there was any corroborative piece of evidence against the appellants so as to distinguish their case from that of the acquitted accused

3. The prosecution case in brief is that on 31-5-1986, the first informant Khan P.W. I I alongwith his son Khalid deceased and Ali Muhammad boarded a bus at Kot Momin for proceeding to their Dera in village Buteha Khan. On their way they got down from the bus and proceeded towards the brick-kiln of Ghulam Rasool for purchasing bricks. Said Ghulam Rasool was not present and after waiting for a considerable time for his arrival, the first informant, Khalid deceased and Ali Muhammad then proceeded on foot to their village and at about 3-30 p.m. when they reached Bhabera Road near the Dera of Jehan Khan, suddenly, the appellants alongwith acquitted co-accused variously armed emerged from behind a hedge. Khalid appellant raised a Lalkara to the effect that he had come to avenge the murder of his grandfather and, would not let the complainant side go alive. Appellant Noori then inflicted a spear blow on the right side of chest of Khalid deceased, who on receipt of the injury was about to fall when appellant Khalid alias Khaloo fired a shot from his carbine which hit the deceased on his right arm and right chest whereupon the deceased fell down. Ashraf appellant then inflicted a knife blow on the back side of the chest of Khalid. Safdar appellant then inflicted a knife blow on the right side of the head of the deceased. Appellant Ashraf then inflicted two successive blows on the back side of shoulder and chest. Similarly, Safdar appellant further inflicted three blows on the right side of neck, shoulder and right arm of the deceased. Ashraf again inflicted two blows on the forehead and on the right side of the chest of the deceased.. Appellant Khalid during the attack kept on firing in the air on account of which the first informant and others could not go near the scene of occurrence. Thereafter, all the appellants while raising Lalkara escaped from the scene of occurrence. Khalid succumbed to the injuries at the spot. The first informant further stated that on the fateful day at Kot Momin Bus Stop, Muhammad 1qbal and Ghularn Nabi told him that on 30-5-1988 when they had gone to the Dera Moula Bakhsh, they saw Yousaf and Nazir acquitted co -accused alongwith appellant Khalid and they heard Yousaf and Nazir asking appellant Khalid as to why he was not taking any step to take revenge of murder of his grandfather and then they suggested to appellant Khalid to kill the deceased. The motive for the commission of offence as stated in the F.I.R. was that about 33/34 years ago the first informant had killed the father of Yousaf and Nazir acquitted co-accused and thus in order to seek revenge the appellants at the abetment of the acquitted co-accused had killed Khalid.

4. After recording the F.I.R. the investigating officer reached the scene of occurrence and despatched the dead body to the hospital for post-mortem examination. On 31-5-1988 at about 5-45 p.m. P.W.1 Dr. Riaz Ahmad conducted post-mortem examination and noted I incised wounds on the dead body of the deceased. Injury No.6 had pierced through the sixth inter-costal space into chest and ruptured pleura and right lung. Under injury No.10 appellants were removed. According to the doctor, three injuries were grievous in nature. One of the injuries was inflicted with a fire-arm while rest of the injuries had been caused with a sharp-edged weapon. In the opinion the doctor, death had occurred due to shock and haemorrhage under injury No. 1, which was sufficient to cause death in the ordinary course of nature.

5. At the spot 3 empties P3/1-3 were lying which were taken into possession by the investigating officer vide memo. P.E. On 9-6-1988 appellant Noori was arrested and at his pointation, blood-stained Ballarn (spear) P.8 was recovered vide memo. P.J. Appellant Ashraf also led to the recovery of blood stained knife P.7, which was also taken into possession vide memo. P.I. On 10-6-1988 Khalid appellant was arrested and on search of his person Carbine PA alongwith 3 cartridges P.5/1-3 were recovered, which were taken into possession vide memo. P.F.

6. We have heard the learned counsel at length. In order to substantiate its case the prosecution mainly placed reliance upon the ocular testimony furnished by Khan P. W. 11 and Ali Muhammad P. W.

12. The ocular testimony was sought to be corroborated through recoveries. The empties found at the spot matched with the carbine recovered at the instance of Khalid and the knife recovered at the instance of Safdar was found to be stained with human blood. In this case leave was granted to consider as to whether there was any corroborative piece against four convicted accused so as to distinguish their cases from that of the acquitted co-accused. We have considered this aspect very carefully and as already observed the acquitted accused in this case, namely Muhammad Yusuf and Muhammad Nazir were accused of having hatched a conspiracy with Nazra and Khalid to murder the deceased. The prosecution evidence qua the acquitted accused was deposed to by 1qbal P.W.8, who stated that on 30-5-1988 he accompanied by Ghularn Nabi had gone to Dera of Moula Bakhsh where Muhammad Yusuf and Muhammad Nazir son of Moulu alongwith Khalid were present. The witness further stated that in his presence Yusuf and Nazir were asking Khalid that they should avenge the murder of his grandfather by murdering Khalid son of Khan, so that Khan P.W. would lament the murder of his son. At the trial, Ghularn Nabi who had accompanied lqbal P.W.8, was not produced. In this view of the matter, the sole testimony on the question of alleged conspiracy deposed to by lqbal P.W. was rightly disbelieved by the trial Court. We have gone through the statement of lqbal P.W and we find that on the question of conspiracy no credence to such statement can be given and therefore the benefit of doubt was rightly extended to the acquitted co-accused. It is further pertinent to mention that the acquitted co-accused had not participated in the attack. The assault had been launched only by Khalid alias Khaloo son of Muhammad Yusuf armed with a .12 bore carbine whereas Ashraf and Safdar each had a knife and Noori was armed with a Ballam. It is thus obvious that only on the basis of statement of lqbal P.W, the acquitted co-accused could not have been convict6d on the charge of conspiracy and thus they were rightly acquitted by the learned trial Judge. The case of the four convicts whose death sentences were altered to imprisonment for life on valid reasons is distinguishable from that of the acquitted co-accused. The necessity for looking corroboration against the acquitted co-accused would have arisen only if they had participated in the attack. Since they were only accused of having hatched a conspiracy, which charge could not be proved by the prosecution, therefore, the question of seeking corroboration against them is irrelevant. In this view of the matter, we do not find any force in this appeal. The appellants were rightly convicted and, therefore, this appeal is dismissed. N.H.Q./M-221/S Appeal dismissed