1990 PLP 257 (SCMR)

Raja Muhammad Anwar, Advocate Supreme Court and Muhammad Aslam Chaudhary, Advocate‑on‑Record for Respondent No.l. Date of hearing: 20th August, 1989 ZAFFAR HUSSAIN MIRZA, J.‑‑Respondent No.l, Khudadad (hereinafter referred to as the respondent) was tried alongwith three others for the murder of Ghulam Dastgir and murderous assault on Muhammad Sarwar and Ghulam Samdani in furtherance of their common intention by the learned Sessions Judge, Rawalpindi who acquitted the three co‑accused by giving benefit of doubt to them and convicted the respondent under section 302, P.P.C. awarding him death sentence as well as fine directing compensation etc. A Division Bench of the Lahore High Court before whom the case came for confirmation of death sentence and for consideration of the appeal filed by the respondent and a revision filed by the present petitioner against the acquittal of the co‑accused, accepted the appeal of the respondent and he was acquitted vide judgment dated 3rd October, 1987. The death sentence was accordingly not confirmed. The petitioner now seeks leave to appeal from the judgment of the High Court by this petition. The occurrence in this case is said to have taken place on 24th‑April, 1982 at 6‑00 a.m. in front of the house of the respondent in village Siham. According to the prosecution case the deceased who was also the resident of the same village, left his house at 6‑00 a.m. followed by his two brothers the aforesaid Muhammad Sarwar and Ghulam Samdani and their uncle Maula Dad. It is alleged that when the deceased and his companions were passing in front of the house of the respondent, he was present in his courtyard alongwith the co- accused and upon seeing them launched an attack shouting that they would avenge the murder of Muhammad Hussain. The respondent was attributed fire arm shot at the deceased with his carbine as a result of which he died. As the respondent himself had received injuries at the time of occurrence, the prosecution explained that co‑accused Ghulam Hussain who was armed with a gun was trying to load the same but accidentally it went off and the shot injured the legs of the respondent. The motive for the crime is said to be prior criminal litigation between the parties and their close relations. According to the medical evidence the deceased had three fire‑arm wounds which were the result of one shot. The respondent had two blunt weapon injuries and three fire‑arm injuries besides swelling on the right thigh. The respondent gave his own version of the occurrence in his section 342, Cr.P.C. statement. According to him Maula Dad, Ghulam Samdani, Muhammad Sarwar and Ghulam Dastgir (deceased) alongwith some others, duly armed with fire‑arms criminally trespassed into his house and resorted to indiscriminate fire as a result of which he sustained fire‑arm injuries. But as he took shelter in one of the rooms of his house, the culprits continued firing, the shots hitting the wall and doors of the room. According to the respondent when the police came on the scene and he was brought out of the room he learnt that the deceased had been killed as a result of the indiscriminate firing of his other party men. He also denied the alleged recovery of carbine at his instance. He pointed out that he had enmity with Maula Dad his real brother over the inheritance of property on account of which they were locked in civil litigation. Maula Dad having married with the Pophi (aunt) of the deceased was siding the deceased's party. The ocular version was furnished by Muhammad Sarwar (PW 7) and Maula Dad (PW 8). These witnesses were also the witnesses on motive and recoveries. The learned Judges of the High Court upon examining the evidence came to the conclusion that the motive on which reliance was placed by the prosecution was not proved and the real motive for the occurrence was shrouded in mystery. They also discarded from consideration the evidence of recoveries as the same was found discrepant and unworthy of credence. It was pointed out that the empty secured from the spot was not sealed into a parcel and there was no evidence that this empty was taken to the Police Station and transmitted to the Laboratory. No mention of the presence of empty was made in the FIR or the inquest report. As to the recovery of the carbine at the instance of the respondent also the learned Judges found discrepancies in the testimony of Amir Afzal, S.I. (PW 1) and Allah Yar, A.S.I. (PW 3). The latter had state that the sealed parcel of the carbine was given to him for safe custody in the Mal Khana by the S.I. on 24th April, 1982, whereas the S.I. and Muhammad Sarwar (PW 7) and Maula Dad (PW 8) stated that the recovery was effected much later on 3rd May, 1982. Learned Judges of the High Court also found the ocular testimony furnished by Muhammad Sarwar (PW 7) and Maula Dad (PW 8) as unworthy of reliance. On account of extensive litigation between the parties, it was found that the eye‑witnesses were biased against the respondent and their testimony was unreliable unless corroborated by the independent evidence which was not produced. Finally and above all the learned Judges relied on the physical circumstances obtaining at the scene of occurrence which reacted on the prosecution case very adversely. This was the fact that the occurrence had taken place inside the house of the respondent and he had sustained injuries. His version that the deceased and his companions were the aggressors received support from the fact that wads and pellets were found lying in the verandha of the house of the respondent. Also the gauze of the room and the walls of the room bore marks of pellets and bullets. If the respondent was the assailant who had fired at the deceased and his party men while they were passing in front of his house, there is no reason for the marks of gun shots on the walls and rooms of the house of the respondent. We have heard the learned counsel for the petitioner who has urged that the reasons that prevailed with the learned Judges of the High Court are not valid and the conviction of the respondent was based on reliable evidence. We are in agreement with the view taken by the learned Judges of the Division Bench which is based on sound reasons and we find no ground to interfere in this case. There is thus no merit in this petition which is accordingly dismissed. N.H.Q./M‑1146/S Petition dismissed.