1980 PLP 481 (SCMR)

Nemo for the State. Date of hearing : 7th January, 1980. MUHAMMAD HALEEM J.‑The petitioners seek special leave to appeal against the judgment of the High Court of Sind, Karachi, dated 28th of August, 1979, by which Criminal Appeal No. 305 of !976 was dismissed. The petitioners and four others, namely, Arab, Gullo, Faqiro and Gulab were tried for the murder of Janoo under section 302 read with section 149, P. P. C. and for offences under sections 324 and 353 read with section 149, P. P. C. by the Sessions Judge, Larkana, who acquitted Gullo, Faqiro and Gulab and convicted the others under the aforesaid sections and sentenced them to imprisonment for life and to pay a fine of Rs. 2,000 or in default to suffer R. I. for one year on the first count and on the others to R.I. for one year each by judgment dated 20th of November, 1976. On appeal to the High Court, the convictions of the petitioners were maintained but Arab was acquitted. According to the prosecution, one Achar was murdered at 8.30 a.m. on 22nd of September, 1974, and a report of this incident was lodged by his brother, Gul Muhammad Gadehi, at Police Station Bakrani, the same day at 3.15 p.m. He returned from the police station alongwith Tashkeel Hyder, S. H. O., Head Constable Khadim Hussain and Police Constables Qalab Hussain, Muhammad Amin and Mahboob Ahmad in a jeep. After despatching the dead body to the mortuary they went to village Ali Bagh to arrest the assailants namely, Janoo, Kirar, Gullo and Shaman and succeeded in arresting them there. They also secured a hatchet from Janoo. As the Police party boarded the jeep alongwith these persons, they were attacked with hatchets by the first three petitioners and those acquitted and from amongst them Faqiro and Gulab caused two hatchet blows to Shaman while Gullo caused a hatchet injury to Rafiq, the cleaner of the jeep. In the meantime Janoo and Kirar escaped from the jeep and ran towards the Otak of Bakhir but they were pursued by Bakhir, Arab, Mahrab and Bakhshal and Janoo was given hatchet blows in the Otak as a result of which he succumbed to his injuries. Tashkeel Hyder, S. H. O., and Muhammad Amin managed to arrest these assailants and in order to save the other arrested persons sitting in the jeep, Khadim Hussain and Mahboob Ahmad fired shots in the air. The dead body of Janoo was sent to the mortuary and, thereafter, the S. H. O. alongwith the other arrested persons went to Police Station, Dokri where he lodged the first information report at 8.30 p. m. The High Court, while appraising the ocular evidence, repelled the con tention that the members of the Police party had not witnessed the occur rence as they were enjoying a feast given by the first petitioner in his otak as it was Iftari time eminently for the reason that blood was seen in the Otak of this petitioner and, therefore, it was difficult to exclude them from the category of eye‑witnesses. Again, if it was to be accepted that they were not there then the High Court held that it was not possible to reconcile the arrest of these petitioners and Arab from the Otak. The participation of Bakhir according to the High Court, was further substantiated by the recovery of the blood‑stained hatchet from his possession at the spot and of the others by the number of incised injuries found on the deceased. Further, the High Court held that the recovery of the bullet cases also substantiated the allegation that the Police Constables had fired in the air. The learned counsel, in seeking leave to appeal, contended that the evidence of the members of the Police party should not be accepted for the reason as given above; and that of the others being inimical, it should not be relied upon without corroboration. This contention relates to the appreciation of evidence and the High Court having held that it was witnessed crime, we see no reason to differ from its view in the absence of any substantial reason to discard their evidence. Besides, the capture of the petitioners at the spot corroborates the ocular testimony which is sufficient to bring home the guilt to them even if the identification of the hatchet was not established as one of them was not found to be stained with blood. Accordingly, there is over‑whelming evidence to support they conviction of these petitioners. Lastly, the learned counsel contended that as the identity of the hatchet was not established, the High Court fell into an error in holding that it belonged to Arab while acquitting him. Even if that be so there are other confirmatory circumstances, which the High Court has accepted to uphold the participation of these petitioners. The erroneous acquittal of Arab will not be of any help to the case of the petitioners. For these reasons the petition has no substance and is dismissed. Petition dismissed.