1995SCMR347 (PLP)

SAIDUZZAMAN SIDDIOUI, J.‑‑‑The appellant alongwith co‑accused Abbas, Ali Nawaz, Imam Ali, Pathan, Sajan, Ghulam Qadir alias Qadoo, was tried for murder of one Abdul Wahid and for launching murderous assault on Gul Hasan (P.W.10) and Shamsuddin (P.W.5) under section 302/148/149/307, 504/149, P.P.C. by the Additional Sessions Judge, Nawabshah. Imam Ali, one of the accused, absconded during the trial and he was declared absconder by the trial Court on 16‑7‑1990. Out of the remaining accused in the case the trial Court found the appellant, Abbas and Ali Nawaz guilty of the offence of murder of Abdul Wahid and accordingly, convicted them under section 302, P.P.C. and sentenced them to life imprisonment and fine of Rs.5,000 each or in default of payment of fine to suffer further R.I. for one year. The amount of fine on recovery was directed to be paid to the heirs of the deceased by way of compensation. On appeal by the appellant, Ali Nawaz and Abbas against their conviction and sentence as aforesaid a learned Judge in Chambers of the High Court of Sindh, acquitted accused Ali Nawaz and Abbas in the case giving them the benefit of doubt but maintained the conviction and sentence of the appellant extending him the benefit of section 382‑B, Cr.P.C. Leave was granted against the judgment of High Court in the case on the jail petition of the appellant to consider the following points:‑‑ "

6. Leave is granted to evaluate the evidence brought on the record in order to find out whether principles of administration of criminal justice have been complied with. or not as on the basis of same evidence, trial Court had acquitted three persons and High Court in appeal another two persons. In the evidence, for corroboration P.W.6 Adam Khan attested recoveries of all weapons including gun from Punhoon and crime empties. Evidence of Mashir Adam Khan is assailed on the ground that he is close relation of complainant and there was long delay in sending the gun and crime empties to the Ballistic Expert and further defence evidence produced by the Petitioner, if read in juxtaposition with prosecution case, would render case against petitioner doubtful. In the result petition is allowed." The learned counsel for the appellant contended before us that appellant's case was at par with the acquitted accused who were also attributed firing on the deceased Abdul Wahid, alongwith the appellant; and the learned Judge in Chambers having disbelieved the evidence of prosecution witness in respect of acquitted accused could not convict the appellant on the basis of the same evidence. The contention of the learned counsel has no merit. The case of the appellant is distinguishable from the case of acquitted accused Ali Nawaz and Abbas. In .the F.I.R. which was lodged by Haji Ali Muhammad (P.W.4), an eye witness, he made the following statement against the appellant:‑‑ "But being infuriated, accused Punhoon directly fired at my brother deceased Abdul Wahid alias Ghulam Sarwar which hit him on right side near the flank, while the other accused persons also directly fired at which hit my brother, Abdul Wahid alias Ghulam Sarwar on his right nipple, thigh, arms and hands, as a result of which he fell down and expired on the spot:" From the above statement in the F.I.R. it is quite clear that the first shot was tired at the deceased by the appellant. The learned judge in chambers while considering the case of acquitted accused Ali Nawaz and Abbas observed as follows:‑‑ "Adverting to the case of appellant, Ali Nawaz and Abbas although Mashir Adam Khan has stated in his evidence that accused Abbas and Ali Nawaz had produced Lathis from their respective houses but no such Mashirnama has been produced on the record. According to prosecution accused Abbas and Ali Nawaz were armed with guns but no guns have been recovered from them. S.H.O. Mumtaz Ali who had arrested the accused and made the recoveries of weapons from some of the accused has not said a word about recoveries from accused Ali Nawaz and Abbas and, therefore, the only logical conclusion can be that no recoveries of weapons from some of the accused has not said a word about recoveries from accused Ali Nawaz and Abbas and, therefore, the only logical conclusion can be that no recoveries were made from accused Ali Nawaz and Abbas. Three co‑accused have been acquitted as evidence of recovery against them was doubtful and the case of appellants Ali Nawaz and Abbas stands on a better footing. In view of the `above discussion since there is no corroborative evidence against appellant Ali Nawaz and Abbas, while extending the benefit of doubt to them their appeal is allowed, their convictions and sentences are set aside and they are acquitted of the charges. They shall be released forthwith if not required in any other case:' The case against the appellant was distinguished from the case of acquitted accused in the case by the learned Judge in Chambers, as follows: "As far as Punhoon is concerned, the ocular evidence is corroborated by recovery of gun from him. The evidence of Mashir Adam shows that 5/10 cartridges were recovered from the place of Wardat which were secured by police under Mashirnama. Later on, the accused were arrested and accused Punhoon had produced a single barrel gun. The evidence of Mashir Adam is supported by S.H.O. Mumtaz Ali and the report of Ballistic Expert Exh. 39 is in positive. As far as the defence of appellant Punhoon was concerned P.W. Ali Asghar has deposed that police had also searched his house and had taken away his licensed gun alongwith 5/6 cartridges. He was also taken to P.S. where S.H.O. had fired from his gun in order to ascertain whether it was in working order. However, he was released after some time and was not challaned in the case. The S.H.O. had taken his gun from his house alongwith licence. In cross‑examination he has admitted that he had not reported the matter to the police that dacoits had attacked their village. He is admittedly nephew of accused/appellant Punhoon and the fact that he did not make any complaint to any higher authority against the police about taking away his gun, no reliance could be placed on his evidence. As far as evidence of Muhammad Siddique D.W.2, is concerned, it mainly concerned to recovery of co‑accused Imam Ali. As far as the evidence of defence witnesses that the dacoits had attacked their village on the night of incident, it is belied by the fact that no report was lodged either by them or some other villagers with police about the attack by dacoits and, therefore, the defence evidence led by the accused is interested and unreliable." From the above discussion, it is quite clear that the case against the appellant as disclosed by the eye‑witnesses, was fully corroborated by the circumstantial evidence in the case and as such the learned Judge in Chambers rightly convicted him for the offence of murder of deceased Abdul Wahid m the case. The above quoted conclusions drawn by the learned Judge in Chambers from the prosecution evidence in the case, do not suffer from any infirmity. No case for interference with the judgment of High Court is made out. The appeals arc, accordingly, dismissed. N.H.Q./P‑240/S Appeals dismissed.