1985 PLP 1818 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Petitioner and his brother Ranjho And their father Abdul Majid were tried by Additional Sessions Judge, Larkana under section 302/39 of the Pakistan Penal Code for having paused the murders of petitioner's wife, Mst. Razia, and her paramour Ali Nawaz. Learned trial Judge held the petitioner and his brother guilty, whereas he granting benefit of doubt, acquitted their father. The two convicts filed a joint appeal in Sind High Court, which was Allowed by the judgment, dated 29‑8‑1980 in so far as petitioner's brother was concerned and was dismissed as regards the petitioner. He now seeks leave to appeal. The murder of Ali Nawaz took place on 10‑2‑1976 at about 6.00 p.m. on the road near the factory of Nanak Ram in the village and was reported at Naodero Police Station, Larkana two furlongs away by Ghulam Kadir uncle of the deceased. Mst. Razia's murder took place half an hour later on the same day in petitioner's house and was reported by her father Ali Hyder at the same police station. According to first informant Ghulam Kudir, while he was returning hunt, after finishing his duties in Naodero Sugar Mills, he went 10 purchase some household articles from the shop of one Panjal. Muharam (P.W.) also came and both left the shop together for home. When they reached the factory of Nanak Ram they saw Ali Nawaz and Ali Hyder coming from the northern side, of the road, and they heard a challenge from the petitioner and his brother who were armed with hatchets. Their father Abdul Majid who was accompanying them was empty‑handed. On the instigation of Abdul Majid, his two sons killed Ali Nawaz with hatchets, and before any one could intervene they ran away. While the S.H.O. was conducting investigation of this crime at the site, after the F.I.R. made by Ghulam Kadir was registered, another F.I.R. was lodged at the same police station by Ali Hyder, father of the deceased Mst. Razia, about her murder. At the trial, prosecution relied on the ocular evidence of Ghulam Kadir, Muharam and Ali Hyder son of Muhammad to prove the charge of murder of Ali Nawaz deceased, and produced P.Ws. Muhammad Laiq, Ali Hyder son of Qaimuddin and Gul Hassan to support the murder charge of Mst. Razia against the accused. In addition, prosecution relied on the circumstantial evidence of recovery of blood‑stained clothes and hatchets from the petitioner and his brother. Whereas petitioner's brother and his father denied the prosecution allegations, petitioner's case in defence, in his own words, was as follows:- "On the day of murder I had gone to my lands, wherefrom, at about 'Bipahri/Tripahri' time, I returned home, and found Ali Nawaz and my wife Razia, in objectionable state of affairs. This gave me grave and sudden provocation and I lost control over myself. I had a hatchet in my hands. I challenged them. Ali Nawaz succeeded in running away from my house. I killed my wife Mst. Razia in the house and thereafter followed Ali Nawaz up to his home. I chased him and saw him in Naudero Town and killed him there. Though, I went to the police station voluntarily and wanted to lodge the report, yet the police did not record my report, and thereafter, on the influence of the complainant party, fabricated the present case against me, my brother and my father." Learned trial Judge as well as learned Judges in the High Court disbelieved the defence plea raised by the petitioner and held him guilty under section 302 of the Pakistan Penal Code and for which he was sentenced to life imprisonment and to pay fine of Rs. 1,000 or suffer two years' rigorous imprisonment in default. Mr. Muhammad Hayat Junejo, learned counsel appearing in support of this petition for leave to appeal from the judgment of the High Court submitted that since the prosecution witnesses were disbelieved so far as two co‑accused are concerned, the High Court should not have relied upon the same evidence to uphold the charge of murder against petitioner. In this behalf, learned counsel further submitted that P.Ws. Muhammad Laiq and Gul Hassan were both declared hostile and their evidence clearly shows that the defence version was more probable than the prosecution case. According to the learned counsel in any case, the defence version being reasonably possible in the circumstances of the case, petitioner is entitled to the benefit of doubt. After having gone through the record of the case we find that, the learned Judges in the High Court have rightly held that the murder of Ali Nawaz did not take place in the manner suggested by the petitioner. No doubt P.Ws. Muhammad Laiq and Gul Hassan did not support the prosecution case and changed their version stated in their 164, Cr.P.C. statements, but the learned Judges in the High Court have held that "this is understandable because of their close blood relationship", in that, all the three accused are closely related to the three prosecution witnesses, petitioner's father Abdul Majid being the cousin of Mst. Razia's father Ali Hyder. However, petitioner's case is quite different from that of his brother and father, in that, in view of his defence plea the only question for consideration is whether the version of the incident stated by him is reasonably possible. Learned Judges of the High Court on full consideration of the evidence Droved on record have rejected this defence plea for very cogent and proper reasons, and we find no justification for interference by this Court. The petition is, therefore, dismissed. M.I. Petition dismissed.