1968 (PLP)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 2nd November 1967, in Criminal Revision No. 1200 of 1967). Penal Code (XLV of 1860), Ss. 452/34, 326/34 & 323/34

Special Leave to Appeal prayed for against conviction‑Ground merely relating to appreciation of evidence‑Leave refused by Supreme Court. Muhammad Anwar Buttar, Advocate Supreme Court instructed by Abid Ali Butter, Attorney for Petitioner: Nemo for the State. Date of hearing: 20th February 1968. S. A. RAHMAN, J.‑This order will deal with two petitions for special leave to appeal, one preferred on behalf of Boota (Petition No. 338 of 1967) and the other on behalf of Ashiq (Petition No. 339 of 1967) which arise out of the same case. These two petitioners are said to have attacked Sardar Muhammad (P. W.), in his own house, on the night of the 14th February 1967. The petitioners, it was alleged, had three other collaborators, namely, Gaman, Attao and Bashir. Ashiq and Boota were armed with Chhuris while Gaman and Bashir were armed with rifles and Attao with a Toka. It was the prosecution case that Ashiq had cut off the ears of Sardar Muhammad while Boota had cut off his nose. The fingers of the hands of Sardar Muhammad were also cut and this injury was assigned, by the P. Ws., to Attao. Mst. Nawab Bibi, wife of Sardar Muhammad who was present, tried to rescue him and she too received injuries at the hands of Boota and Ashiq, accused. Gaman and Bashir had fired shots with their rifles, into the air, to scare away possible intermeddlers. The police investigation revealed that Attao, on the day of incident, was in jail and therefore, could not have participated in the occurrence. He was, therefore, acquitted. The rest of the accused persons were convicted and sentenced to three years' rigorous imprisonment each, under section 452/34, P. P. C., four years' rigorous imprisonment each, under section 326/34, P. P. C. and one year's rigorous imprisonment each under section 323/34, P. P. C. The sentences were ordered to run concurrently. The appeals of the petitioners and the convicts were dismissed by the learned Additional Sessions Lahore and Pakistan on their behalf. The revision petition of the petitioners was dismissed, while that of Gaman and Bashir was admitted, by the High Court. Boota and Ashiq therefore, seek special leave to appeal. The main argument, addressed by Mr. Muhammad Anwar Buttar, on behalf of the petitioners, is that as it was proved that Attao had been falsely implicated in the case, there was no guarantee that the petitioners had also participated in the occurrence. Credibility of the witnesses, the learned counsel suggested, was not divisible and therefore' the case should have been thrown out as a whole, in view of the fact that the P. Ws. Wpm all inmates of the house of the victim and related to bite and there was previous enmity between the parties. In the Courts below, however, specific parts were assigned to Boota and Ashiq, inasmuch as it was they who were alleged to have cut off the ears and nose of the victim. It is, therefore, clear that the victim must have seen who these persons were. He then became unconscious and apparently, the fingers of his hands were cut off, after he lost his senses. In these circumstances even if he named Attao wrongly, as the person who had cut off his fingers, that was not enough to discredit his testimony against the petitioners. There was no reason why these two petitioners were picked on by the victim for assignment of the major part of the crime, namely, the cutting off of the ears and the rose. It is not to be believed that the real culprits, if any, were allowed to go scot free and the petitioners substituted instead, without any ground The points raised merely go to the appreciation of the evidence, on which the convictions of the petitioners rest and do not justify grant of special leave to appeal. Both the petitions are dismissed. Leave refused.