1984 PLP 1086 (SCMR)

Date of hearing : 27th June, 1984. ASLAM RIAZ HUSSAIN, J.‑This order will dispose of Jail Petition No. 33‑R‑83 filed by Miran Bakhsh against his conviction and Criminal P. S. L. A. No. 39‑R‑83, filed by Muhammad Hussain complainant against the acquittal of Muhammad Iqbal co‑accused, because both the petitions arise out of the same case.

2. Miran Bakhsh (petitioner in J. P. 33‑R‑83) was tried alongwith Muhammad Iqbal for the double murder of (1) Ghazan Khan and (2) Noor Hussain.

3. The occurrence took place at about 12‑30 p. m. on 26‑5‑1979 in Village Jhatla, Police Station Talagant, District Attock. The F. I. R. was lodged promptly by Muhammad Hussain P. W. (brother‑in‑law of Ghazan Khan deceased) which was recorded by Amir Khan S. I. (P. W. 16).

4. The motive for the occurrence is stated to be that Miran Bakhsh accused petitioner was cultivating 50 kanals of evacuee land as tenant. The said land was purchased by Shah Nawaz about 4/5 years prior to the occurrence. Later on Shah Nawaz took possession of the said land and gave it for cultivation to Ghazan Khan and Noor Hussain deceased. This was deeply resented by the two accused.

5. The prosecution version briefly stated is that on the day of occur rence Muhammad Hussain complainant alongwith the deceased Ghazan Khan and Noor Hussain were preparing the Banna in the fields in the area of village Jhatla. At about 2‑30 p. m. Miran Baksh petitioner armed with a rifle, Muhammad Iqbal (acquitted accused) armed with a Kulhari came from the side of village‑abadi. Both of them raised lalkara that they will take the possession of the land today. Miran Bakhsh fired two shots from his rifle on Ghazan Khan and one bullet hit Ghazan Khan on his head and he fell down. Noor Hussain tried to run away towards west. Miran Bakhsh fired two rifle shots one of which hit him on his head and he too fell down at a distance of a few paces. Muhammad Iqbal (acquitted accused) gave a Kulhari blow on his right upper‑arm, whereafter the petitioner and the acquitted accused both gave injuries to Noor Hussain with Kulhari and rifle. Ghazan Khan died on the spot while Noor Hussain was brought in an unconscious condition to the hospital at Talagant. According to the complainant the occurrence was seen by him Ghulam Muhammad and Muhammad Bakhsh, P. Ws.

6. After recording the F. I. R. the Investigating Officer visited the spot and recovered, inter alia, 2 empty shells of 7 m. m. rifle bullets. The accused were arrested and rifle (P. 2) was recovered from Miran Bakhsh while the blood‑stained hatchet was recovered at the instance of Muhammad Iqbal (acquitted accused). The empty rifle shells recovered from the spot were found by the Forensic Expert to match with the rifle recovered from Miran Bakhsh. Medical evidence revealed 2 firearm injuries (one inlet and the other exit) on the head of Ghazan Khan deceased and 9 injuries on the person of Noor Hussain deceased. According to the doctor out of these injuries on Noor Hussain 4 injuries were caused by firearm as a result of the shots and the remaining by a blunt weapon. There is no indication of any. incised injury which might have been caused with the hatchet.

7. At the trial the prosecution case was supported by 3 eye‑witnesses, namely Muhammad Hussain P. W. 13 (complainant and brother‑in‑law of Ghazan Khan deceased and cousin of Noor Hussain deceased) ; Ghulam Muhammad P. W. 14 (not related) and Muhammad Bakhsh P. W. 15 (not related to any of the deceased). It also relied on the evidence of recoveries, motive and the medical evidence. The trial Court believed the prosecution evidence with regard to Miran Bakhsh, convicted him under section 302, P. P. C. and sentenced him to death and a fine of Rs. 5,000 (in default to suffer further 3 years' R. I.). But it acquitted Muhammad Iqbal as there was no corroboratory evidence against him.

8. Miran Bakhsh filed an appeal before the High Court while ‑Muhammad Hussain complainant filed a revision petition against the acquittal of Muhammad Iqbal. The High Court dismissed these two matters by its judgment, dated 26‑3‑1983. Hence the present two petitions for leave to appeal.

9. We have heard the petitioners' counsel at some length and gone through the relevant portions of the evidence. All that the learned) counsel for Miran Bakhsh petitioner submitted was that the medical evidence contradicted the ocular version inasmuch as the direction of the firearm injuries on Ghazan Khan deceased found during the medical examination did not correspond to the version given by the eye‑witnesses. In the first place this contention relates to merely reappraisal of evidence which we are not inclined to enter into. Moreover we find that even otherwise the contention is not correct. The counsel submitted next that according to the doctor the incident had taken place at 7 a. m. in the morning and, therefore, it might as well have taken place at 5 a. m., when no one was present to witness it. This contention is based merely on conjecture and is not worth taking notice of.

10. We notice that two of the eye‑witnesses are absolutely indepen dent and there is strong corroboration of their testimony regarding Miran Bakhsh in the shape of recovery of the rifle from his possession which matched with the two empty shells found from the spot and the medical evidence which revealed rifle shot injuries on the two dead bodies. The petition filed by Miran Bakhsh has, therefore, no force and is consequently dismissed.

11. As for Criminal Petition No. 39‑R‑1983, filed by Muhammad Hussain, we notice that Muhammad Iqbal (acquitted) accused was alleged to have caused hatchet injuries to Noor Hussain deceased but no incised injury was found by the doctor on the body of Noor Hussain deceased. He was, therefore, rightly given the benefit of doubt by the learned trial Court. This petition is, therefore, also dismissed. S. Q Petition dismissed.