2007 PLP 1296 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This jail petition under Article 185(3) of the Constitution has been directed against the judgment, dated 13-1-2005 passed by a Division Bench of Lahore High Court, Rawalpindi Bench, whereby criminal appeal filed by the petitioner against his conviction and sentence of death awarded to him under section 302(b), P.P.C. by the learned Additional Sessions Judge, Gujrat, with direction to pay rupees one lac as compensation to the legal heirs of deceased and in default of payment of compensation to undergo R.I. for three years, was dismissed.

2. The short facts as narrated in the complaint lodged by Ashiq Hussain on the basis of which case was registered against the petitioner and his co-accused (since acquitted) at Police Station Kunjah, District Gujrat, are that on the fateful day, the complainant was sitting in the company of Muhammad Akbar, Muhammad Afzal, (deceased), Mst. Irshad Begum, wife and Mst. Mubeen Fakhria, daughter of deceased and one Ghulam Rasool, in the courtyard of house of deceased when petitioner armed with kalashnikov and his co-accused also carrying fire-arm weapon suddenly by scaling over the outer wall of the house, forcibly entered in the house and on the Lalkara raised by Bashir Ahmed, the petitioner opened firing with kalashnikov, as a result of which deceased sustained injuries on chest and abdomen, whereas as a result of firing of his co-accused, he sustained injuries on different parts of the body. The motive behind the occurrence was the dispute over the inherited property (land) owned by Mst. Irshad Begum. The prosecution mainly placed reliance on the testimony of eye-witness namely, Ashiq Hussain, complainant (P.W.1), Mst. Mubeen Fakhria, daughter of deceased (P.W.2) and Mst. Irshad Begum (P.W.3), wife of deceased duly corroborated by the medical evidence furnished by doctor Muhammad Ikram Naeem (P.W.9) who conducted post-mortem examination of the deceased. The petitioner in his statement under section 342, Cr.P.C. denied the charge and pleaded false implication on account of dispute of ancestral property and that it was. unseen occurrence in which deceased was murdered by his enemies.

3. Learned counsel pointing out minor contradictions in the statements of eye-witnesses contended that prosecution evidence was discrepant and not reliable and asserted that occurrence Was unseen which took place in the dead hours of night and witnesses being closely related to the deceased were interested and not independent, therefore, their sole testimony without any independent corroboration was not sufficient to sustain the conviction on the capital charge. Learned counsel for the State, on the other hand, has opposed this petition with the contention .that the occurrence took place in the courtyard of the house of deceased and eye-witnesses being inmates of the house, were quite natural witnesses and their testimony was consistent in each material which was found truthful and confidence-inspiring by the trial Court as well as by the High Court.

4. The careful examination of record would reveal that deceased sustained a number of fire-arm injuries on different parts of his body and doctor who performed post-mortem examination of the deceased, found almost equal number of entry and exit wounds on the dead body. The eye-witnesses account of natural witnesses, also sought corroboration to the extent of number of fire-arm injuries sustained by the deceased and the kind of weapon used in the occurrence. The presence of the witnesses with deceased in his house and particularly of the two ladies, could not be doubted to contend that it was an unseen occurrence and the deposition of eye-witnesses 'being quite consistent, was found truthful and confidence-inspiring which would alone be sufficient to sustain the conviction. The contention of the learned counsel that as per prosecution case deceased sustained injuries as a result of firing of all the accused, therefore, the possibility of his sustaining the fatal injury at the hand of acquitted accused being not ruled out, the petitioner would stand at par to that of the acquitted accused and would be entitled to the same benefit, has no substance. There are distinguishable features of the case against the petitioner to that of his co-accused who have been assigned the general role of causing injuries to the deceased whereas the petitioner was attributed to have caused fire-arm injuries to the deceased on the sensitive part of his body, which were proved fatal to life and prosecution has succeeded in proving the charge of murder against him by bringing direct evidence on the record. This may be seen that in a case of joint liability, the Court may in the light of the rule of sifting the grain from chaff, give benefit of doubt to an accused but his acquittal may not be relevant for determining the guilt of his co-accused and Court is not obliged to acquit all accused on the basis of rule of falsus in uno falsus in omnibus which is not followed by the Courts in Pakistan. Be that as it may, the case of acquitted accused is not before us as neither the complainant nor the State has filed any petition against their acquittal, therefore, we without commenting on the role assigned to them in the occurrence, must concentrate to the question of guilt or innocence of the petitioner in the light of prosecution evidence. In consequence to the above, we are of the considered view that prosecution has been successful in proving the charge against the petitioner on the basis of direct evidence of natural witnesses duly supported by the medical evidence, beyond any reasonable doubt and learned counsel, except the minor discrepancies and contradictions in the evidence, has not been able to point out any misreading or non-reading of evidence by the learned trial Judge or by the High Court in coming to the conclusion regarding the guilt of the petitioner or any legal or factual defect in the judgment of the High Court calling for interference of this Court.

5. In the light of foregoing reason, this petition being without any substance is dismissed. Leave is refused. S.M.B./U-4/SC Petition dismissed.