1981 PLP 872 (SCMR)

ABDUL KADIR SHAIKH, J.-This is a petition for special leave to appeal from the judgment of Lahore High Court dated 24th September, 1980 whereby petitioner's appeal against the conviction recorded against him under section 302, P. P. C. for which he was sentenced to life imprisonment and fine of Rs. 3,000 was dismissed. The petitioner was tried along with his brother, Muhammad Asghar, under section 302/34, P. P. C. for the murder of Nazir Ahmad alias Ahmad which occurred on 31st October, 1973 at about Isha payer time, in front of the house of the co-accused Muhammad Asghar, situated in Chak Chatha in the area of Police Station, Hafizabad. The report of the crime was lodged by Nazir Ahmad, brother-in-law of Nazir Ahmad deceased, at 7-30 p.m, on the same day. According to the prosecution, Nazir Ahmad first informant, Nazir Ahmad alias Ahmad and four others, namely Muhammad Ashiq, Allah Ditta, Inayat and Sher Muhammad went to the house of Muhammad Asghar (accused) in order to, persuade him and his brother Sher Muhammad (accused) that Mst. Rasulan Bibi daughter of Nazir Ahmad first informant may return to her husband Sher Muhammad (accused) who had driven her out of the house because of giving birth to a female child, and not a male child. Both Muhammad Ashgar and Sher Muhammad refused to listen and instead replied that Mst. Rasulan Bibi would be divorced. Nazir Ahmad alias Ahmad thereupon said his party that they had come for reconciliation and their refusal would entail grave consequences. Upon this Muhammad Asghar lost his tempt and at his instance Sher Muhammad brought out a '12-bore gun from behind the door of the house and shot at Naeir Ahmad alias Ahmad who died on the spot. At the trial, the prosecution case rested on the ocular testimony of Nazir Ahmad, Muhammad Ashiq Inayat and Allah Ditta which was sought to be corroborated by the circumstantial evidence of the recovery of crime empty Exh. P-3 recovered from the scene of offence which matched the licensed gun of the petitioner recovered at his instance. The plea of the accused in defence was that they had been falsely implicated due to enmity. The Sessions Judge, Gujranwala who tried the case believed the ocular testimony and also the circumstantial evidence and he accordingly held the petitioner guilty under section 302, P. P. C. He however acquitted the co-accused Muhammad Asghar on the ground that no specific motive was assigned to him and the prosecution had also not explained the two simple injuries found on his person. On appeal, the High Court believed the ocular testimony, but placed no reliance on the circumstantial evidence of the incriminating recoveries for the reason that no explanation had been offered for the delay in the dispatch of the crime empty Exh. P-3 to the fire-arm export till 4th November, 1973 when the licence as Exh. P-4 was recovered and both the articles were then despatched together. Mr. D. M. Awan, learned counsel for the petitioner submits that since the learned Sessions Judge had felt the necessity of corroboratory evidence to support the ocular testimony of the eye-witnesses and it was for the reason of absence of such corroboratory evidence against the co-accused Sher Muhammad that he was acquitted, the petitioner is also entitled to the same treatment since the High Court has disbelieved the circumstantial evidence as to the recoveries of the incriminating articles. It is true that, the High Court has not placed reliance on the said. Circumstantial evidence but it has placed implicit reliance on the ocular evidence, of Nazir Ahmad, Muhammad Ashiq, and Inayat for several reasons recorded) in the judgment. According to the High Court there was no reason for P. W. Nazir Ahmad to falsely implicate to his brother-in-law Sher Muhammad and in any case he was fully supported by P. Ws. Muhammad Ashiq and Inayat. They are related to him, but the High Court has held that "they have no enmity and none has been shown to be entertained by the witnesses as against the accused-appellants:- The submissions advanced by the learned counsel in support of the petition relate to the appreciation of the prosecution evidence and since the two Courts below on detailed scrutiny of the evidence led by the prosecution's have believed the eye-witnesses for valid reasons there is no valid justification, for interference by this Court. Learned counsel lastly submitted that the petitioner may be granted the benefit of the provisions of section 382 of the Code of Criminal Procedure in respect of the period of Jail custody undergone by him as an under trial prisoner. In the circumstances of the case we direct that such benefit shall be granted to him. Subsequent this direction, the petition is otherwise, dismissed in limine. Petition dismissed.