1987 PLP 912 (SCMR)

‑‑‑S. 302/34‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Petition against acquittal‑‑Ocular version furnished by witnesses found replete with doubts‑‑Presence of eye‑witnesses at spot not established‑‑Recovery of crime weapons and evidence of motive disbelieved by two Courts below‑‑Supreme Court declined to come to a finding other than one arrived at by High Court and refused leave to appeal. Malik Rab Nawaz Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑ on‑Record for Petitioner. M. Hayat Junejo, Senior Advocate Supreme Court with Manzoor Ilahi, Advocate‑ on‑Record for Respondents Nos. l to

3. Date of hearing: 10th February, 1987. ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal from the judgment of the Sind High Court, dated 17‑12‑1985, whereby the appeal of respondents 1 to 3 was accepted and they were acquitted of the charge of murder.

2. According to the F.I.R. Exh.P.11, lodged by Sher Khan, it was alleged initially that on 3‑7‑1982 at 12‑10 hours, Janib, Hussain Bakhsh, Muhammad Khan and Madoo alias Madad Ali, who were armed with hatchets, killed Rahim Bakhsh in a garden and after injuring the deceased fatally they decamped from the spot in a Suzuki driven by Niaz Ali. It was alleged that the above four accused with their common intention on the conspiracy of Ali Gul and Murid had committed the murder of Rahim Bakhsh deceased. The occurrence, besides the complainant, was alleged to have been witnessed by Badar‑ud‑Din and Shahan. The motive given in the F.I.R. was that of the accused persons, Janib was suspecting Rahim Bakhsh to have illicit relations with Mst. Anwar, the wife of Ali Hasan nephew of Janib, and on this suspicion his nephew had divorced his wife. Of the persons mentioned in the F.I.R., only Najib, Muhammad Khan, Madoo alias Madad Ali and Niaz Ali were charged under section 302/34, P.P. C. The record shows that the alleged conspirators, namely, Ali Gul and Murid, were not proceeded against. The four accused named above were tried by the Additional Sessions Judge IV, Sukkur, and after recording the evidence of the prosecution and the statements of the accused, who, vide his order, dated 27‑4‑1985, while acquitting Niaz Ali of the delict convicted Janib, Muhammad Khan and Madoo alias Madad Ali under section 302/34, P.P.C. and sentenced them to death. The three convicts filed appeal against their conviction and sentence which came up for hearing before a learned Division Bench of the Sind High Court alongwith the reference for the confirmation of the death sentence imposed upon the convicts. The learned appellate Court after considering the case of the prosecution vide its judgment, dated 17‑12‑1985 set aside the conviction of the respondents and acquitted them of the charge of murder.

3. We have heard the learned counsel for the petitioner and the caveator and have gone through the judgments of the Courts below and we are of the view that the finding of the learned Judges of the High Court needs no interference in that the learned Judges did not rely on the ocular version of the occurrence given in this case by the three eye‑witnesses, the motive was also disbelieved and so was the recoveries of the weapons of offence. As stated earlier, in the F.I.R. Sher Khan complainant had, besides the three respondents also charged one Hussain Bakhsh for inflicting hatchet below at the deceased but at the trial he took a somersault and deposed that the fourth assailant had muffled his face. The two eye‑witnesses, namely, Badar‑ud‑Din and Shahan, also did not accuse Hussain Bakhsh for the commission of the crime. They also deposed that the fourth accused had muffled his face. It is in the prosecution evidence that the two eye‑witnesses, namely, Badar‑ud‑Din and Shahan, are residents of another village situate at a distance of about six miles, but it is alleged by Sher Khan complainant that at the relevant time they were present at the Ara machine of Rafaqat Ali Shah and on his (complainant's) raising cries both of them came raising Hakals not to kill. But this version, however, has been completely belied by Syed Rafaqat Ali Shah who appeared as D.W. 1 and deposed that on the day and time of occurrence only one customer, namely, Wazir, had come to his Ara machine; that he knew Badar‑ud‑Din and Shahan who used to come to his Ara machine to have their grains grinded because there is an Atta Chakki of his Ara machine; but that Badar‑ud‑Din and Shahan did not come to his Ara machine on 3‑7‑1982 the whole day and that on the day of incident he was present all the time at his Ara machine. Thus the presence of the witnesses has become doubtful at the spot. Even otherwise the ocular version furnished by the witnesses is replete with doubts, the recovery the weapons of offence having been disbelieved by both the Courts and so was the motive, we are, therefore, not inclined to come to a finding other than the one arrived at by the High Court. This petition) is thus dismissed. M.I/S‑22/5 Petition dismissed.