1981 PLP 1130 (SCMR)

MUSHTAQ HUSSAIN, J.--Sarwar and Munawar Ali (P. W. 5) are brothers and residents of Niaz Beg in the area of Police Station, Choong, Lahore. Munawar Ali had engaged his sister Sughran Bibi to Mian Khan accused. His brother Sarwar did not approve of it and five or six days before the incident he engaged this very sister to Farzand's son who resides in Mauza Nangal within the area of Police Station, Muridke in District Sheikhupura. Mian Khan felt offended and he held out a threat to anybody trying to marry this girl away.

2. On the day of occurrence Sarwar borrowed a tractor from Muhammad Munir and started tilling his land at a distance of about seven acres in village Hathar. Munawar Ali (P. W. 5) was watering his rice fields nearby.

3. At about 11 a.m. the aforesaid Mst. Sughran Bibi, sister of Munawar Ali and Sarwar, brought their meals from the village and called Munawar Ali to partake of her meals. Munawar Ali (P. W. 5) started towards her when suddenly Mian Khan, Ghulam Hussain and Liaquat accused came on two horses from the side of Akbar's orchard. When they reached near Sarwar deceased they dismounted from their horses. Mian Khan and Liaquat were armed with ' 12 bore guns. Ghularn Hussain caught hold of the horses and shouted a lalkara calling upon the other two to open fire. Mian Khan fired from the '12 bore gun at Sarwar hitting him at the back of his left shoulder. Liaquat also fired with his '12 bore gun hitting Sarwar on the left side of his chest. Mian Khan fired again hitting Sarwar deceased on his left palm. Munawar Ali (P. W. 5) and his sister Sughran Bibi (P. W. 6) shouted for help. Muhammad Ashraf (P. W. 7) who was coming from his dera with milk saw the incident and also shouted for help. The accused mounted their horses and made good their escape towards the village Gopa Rai. Sarwar breathed his last at the spot. Munawar Ali (P. W. 5) went to Police Station, Choong where he lodged the F.

1. R. Exh. P. E. at 4 p.m. The F.

1. R. was recorded by Syed Aftab Ijaz (P. W. 10).

4. The Sub-Inspector proceeded to the spot and went through formalities of investigation. He recovered blood-stained shirt P. 1, bunion P. 2, chaddar P. 3 and one Phial P. 4 containing a pellet, by Memo (Exh. P. A.). He arrested all the three accused on 19th October, 1972. On the 28th October, 1972 Mian Khan led to the recovery of a '12 bore single barrel gun P. 6 from the maize field which was taken into possession vide Memo (Exh. P. D).

5. On 3-11-1972 Liaquat accused led to the recovery of a '12 bore gun P. 5 from a room in his cattle shed which was taken into possession vide Memo P. C. Having completed the investigation he challaned the accused.

6. Mian Khan stated before the learned Additional Sessions Judge that because of the murders of Yaqub and Safdar brothers of the deceased the accused had long standing enmity with them. The accused in this case have been roped in because the accused in the other had been acquitted. He denied participation in the occurrence. Liaquat denied that Mian Khan, his co-accused, was ever engaged to Mst. Sughran Bibi P. W. He denied all the allegations and took up the same stand as his co-accused. Gbulam Hussain also took up the same position and all three claimed to be tried.

7. The prosecution examined 10 witnesses to prove its case while the defence examined none.

8. The learned Additional Sessions Judge convicted Mian Khan and Liaquat under section 302/34, P. P. C. and sentenced them to death. They were also sentenced to pay a fine of Rs. 1,000 each or in default in the payment of fine to undergo rigorous imprisonment of one year each. They were also sentenced to one year's rigorous imprisonment under section 13 of the Arms Ordinance, 1965 as they could not produce any licence. Th. fine, if realized, was to be paid to the heirs of the deceased as compensation.

9. Ghulam Hussain accused, to whom only a lalkara had been attributed, was.convicted under section 302,!34, P. P. C. and sentenced to imprisonment for life.

10. On appeal the High Court found the prosecution case fully established against Mian Khan and Liaquat appellants through the ocular evidence corroborated and supported by motive, medical evidence and recoveries. They found no mitigating circumstances to justify a lesser penalty. The conviction and sentence of death awarded to them by the trial Court was, therefore, confirmed.

11. The High Court found that Ghulam Hussain was unarmed and found it difficult to believe that an accomplice accompanying others to commit a murder would go unarmed. It was also found that no part was attributed to him in the assault on the deceased except the usual lalkara. The High Court also took note of applications made to the Investigating Officer both orally and in writing saying that Ghulam Hussain was innocent. The High Court, therefore, gave the benefit of doubt to Ghulam Hussain, set aside his conviction and sentence and acquitted him.

12. The convicts Liaquat Ali and Mian Khan have filed Cr. P. S. L. As. Nos. 98 of 1977 and 110 of 1977 respectively.

13. The conviction of the accused is based upon the evidence of motive stated by Munawar Ali (P. W. 5) and Sughran Bibi (P. W. 6) the medical evidence given by Dr. Sabir Ali (P. W. 1) the ocular testimony given by Munawar Ali (P. W. 5), Sughran Bibi (P. W. 6) and Muhammad Ashraf (P. W. 7) the evidence of the recoveries of a single barrel gun P. 6 from Mian Khan and a similar gun P. 5 at the pointing out of Liaquat. This witness is the brother-in-law of Sarwar deceased, the other witness being Syed Aftab Ejaz (P. W. 10) who investigated the case.

14. Learned counsel was at pains to submit that since Ghulam Hussain had been acquitted on the basis of the same evidence by giving him the benefit of doubt, it was imperative for the Court to have taken into account the effect of this acquittal on the case of Liaquat.

15. The main reason which impelled the Courts below to give the benefit of doubt to Ghulam Hussain was the fact that he was unarmed and that no active part except the so-called raising of a lalkara had been attributed to him. It is in such cases that a Court is saddled with the task of separating the grain from the chaff and finding out by sifting the evidence as to who can and who cannot be convicted on its basis and we have no doubt in our minds that this task was very well performed by the learned Courts below. The two accused who have been convicted, that is to say, Liaquat Ali and Mian Khan had led to the recovery of '12 bore single barrel guns for which they had no licence. The deceased had, according to Dr. Sabir Ali (P. W. 1), died of injuries caused by fire-arms. In the F. I. R. the use of fire-arm A was specifically mentioned and even the places where injuries were cause by each shot were specified. There was, therefore, corroborative eviden against these two accused and the case of Ghulam Hussain was distinguishable from theirs even on this point.

16. We were also told that the case of Liaquat Ali should have been considered independently and not tagged on to the case of Mian Khan. We have not been able to see eye to eye with the learned counsel on this question. The case of each accused has been considered independently on the basis of the evidence provided by the prosecution against him. Liaquat Ali and Mian Khan are both saddled with the responsibility of firing shots at the deceased and each one of them is, therefore, responsible for the death of Muhammad Sarwar. They have been convicted on the basis of the same evidence for the same incident and it is difficult to appreciate what, in fact, is meant by tagging on the case of one to the other. We find nothing wrong with the manner to which the case was dealt with by the two Courts below. 17 Great .stress was laid on the assertion that the Tractor was not owned by Sarwar and that the High Court allowed additional evidence to be produced for this purpose. We are very clear in our minds that the ownership of the tractor has not bearing whatsoever on the incident and the responsibility for it.

18. Criticising the testimony of Munawar Ali (P. W. 5) we were told that the First Information Report and the statement-of this witness contradict each other. The contradiction pointed out to us was that the closeness of the gun to the target was not mentioned in the F. I. R. This argument has only the merit of ingenuity. The First Information Report is supposed t contain a narrative of the way the incident took place and matters of sec B minute detail as the closeness of the gun to the target are not an essentia part of it nor is the absence of the mention of such points in any way derogatory to the weight to be attributed to the First Information Report.

19. Dealing with the recoveries we were also told that the guns were not sent to the Forensic Expert. The reason is clear because no crime empty was recovered and it was not necessary to send the fire-arms to the Forensic Expert. The fact, however, remains that these guns were recovered fro these two persons and that they had been seen in broad daylight firing with guns at the deceased.

20. It was also suggested that the recovery was made fifteen days after the occurrence and seven days after the arrest. These are unlicensed weapons and were recovered on the pointing out 'of the accused and there were reliable witnesses to the recovery. The mere fact, therefore, that the guns were recovered after eight days could not be of any effect whatsoever because if it was intended to plant those guns on the accused there could have been no difficulty in doing so even in one day and it was not necessary to wait for eight days to do so. Far from discrediting the recoveries, to our minds, this strengthens them. 21.We are consequently of the view that the conviction and sentence of Mian Khan and Liaquat Ali are fully justified by the weight of the evidence produced in the case. We, therefore, dismiss the petitions for special leaved to appeal and affirm the judgment of the High Court.

22. As for Cr. P. S. L. A. No. 116 of 1977 filed by Munawar Ali, we need only say that nothing has been pointed out to us from the evidence and judgments of the Courts below which could even remotely indicate that there had been any miscarriage of justice on account of Ghulam Hussain. As is clear from the discussion of the evidence and circumstances of the case carried out above, Ghulam Hussain could not have been convicted on the basis of the evidence on the re6did. This petition is, therefore, also dismissed. Petition dismissed.