1987 PLP 435 (SCMR)

Nemat Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioners. Nemo for Respondent. Date of hearing: 12th January, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought in these two petitions from judgment, dated 16‑11‑1985 of the Lahore High Court; whereby a Criminal Appeal arising out of a murder case was partly allowed. Criminal Petition No. 475 of 1985 has been filed by the two convicts, Dilbaz Khan and Pervaiz Khan, who have challenged their conviction, while Criminal Petition No.13 of 1986 has been filed by Muhammad Sher complainant, seeking the reversal of the acquittal of two accused, namely, Muhammad Bashir and Muhammad Matah Khan. Criminal Petition No.13 of 1986 against acquittal is barred by time. No justification has been made out for condo nation of delay. We accordingly dismiss the same. The case against the two petitioners in the other petition is that they while armed with Khanjars accompanied by their co‑accused Muhammad Bashir and Matah Khan who were armed with .12 bore Carbines attacked Khizar Hayat deceased and caused him numerous injuries with their respective weapons as a result of which he died. The motive alleged was that one Rustam Khan son of Muhammad Hussain acquitted accused was murdered by Niamat Khan a nephew of Khizar Hayat deceased and the latter used to "do the Pervi of that case on behalf of his nephew". The occurrence took place in the month of October at about 8 a.m. These four accused were mentioned in the F.I.R. lodged by Muhammad Sher P.W. who is a cousin of the deceased. He named all the aforementioned accused as the culprits. Muhammad Ali who appeared as P.W.11 was also mentioned as an eye‑witness. Subsequently, however, the police challaned four other persons also who were not mentioned in the F.I.R. as conspirators/ abetters. They were Dost Muhammad, Muhammad Riaz, Muhammad Hussain and Sher Muhammad. During the investigation recoveries of weapons of offence were also made. The learned trial Court acquitted Dost Muhammad, Muhammad Riaz, Muhammad Hussain and Sher Muhammad as neither the charge of conspiracy nor the abetment was proved against them beyond reasonable doubt. The remaining accused were convicted for murder. Dilbaz and Pervaiz petitioners were sentenced to death while Muhammad Bashir and Matah Khan were awarded sentences of life imprisonment. The High Court, on appeal, took note of the argument advanced on behalf of Muhammad Bashir and Matah Khan that according to the doctor who performed the post‑mortem examination none of the injuries found on the person of the deceased could have been caused by a fire‑arm therefore, the eye‑witnesses purgered themselves when they alleged that these two accused had fired at and injured the deceased. And while further taking note of the opinion expressed by the doctor who had earlier examined the injured and had stated that it was possible that some of the injuries might have been caused by a fire‑arm, (on account of this conflict the learned Judges in the High Court thought it safe to extend benefit of doubt to Muhammad Bashir and Matah Khan and acquitted them accordingly‑‑It appears, by way of abundant caution. The recoveries of the weapons of offence were not rejected as non‑genuine but on analysis were held to be of no consequence in so far as the culpability of the accused was concerned. In this context they were rejected. The testimony of Muhammad Sher complainant and Muhammad Ali the other eye‑witness after proper examination was found to be unimpeachable and accordingly the conviction and sentences of death and fine awarded to Dilbaz and Pervaiz Khan petitioners, were confirmed and upheld. These convicts have now sought leave to appeal. Learned counsel for the petitioners has contended that several accused having been acquitted on the basis of the infirmities found in the testimony of the witnesses, the petitioners could not have been convicted without strong and independent corroboration; that the medical evidence, in any case, contradicts the ocular account; that Muhammad Ali P.W. who has otherwise been held to be an independent witness could not be relied upon because he is a man of shabby character and in fact he is not disinterested because he claimed to have taken the injured to the hospital and further that he was disbelieved in so far as the recoveries of crime weapons are concerned; that Muhammad Sher complainant had been disbelieved in so far as the charge of conspiracy against four accused is concerned, therefore, his ocular account should have been rejected as unreliable; and lastly, that Pervaiz accused being 17/18 years of age at the time of occurrence was under the influence of his elders who were his co‑accused, namely, Sher Muhammad, his father and Muhammad Hussain his maternal‑uncle and Dilbaz convict another close relation. Relying on Sher Hassan v. The State P L D 1959 SC (Pak.) 480; Mushtaq Ahmad and others v. The State 1985 SCMR 423; Mukhtar Hussain and another v. The State 1985 S C M R 479 and Muhammad Din v. The State 1985 S C M R 625 it has been further contended that in the circumstances like those in the present case, Pervaiz petitioner should have been awarded the lesser penalty. The acquittal of four accused, namely, Dost Muhammad, Muhammad Riaz, Muhammad Hussain and Sher Muhammad on extension of benefit of doubt would not discredit the witnesses because they were not the direct witnesses of conspiracy. Moreover, the acquittal on benefit of doubt does not necessarily mean that the witnesses in that behalf had purgered themselves. Indeed there is no such finding by any of the learned Courts below. Same would apply to the acquittal of Muhammad Bashir and Matah Khan by the High Court. The learned Judges, it appears, acted by way of abundant caution by accepting the opinion of one doctor and rejecting the other, without themselves examining the nature and location of the injuries which according to the findings of the trial Court had been caused by the fire‑arms. We have ourselves examined the particulars of those injuries and are not satisfied with the assessment of the High Court in that behalf. Some of them are such that they could definitely have been caused by fire‑arms. However, the petition for leave to appeal against the acquittal of Muhammad Bashir and Matah Khan having been dismissed as time‑barred, we would not make any further comment on this question except that in these circumstances no benefit can be given to Dilbaz and Pervaiz petitioners on account of the acquittal of Muhammad Bashir and Matah Khan on extension of benefit of doubt. The first argument of the learned counsel has no force. The learned Judges of the High Court have not disbelieved the recovery witnesses. They have only held the recoveries to be of no consequence in so far as the culpability of the accused is concerned. This assessment, right or wrong, does not mean that the recoveries have been disbelieved. On the other hand, they were first assumed to be genuine and then were held to be otherwise inconsequential. The testimony of Muhammad Ali eye‑witness, therefore, could not have been brought under doubt on the ground that he had purgered himself on the point of recoveries. He also cannot be treated as interested witness merely because he had helped the injured after the occurrence. It is the normal conduct of a person who witnesses such a crime. Learned counsel conceded that although the defence had suggested that Muhammad Ali had other connections with the complainant party but it had not been established. In so far as the other arguments regarding his credibility are concerned, no question of law or principle is involved. The two Courts having held him as an independent and reliable witness no justification has been made out for this Court to set aside this finding, After hearing the learned counsel we are satisfied that the appraisal of evidence against Dilbaz and Pervaiz Khan and reliance on the ocular testimony by the learned Courts below in unexceptionable. They have rightly been convicted under section 302, P.P.C. There is no extenuating circumstance in so far as Dilbaz petitioner is concerned. Leave to appeal is refused to him. In the case of Pervaiz however in so far as the question of sentence (only) is concerned it requires examination. Leave to appeal accordingly is granted to him on the point of sentence. M.B.A./4425/S. Order accordingly.