1987 PLP 716 (SCMR)

Nemo for the State. Date of hearing: 2nd February, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 14‑5‑1983 of the Lahore High Court; whereby petitioner's appeal from conviction in a murder case with sentence of life imprisonment and fine, was dismissed. The petitioner and his younger brother were accused of having murdered Javaid Anjum outside his shop during day time. The petitioner caused injuries with Chhuri which was recovered from him and was found to have been stained with human blood. The motive was that the petitioner wanted the deceased to vacate the shop. A demand, in this behalf, was made a day before the occurrence with a threat that if he failed to meet the demand he would be dealt with. Three eye‑witnesses supported the prosecution case at the trial. They are Haji Bashir Ahmad father of the deceased, Pervaiz Aslam his brother and Muhammad Arif who is not connected with the complainant side. Fayyaz Shah another eye‑witness, though independent, was given up by the prosecution as won over. Recovery evidence was also led from the prosecution side. Three witnesses were examined in defence to show that the deceased was a vagabond and had a bad reputation in the locality. The learned trial Court relying on the prosecution evidence found the petitioner guilty of murder. His younger brother who had not caused any injury to the deceased was extended benefit of doubt and was acquitted. The High Court having affirmed the conviction, the petitioner has now sought leave to appeal. Learned counsel has contended that the eye‑witness account should not have been accepted because Fayyaz Shah an independent eye‑witness was not examined at the trial. And further that he had sworn an affidavit contradicting the version given by the other eye‑witnesses. The fact that Fayyaz Shah had given an affidavit to be used by the accused supports the statement made by the prosecutor that he, at the relevant time, had aligned with the accused party. Despite that he was not examined in defence. On the contrary Muhammad Arif P. W. who gave the ocular account is totally independent witness and has been relied upon by both the Courts below. There is also no reason to disbelieve Pervaiz Aslam and Bashir Ahmad the brother and father of the deceased respectively who had no motive to falsely implicate the petitioner. Moreover, weapon of offence has been recovered from the petitioner which also supported the prosecution case against him. A further argument by the learned counsel that is the Chhuri was recovered from the petitioner after about 4 days of the occurrence, and during this period he had opportunity to wash the bloodstains. It was, therefore, unlikely that in these circumstances blood would have been found on the Chhuri. The argument advanced by the learned counsel does not at all exclude the possibility that the blood might still have been found on the Chhuri either for the reason that it might not have been washed off by the accused and he might have thrown /concealed it without washing it. And secondly, even if washed it is not certain that the blood was completely washed. No attempt was made at the trial to show that the Chhuri would not have been blood stained when sent to the Chemical Examiner. After hearing the learned counsel, we are satisfied that the eye‑witnesses and the recovery evidence have rightly been relied upon by the learned Courts below. There is no justification for interference. This petition accordingly, is dismissed. S. Q. / M‑34/S Petition dismissed.