1987 PLP 1921 (SCMR)

SHAFIUR RAHMAN, J.--By two separate petitions Liaqat Hayat son of the deceased Allah Yar Khan, seeks leave to appeal against the acquittal of Bashir Ahmad and Misri by the trial Court and of Abdul Haq and Naseer Ahmad by the High Court by its judgment dated 31-1-1981.

2. Allah Yar Khan deceased while in the company of Muhammad Nazir, PW.14, was allegedly shot at and killed by the these four respondents on the 12th of August, 1978. He was murdered to avenge the insult of Abdul Haq at whom abuses were hurled and stones thrown a few days before the occurrence. Apart from Muhammad Nazir, Lal Khan, PW.15 and Mehr Khan, PW.16 claimed to be the witnesses of the occurrence. The deceased had extensive fire-arm injuries, some of them having blackening. The guns were recovered from the respondents and pistol from Naseer Ahmad, respondent and two of the empties recovered from the spot matched with the gun of Abdul Haq and one empty Exh.P.8 matched with the pistol recovered from Naseer Ahmad.

3. The trial Court disbelieved the claim of Lal Khan, PW.15 and Mehr Khan, PW.16 to be the eye-witnesses of the occurrence but relying on the motive, the statement of Muhammad Nazir PW.14 and the recoveries, held Abdul Haq and Naseer Ahmad to be guilty of the offence under section 302/34 PPC and convicted and sentenced both of them to death and a fine of Rs.2,000 each. Bashir Ahmad and Misri Khan were given the benefit of doubt and acquitted of the charges.

4. While seized of the confirmation of the death sentence, the appeal of the convicts and the revision filed by the petitioner seeking enhancement of the sentence and the amount of fine imposed, the learned Judges of the High Court reappraised the evidence on record and came to the conclusion that the claim of Muhammad Nazir PW.14 to be an eye-witness of the occurrence was not free from reasonable doubt and the other evidence was not sufficient to implicate the respondents convicted of the offence. Hence the death sentence was not confirmed, the two convicts were acquitted and the acquittal of two others by the trial Court was maintained.

5. Ch. Rafique Ahmad Bajwa has contended that the claim of the eye-witnesses and the version given by them was fully established on record and further the recoveries of the gun and pistol and the matching of the empties provided the necessary corroboration, the motive having been believed by both the Courts.

6. The trial Court excluded the testimony of Lal Khan and Mehr Khan on the grounds contained in para. 8 of its judgment in the following words:- "The ocular evidence has been furnished by complainant Muhammad Nazir PW.14, Lal Khan PW.15 and Mehr Khan PW.16 but the last mentioned in cross-examination admitted that at the time of occurrence he was not present near about the spot and that at that time he was grazing his cattle in Birmal on his own land at a distance of 2 miles from the locale. So, his testimony is excluded from consideration. Lal Khan deposed that on the fateful day he went to the house of Mehr Khan PW in laws to purchase a cow but he was told that he had gone to graze cattle across Tarapi Nala; so he followed him and when he reached near the said Nala he found Nlehr Khan PW grazing cattle there, so they both sat under a 'Kikar' tree near Ghandi and started talk about the bargain of the cow and it was then that they heard alarm and saw the occurrence. The statement of this PW about the occurrence is unworthy of credence as he had no occasion to be present at the spot if Mehr Khan PW was not there at the relevant time. Since Mehr Khan admitted that he was not present near the locale, the question of Lal Khan's presence there does not arise. Hence I also discard the evidence of Lal Khan PW as an eye-witness."

7. Such an appraisal of evidence and its affirmance by the High Court does not suffer from any legal infirmity to require our attention and interference.

8. As regards the claim of Muhammad Nazir PW.14, the High Court has given the following reason for evidence:- "In the first instance, Muhammad Nazir PW.14 has not been able to satisfactorily explain his presence with the deceased at the time of occurrence, considering that he had no business with him on that day but happened to join the deceased for the sake of company in taking a round of his millet crop a little before noon time in the hot month of August during the period of Ramazan. His presence at the spot appears to be unnatural. Even otherwise, his testimony appears to be full of contradiction. In FIR Ex. PL, he gave a totally different story and at the trial he improved upon it resulting in innumerable contradictions of a grave character."

9. The recoveries were also found not to be beyond suspicion. In fact the learned Judges concluded that 'the crime empties P.5 to P.9 and the wads P.10 to P.17 appear to be planted!

10. We find that in appraising the evidence, drawing the conclusions which the High Court has drawn, no legal error has been committed, no principle of has been violated such as may require interference. Hence leave to appeal is refused in both these matters. S.Q./L-6/S Leave refused.