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Petition for Special Leave to Appeal No. 287 of 1969, decid ed on 29th January 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, dated the 10th October 1969, in Criminal Appeal No. 662 of 1965).

Art. 58 (3)‑Special leave to appeal from convictions sought on grounds substantially going to mere appreciation of evidence‑Courts below not shown to have, .in their appreciation, contravened any principle for ascertaining guilt of accused or disregarded any procedure applicable to criminal trials‑Petition for leave to appeal dismissed.

S. M. Masood, Advocate Supreme Court instructed by Inayat Hussain Shah, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 29th January 1970.

‑The petitioners along with two .others were charged under sections 148, 452/149 and 302/149, P. P. C. before the Additional Sessions Judge, Bahawalnagar. The trial Judge acquitted them of the principal charge in the view that the object of the unlawful assembly was to abduct Mst. Zaib Ilahi and not to kill any person and that there was no reliable evidence as to which particular person of the assembly had fired the fatal shot at Mst. Gamman, deceased. Bashir son of Baqar having died during the trial, the rest of the accused were convicted under sections 148 and 452/149, P. P. C. and sentenced to two years' rigorous imprisonment on the first count and five years' rigorous imprisonment on the second count.

On appeal by the accused the High Court maintained their convictions and in pursuance to the revision petition filed by Bahadur, P. W., enhanced their sentences to three years' rigorous imprisonment under section 148 and seven years' rigorous imprisonment under section 452/149, P. P. C. with a direction that the sentences shall run consecutively.

The identity of the culprits was in no doubt. They were seen at three different stags by a number of witnesses‑firstly by Amira (P. W. 14), uncle of Mst. Zaib Ilahi, who was belaboured by the culprits in his own house and his brother Pira (P. W. 15), brother of Amira, who lived in the adjoining house, and arrived on hearing the alarm. He told the accused that Mst. Zaib Ilahi had gone to the Basti for baking bread whereupon they went to the house of Bahadur, P. W., firing gun shots in the air to scare away the villagers. Bahadur (P. W. 16) a cousin of the father of Mst. Zaib Ilahi, his son Muhammad Yasin (P. W. 18) J and son‑in‑law Muhammad Azam (P. W. 17) saw the accused as they were going in the direction of the house. Out of fear they took shelter in the house of Ahmad Yar and through the chinks of its outer door saw the accused entering their house and forcibly breaking open the door of the room in which Mst. Gamman, deceased, and their other women‑folk had taken shelter. As one of the shutters of the door came off Basbir, accused, fired with a rifle fatally injuring Mst. Gamman. On their return to village Jodhike the accused had to cross river Sutlej. At the river bank they contacted Muhammad (P. W. 1) who brought from the village Hassan, a boatman (P. W. 10). The latter took them across the river. Both the witnesses, who are independent had thus ample opportunity to identify the accused.

There were also incriminating recoveries of empty cartridges and bullets from the scene of crime some of which matched with the rifle P. 20 recovered from Bashir, accused. All the accused absconded were arrested between 22‑5‑1963 and 4‑6‑1963. Pallu, accused, was at his own request subjected to identification parade at which he was correctly picked up, by Bahadur, Yasin and Azam, P. Ws. There was thus overwhelming evidence in support of the prosecution case which found support from the circumstances in which the offence was committed.

The petitioners seek leave to appeal from their convictions on grounds which substantially go to mere appreciation of evidence. It is not shown that the Courts below have in their appraisal contravened any new principle for ascertaining the A guilt of an accused person or disregarded any procedure applicable to criminal trials. No proper case, is therefore, made out to justify re‑examination of evidence by this Court. The petition is, accordingly, dismissed.

Before parting with this order it falls to be slid that the Courts below fell into an error in acquitting the petitioners and their co‑accused of the capital charge. Even if no reliable evidence was available as observed by the trial Judge as to which of the accused persons had fired the fatal shot at Mst. Gamman all of them were burdened with vicarious liability under section 149, P. P. C. notwithstanding that the original common object of the accused was to forcibly abduct Mst. Zaib Ilahi. They were armed with hatchets, shot guns and a rifle. The intention to use these arms in case of resistance was, therefore manifest. The intention to kill was also borne out by the knowledge that some persons had taken shelter in the room into which Bashir, deceased, fired with a rifle. The petitioners were, therefore, clearly guilty of the offence under section 302/149, P. P. C. and should consider themselves fortunate that the Courts below have on an incorrect view of the law acquitted them of this charge.

The petition is dismissed.

S. Q. Petition dismissed

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