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Petition for Special Leave to Appeal No. 142 of 1973, decided on 4th October 1973.

(On appeal from the judgment and order of the Lahore; High Court, dated the nil, in Criminal Appeal No. 147 of 1971).

----S. 302/323/34‑Eye‑witnesses though related to each other yet not on inimical, terms with accused‑One of witnesses an injured person, his statement carries great weight‑Ballistic expert stating empty as matching with crime gun, allegedly used by accused Statements of eye‑witnesses, held, sufficiently corroborated‑Petition for leave to appeal dismissed.

Maqbool Ilahi Malik, Advocate Supreme Court instructed by Kh. Wali Muhammad,

Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 4th October 1973.

‑The petitioner, along with three others, namely, Gamun, Ali Mohammad and Allah Ditta, were tried by the learned Sessions Judge, Dera Ghazi Khan, for offences under sections 302/34 and 323/34, P. P. C. for committing the murder of Miran, in furtherance of their common intention and for causing hurt to P. W. Allah Ditta with a gun and stick respectively in the last pehr of the night between Ist and 2nd August, 1969, in the area of Chah Qadu Wala in Mauza Darkhast Darmiani, Dera Ghazi Khan. The learned Sessions Judge, D. G. Khan, by judgment dated the 13th February, 1971, convicted the petitioner and the co‑accused under sections 302/34 and 323/34, P. P. C. The petitioner was sentenced to death under section 302/34, P. P. C. He was also sentenced to one year's R. I. under section 323/34, P. P. C. The other co‑accused were sentenced to transportation for life. They were also sentenced to one year's R. I. under section 323/34, P. P. C. The petitioner and the co‑accused challenged the judgment of the learned Sessions Judge in Criminal Appeal No. 147 of 1971 before the Lahore High Court. A Division Bench of the High Court, set aside the conviction of Gamun, Ali Mohammad and Allah Ditta under section 3112/34, P. P. C. Their sentence under section 323/34, P. P. C. was maintained. They further set aside the conviction of the petitioner under section 23/34, P. P. C. The conviction of the petitioner under section 302/34, P. P. C. was maintained but his sentence of death was reduced to transporta tion for life. The petitioner seeks permission to file an appeal against the said judgment of the Lahore High Court.

The prosecution case is that on the night between the Ist and 2nd August 1969, Miran deceased, his brother Allah Ditta P. W. (now dead) and Mst. Zainab Bibi P. W. 15, wife of Allah Ditta P. W. were sleeping in front of their residential kotha and Wahid Bukhsh P. W. 13, along with his wife Mst. Hayatan was sleeping at a distance of 15/20 karams from them on the northern side. They were awakened by the alarm of Mst. Zainab wife of Allah Ditta P. W. in the last pehr of the night, who was shouting, "thief, thief". On hearing alarm, they saw that the petitioner along with three co‑accused were around their cots who began to retreat when they got up. Miran deceased, Allah Ditta and Wahid Bakhsh P. Ws. ran after them. When they had reached about 15/ 16 karams towards the southern side of the compound, the petitioner who was allegedly armed with a gun and the co‑accused who were armed with sticks, raised lalkara and warned them not to come near them. Miran deceased shouted that they would not be allowed to escape. On hearing these lalkaras, Allah Wasaya P. W. 14 and Khuda Bux (not produced) who were near the scene of occurrence also rushed to their assistance. At this time, the petitioner fired a shot at them which struck deceased Miran on the head who fell down. Allah Ditta P. W. ran forward and grasped Ali Mohammad accused. Ali Mohammad called for help. Allah Ditta and Gamun rushed towards him and gave some blows on the back and arms of Allah Ditta P. W. with their sticks, where upon, he fell down and the petitioner and his co‑accused made good their escape, taking their weapons along with them.

The motive for the occurrence is alleged to be that the petitioner wanted to marry his widowed step‑sister Mst. Hayatan to one of his co‑accused, namely, Allah Ditta. It is alleged that prior to the occurrence, Wahid Bakhsh P. W. brother of Miran deceased, married Mst. Hayatan and this allegedly infuriated the petitioner and was the cause of occurrence.

The prosecution case is supported by the ocular testimony of Wahid 'Bakhsh P. W. 13, Allah Wasaya P. W. 14 and Mst. Zainab P. W. 15. The statement of Allah Ditta P. W. 8 also supports the prosecution case which was transferred to the Sessions file under section 33 of the Evidence Act. The corroboration of these witnesses is furnished by the recovery of the crime empty, Exh. P. 3, from the spot which was found to have matched with the gun, Exh. P. 4, belonging to the petitioner.

Mr. Maqbool Elahi, learned counsel for the petitioner, has contended that the prosecution witnesses are inter se related to each other and, therefore, their statements should not have been accepted without corroboration. According to the learned counsel, the recovery of the empty was not mentioned in the F. I. R. and it has been planted on the petitioner. He further contended that P. W. 9 Mehr Bakhsh and P. W. 10 Karim Bakhsh have contradicted themselves in so far as the recovery of empty is concerned. P. W. 9 stated that the empty was found by the Sub‑Inspector whereas Karim Bakhsh P. W. 10 stated that the empty was seen by Mehr Baksh also. According to the learned counsel the corroborative evidence is doubtful and the conviction of the petitioner is not justified. The conten tion of the learned counsel has not impressed us. It is true that the eye witnesses are related to each other but they are not on inimical terms with the petitioner. Allah Ditta was an injured person and his statement carries great weight so far as the case against the petitioner is concerned. In any case, there is a recovery of empty against the petitioner which matched with the gun according to the Ballistic Expert. There is no contradiction in the statements of P. W. 9 and P. W. 10. Both the witnesses have stated that the empty was recovered from the spot. In these circums tances, there is sufficient corroboration of the evidence of the eye‑witnesses. There is no merit in the petition. The petition is dismissed.

Petition dismissed.

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