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Criminal Petition No. K‑52 of 1979, decided on 27th October, 1979.

(On appeal from the judgment and order of the High Court of Sind, dated 29‑9‑1979 in Cr. Appeal No. 60 of 1974).

Penal Code (XLV of 1860)‑

‑‑ Ss. 307, 323 & 326‑Evidence‑Ocular evidence‑Contention that once High Court came to conclusion of alibi of acquitted accused being likely true, such finding reacted on entire prosecution case and ocular evidence could not be accepted against other accused: unless properly corroborated in material particulars Acquitted accused, however, given benefit of doubt only as a matter of abundant caution on premise that his alibi might possibly be true and finding of High Court not in any manner weakening probity of evidence against rest of accused‑High Court, held, competent to sift evidence and acquit an accused as a matter of abundant caution.‑[Evidence‑Criminal trial].

Azizullah K. Shaikh, Advocate for Petitioners.

Nemo for the State.

Date of hearing : 27th October, 1979.

C. J.‑The three petitioners, Shahzado, Jawan and Piyaro, were tried along with one Razul, on charges falling under sec tions 307. 323 and 326 of the P. P. C. read with section 34 thereof. They were convicted on all the three counts and awarded various terms of rigorous imprisonment. In appeal, a learned Judge of the High Court of Sind has acquitted Razul, giving him the benefit of doubt on account of the alibi pleaded by him, but has maintained the convictions and sentences of the three petitioners. They seek leave to appeal.

The incident took place at 11‑00 a.m. on the 19th of April, 1972, near the school building in village Halepoto, six miles away from the Police 'Station of Lakhi in the District of Sukkur.

It was reported at 3‑45 p.m. by the complainant Hamzo (P. W. 1). He stated that the accused persons were suspecting him of illicit liaison with the mother of Razul and Shahzado and for that reason they waylaid him, when he had left his home with his buffaloes. Razul and Jawan were armed with hatchets, and the other two were carrying lathis. On hearing the challenge from them the complainant tried to run, but he was given a hatchet blow on his head by Razul, and then the other three accused belaboured him with their respective weapons. His father Mula Bahar (P. W. 2) as well as his brother Abdul Ghani (P. W. 3) were also injured during the course of the incident, which was witnessed by several people including Abdul Malik (P. W. 4) and Abdul Haq (P. W. 5).

The weapons of offence were recovered by the Investigating Officer from the houses of the accused persons, but the recoveries were effected in their absence, and have not been taken into account against the petitioners by the Courts below. The finding of guilt was recorded by the trial Court on the basis of the evidence of the three injured witnesses as supported by Abdul Malik and Abdul Haq. The learned trial Judge observed that in spite of the alibis pleaded by Jawan, Piyaro and Razul, it was possible that they could be present at the place of incident at the time mentioned by the prosecution. However, the learned Judge in the High Court has taken the view that in the case of Razul there was an element of doubt as to whether he could have reached the place of the incident by 11‑00 a.m. after being present at the place of his duty at 8‑00 a.m. as his place of duty was quite distant from the place .of the incident. While giving the benefit of doubt to Razul, he has nevertheless remarked that although it could be possible for him to reach the place of offence, but as there is some doubt on this point; he would give him the benefit of this doubt, but this would not affect the liability of the other three petitioners, as the case against them was fully proved by the evidence of the eye‑witnesses, particularly those three who were injured during the course of the incident. .

Leave to appeal is sought on the ground that once the High Court came to the conclusion that the alibi of Razul might be true, then this finding reacted on the entire prosecution case, and the learned Judge should have held that the ocular evidence could not be accepted against the other accused unless it was properly corroborated in material particulars; 'Out unfortunately the learned Judge has overlooked this requirement of law. The learned counsel further contends that, in any case, the circumstance which has appealed to the learned Judge .in the case of Razul was also present in the case of Jawan, who was present on his duty at 8‑00 a.m. at Rohri which was 50 miles away from the scene of offence, and he should also not have possibly reached the spot by 11‑00 a.m. as alleged by the prosecution. Mr. Azizullah Shaikh submits that, in the circumstances, the proper finding to record was that the entire case had become doubtful against all the four accused.

After hearing the learned counsel for the petitioners at some length,. we have formed the view that there is no merit in these submissions. It will be seen that both the Courts below have accepted the ocular evidence, mainly for the reason that three of the witnesses, including the complainant Hamzo, bore marks of injuries, thus showing beyond doubt that they were present at the time of the assault; and that the occurrence having taken place in broad daylight, there could be no question of any mistaken identity, specially when the parties were fully known to each other. The benefit of doubt has been given to accused Razul only as a matter of abundant caution on the premise that his alibi might possibly be true, and not that he was falsely implicated. In our view, such a finding does not, in any manner, weaken the probity of the evidence against the rest of the accused persons. The learned Judge was fully competent to sift the evidence in this manner and acquit Ra7ul as a matter of abundant caution, and not because he doubted the veracity of the evidence given by the eye witnesses.

On this view of the matter, the petition fails and is hereby dismissed.

Petition dismissed.

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