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Criminal Petition No. K-45 of 1980, decided on 11th January, 1981.

(On appeal from the judgment of Sind High Court dated 24-9-1980 in Cr. A. No. 76 of 1978).

----Ss. 302/34--[Murder-case]-Appreciation of evidence-High Court dismissing petitioners' appeal but quashing conviction of two co. accused on ground that excepts for their presence at vardat nothing found against them to show their participation in commission of alleged crime-Submission made on behalf of petitioners examined by Sessions Judge and High Court and rejected for cogent reasons View prevailing with Judges of High Court being based upon evidence produced by prosecution and considered as safe basis for founding guilt of petitioners on charge framed against them, no justification, held, made out for interference by Supreme Court.-[Evidence].

M. H. Junejo, Senior Advocate Supreme Court and N. A. Noon, Advocate-on-Record for Petitioner.

Date of hearing: 11th January, 1981.

This is a petition for special leave to appeal from the judgment of the Sind High Court dated 24-9-1.980 dismissing petitioner's appeal against the conviction recorded against them by Sessional Judge, Jacobabad under section 302/34, P. P. C. for which they were sentenced to life imprisonment, and to pay a fine of Rs. 500 each. The High Court, however, by the same judgment allowed the appeal of the other two convicts Khawand Bux and Rabnawaz, who were jointly tried, convicted and sentenced.

According to prosecution, about 4 months before the occurrence in the case, Mst. Fatima was declared by her husband Arbelo as a karl with one Bahar Shah, and due to fear of life she left her husband's house and came to live, in Thul, with her father Sahib Dino, who is blind; and her mother Mst. Shafooran. The two petitioners, -Jumo and Sadullah, are sons of Kbawand Bux and Arbelo is their cousin. The co-accused Rabnawaz is their relation, and all of them are related to Mst. Fatima and her family members. On 10-10-1976 at about sun-rise time P. W. Muhammad Siddiq, went to the house of his sister, Mst. Nooran, for fetching milk. Mst. Nooran is the mother of Mst. Shafooran. It. is said that Mst. Rani wife of Mst. Safooran's brother was also sitting there. goon afterwards, Mst. Shafooran and her daughter Mst. Fatima also came there. At about 10-00 a.m. the petitioner along with Khawand Bux and Rabnawaz suddenly came inside the house. The petitioners were armed with guns whereas their father Khawand Bux had a lath , and Rabnawaz was carrying a hatchet. . The petitioners challenged Mst. Fatima as Kari and fired their guns at her with the result that she fell down crying. On the cries raised by the inmates of the house, the assailants ran away firing in the air. Muhammad Siddiq then arranged for a Tonga, and carried the injured Mst. Fatima. with the help of others to the Thul Police Station, at a distance of three furlongs away and he lodged the report of the crime within 15 minutes of the incident. The injured was yet alive and her statement was recorded by Mr. Abdul. Aziz Second Class Magistrate, at 12-30 p. in. in the hospital. This statement was produced at the trial as dying declaration. It reads as follows:-

"I was sitting in the house of my maternal grand-father Jamal, alongwith my maternal grand-mother Noori and maternal aunt (Mami) Mst. Ranl, when Shadoo (Sadul(ah) Jumo, Raboo (Rab Nawaz) and Khandoo (Khawand) entered the house. Shadoo and Jumo were armed with guns. Ruboo was armed with a hatchet and Khandoo was armed with a lath . Jumo and others opened gun fire at me, whereupon I fell -down. Previously, there was allegation of Karanh' against me with Syed Bahar Shah. Jumo and Shadoo had opened fire at me."

At the trial, the prosecution case rested on the ocular evidence of four witnesses, namely, Muhammad Siddiq, Mst. Shafooran, Mst. Nooran and Mst. Rani, and also, the dying declaration of the deceased. In defence, the accused denied the prosecution allegation and pleaded enmity with the prosecution party,

The Sessions Judge, Jacobabad, who tried the case believed the prosecu tion version and convicted all the four accused under section 302/34, P. P. C. and sentenced each of them to life imprisonment and to pay a fine of Rs. 500, each. The petitioners were, however, in addition. sentenced to R. I, for two years under section 13-D of the Arms ordinance.

On appeal, the learned Judges of the Division Bench of the High Court, while agreeing with the view that prevailed with the learned Sessions Judge, gave benefit of doubt to the two convicts, Khawand Bux and Rab Nawaz for the reasons stated in their words that "except their presence at the place of occurrence, when Rab Nawaz is stated to be carrying a hatchet and Khawand (with) a lath , nothing has been deposed, to indicate of suggest, that they had done anything in furtherance of the common intention of the appellants. They bad not said a word at the time of occurrence nor had used their weapons, in any manner whatever. Except (for) their presence at the vardat, there is nothing against them to show their participation in the commission of the alleged crime."

Mr. M. H. Junejo, learned counsel for the petitioners submits that in view of the deep-rooted enmity between the parties, reliance should not have been placed on the, ocular testimony of the interested and inimical witnesses, and he further submitted in this behalf that the dying declaration of Mst. Fatima was not the safe basis so as to provide the necessary corroboration because she was accompanied by her relations - who had already lodged the report of the crime and they must have prevailed upon her to name those persons as the culprits whom they had falsely implicated.

These submissions have already been examined by learned Sessions Judge and the learned Judges in the High Court and have been rejected for cogent reasons. Since the view that prevailed with the learned Judges in the High Court is based upon the evidence produced by the prosecution which has been considered as the safe basis for founding guilt of the petitioner on the charge framed against them, there is no justification, whatsoever, for this Court to interfere.

This petition is, therefore, dismissed in limine.

Petition dismissed.

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