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Criminal Petition for Special Leave to Appeal No. 361 of 1979, decided on 20th December 1980.

(Against the judgment and order, dated 20th June, 1979 of the Lahore High Court in Criminal Appeal No. 66/74/BWP).

----Ss. 302/149, 324/149 & 323/149‑‑[Murder‑case]‑Appreciation of evidence‑No previous enmity between deceased, eye‑witnesses and accused appellants‑No motive for eye‑witnesses to falsely implicate any of appellants‑One person killed on side of complainant party and two injured while none at all hurt on side of appellants‑Such fact indicating assailants having been numerically far superior to complainant party‑Eye‑witnesses naming six persons to be assailants and such number not appearing to be unusually large‑No basis for suspecting eye‑witnesses having made any false additions‑View taken by High Court being sustainable on evidence on record petition dismissed‑Constitution of Pakistan (1973), Art. 185(3).

S. Roshan Ali Sindhu, Advocate Supreme Court and Masud Akhtar, Advocate‑on‑Record for Petitioners.

Nemo for the State

Date of hearing: 20th December 1980.

J.‑The five petitioners namely Mansur, Piran Ditta, Rasula, one Qadra, and one Shahid were accused under sections 148, 902/324, 323/149, P. P. C. Shahid, co‑accused has absconded. The five petitioners were, however, tried and convicted of the aforementioned offences by the Sessions Judge, by his judgment dated 22‑6‑1974, and were sentenced as follows .

(a) Under section 302/149 each of them was sentenced to imprisonment for life and 'a fine of Rs. 500 each and a further one years' R. I. in default of payment of fine.

(b) Under section 324/149 all of them were sentenced to two year's R. I. and a fine of Rs. 100 each and four months' R. I. in default of payment of fine.

(c) Under section 323/149 all of them were sentenced to one year R. I. each and a fine of Rs. 50 each. Further two months' R. I. in default of payment of fine.

2. All the five petitioners filed a joint appeal before the High Court which was dismissed vide the impugned judgment dated 20th June, 1979.

3. The occurrence took place on 30‑8‑72 at 6 a.m. at place known as Kachha Malik in Village Bangla Ichha, at a distance of 12 miles from Police Station, Rojhan, District Dera Ghazi Khan.

4. The motive for the occurrence is stated to be that the land of the parties in Kachha Malik (village Bangla Ichha) is contiguous to each other. The petitioners wanted the deceased to give them passage through their land but the deceased refused to oblige them. Due to this, their relations had become strained. According to the prosecution at 6 a.m. on the date of occurrence when the deceased was ploughing his land, all the petitioners and Shahid, absconder, turned up, armed with different weapons. Piran Ditta was armed with a hatchet. Manzur had a sword, while the other four were armed with sotas. They attacked the deceased causing him a number of injuries. Karim Bux and his brother Amir Bakhsh, who were ploughing their land nearby, rushed to the spot to rescue the deceased but they too were attacked and injured by the accused. Thereafter the assailants left the spot carrying their weapons with them. The deceased who was badly injured, was taken to the dispensary and from there to Civil Hospital at Rojhan but the injured succumbed to his injuries before reaching the hospital.

The F. I. R. was lodged at 2 p.m. by Karim Bakhsh, P. W. 9. It was recorded by Ch. Muhammad Shafi S. R. C., P. W. 12. During the investigation Manzur, petitioner is stated to have produced his blood stained sword before the Investigating Officer. Piran Ditta produced kulhari P. 4 while Sona produced his sota which was not stained with blood. These recoveries were, however, not relied upon by the two Courts below.

6. The prosecution relied mainly on the ocular testimony of Karim Bakhsh, P. W. 9 and Amir Bakhsh, P. W. 10 and Miran Bakhsh, P. W. I 1 and the medical evidence. The Courts below believed the testimony of Karim Bakhsh and Amir Bakhsh, P. Ws. (Karim Bakhsh, P. W. 9 had sustained six injuries 3 of which were caused by sharp‑edged weapon and Amir Bakhsh, P. W. 10 had sustained 2 injuries). Since both of them had sustained injuries during the occurrence their presence at the spot could not be doubted.

7. The main contention raised by the learned counsel for the petitioner before us was that while it is correct that one or more out of the accused persons might have attacked and injured the deceased and the two P. Ws. but the complaint party had exaggerated and added the names of some of their relatives who had not joined them in the attack, and that since it could not be ascertained as to who were the unknown persons, all of them are entitled to acquittal. This contention was also raised before the High Court which was repelled in the following words in paragraph No. 11 of the impugned judgment

AII the appellants were closely related to each other. Thus Piran Ditta,Rasula and Qadra were real brothers, Manzur was their real paternal uncle and Sona was their cousin. The learned counsel for the appellants contended that all the appellants belonged to one family. There was a possibility that some of them might have beers falsely implicated. I do not find any merit in this contention. It is to be noticed that there was no previous enmity at all between the deceased; Karim Bakhsh P. W. 9 and Amir Bakhsh, P. W. 10 on one hand and the appellants on the other. There was, therefore, hardly any motive for the two eye‑witnesses to falsely implicate any of the appellants. It is also to be noticed that from the side of the com plainant party, one person was killed and two were injured, while from the side of the appellants not one, at all, was hurt. This indicates that the assailants were numerically far superior to the complainant party. The eye‑witnesses have named six persons to be their assailants. This does not appear to be an unusually large number. Further, as already mentioned, both the parties were tenants of the same landlord. It is somewhat unlikely that their landlord would have permitted any false implication. However, that may be, I cannot find any basis for suspecting that the eye‑witnesses have made any false additions.

8. We feel that the view taken by the High Court is sustainable on the evidence on the record. As mentioned earlier, 15 injuries were caused to 3 persons. The number of injuries is commensurate with the number of assailants mentioned by the eye‑witnesses. The eye‑witnesses had no previous enmity with the accused and as such had no motive to involve the accused falsely in this case. We are, therefore, not inclined to interfere in this case. The petition is, consequently, dismissed as being without merit.

Petition dismissed.

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