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Criminal Petition for Special Leave to Appeal No. 229 of 1980, decided on 5th December, 1981.
(On appeal against the judgment of the Lahore High Court, Lahore dated 5‑2‑1981, passed in Criminal Appeal No. 672 of 1978).
Constitution of Pakistan (1973)‑
‑ Art. 185 (3)‑Leave to appeal‑Petitioner's counsel pointing out that High Court's observation as to prosecution having improved its story by adding name of a woman as one of accused and therefore testimony of prosecution witness could not be implicitly relied upon with regard to other accused, i.e. petitioners‑Held: Matter needs further con sideration‑Leave to appeal granted for reappraisal of evidence to see if Courts below followed well‑settled principles of appreciation of evidence in criminal cases.
Ijaz Hussain Batalvi, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing : 5th December, 1981.
‑Liaqat Shah, Sana Shah, Shah Nawaz, Nazar Shah and Zubair Shah, petitioners, all of whom are real brothers inter se were tried alongwith their sixth brother Zaka Shah (aged 15 years) and their father Muhammad Shah (aged 100 years), as well as their sister Mst. Batan widow of Mehdi Shah (deceased) for the murder of four persons, namely, Mehdi Shah, Abdul Haq, Mst. Akhtari and Mst. Mukhtaran (the maid servant of Mst. Akhtari deceased). The learned trial Court acquitted Muhammad Shah and Zaka Shah (co‑accused), but convicted the remaining accused, inter alia under sections 302/149, P. P. C., for which it sentenced the five petitioners to death, but sentenced Mst. Batan to imprisonment for life. On appeal the High Court acquitted Mst. Batan, on the ground that the prosecution has tried to improve its case by adding her name amongst the accused, but maintained the conviction and sentences of the petitioners under sections 148 and 302/307/452/149, P. P. C.
Hence the present petition.
2. The occurrence took place at 1‑00 p.m. on 15‑10‑1975 in Village Peer Kot, Police Station Mangtanwala, District Sheikhupura. The motive behind this occurrence is that Mehdi Shah (deceased) had married Mst. Batan, the sister of the petitioners, about 14/15 years ago and they had three sons out of the wedlock. Mst. Batan was, however, a very quarrelsome woman. About four years prior to the occurrence Mehdi Shah (deceased) deserted her and married another woman namely Mst. Akhtari (deceased), but kept on supporting his earlier wife i.e. Mst. Batan. This was, however, deeply resented by her family. On the morning of the fateful day Mst. Surraya sister of Mst. Batan went to the house of Mst. Akhtari (deceased) and abused her. Mst. Akhtari gave blows to Mst. Surraya. Mst. Mukhtaran (the maid‑servant of Mst. Akhtari) also joined Mst. Akhtari in the beating. Mst. Surraya informed her brothers about this beating, who were infuriated. They went out armed with guns and shot Mehdi Shah and Abdul Haq to death at the house of the complainant. They then went to the house where Mst. Akhtari (deceased) and Mst. Mukhtaran resided and shot them dead as well.
The F. I. R. was lodged by Ahmad Shah complainant (P. W. 6) at 2‑30 p.m. on the same day, which was recorded by Muhammad Ashraf, A. S. I. (P. W. 11). After recording the F. 1. R. he went to the spot and recovered empty cartridges. Shot guns were also recovered from Nazar Shah and Peer Shah, accused. The guns and the crime empties matched with each other.
3. At the trial the prosecution relied on the testimony of Ahmad Shah (P. W. 6), Feroz Shah (P. W. 7), Mst. Safia Bibi (P. W. 9), and Mst. Rasoolan Bibi (P. W. 10). Out of these witnesses Mst. Safia Bibi and Mst. Rasoolan Bibi, P. Ws. had sustained injuries during the incident. Three other persons who were mentioned in the F. I. R., as eye‑witnesses, namely, Rajey Shah, Zubair Shah and Hayat, P. Ws. were given up as unnecessary. The prosecution also relied on the recoveries as against Nazar Shah and Zubair Shah, petitioners.
4. The counsel for the petitioners pointed out that the learned Judge of the High Court has observed that the prosecution had improved the story by adding the name of Mst. Batan as one of the accused. In other words their testimony could not be relied upon implicitly with regard to the other accused (i.e. the present petitioners) without independent corrobora tion. He submitted further that the only corroboration available is that of recovery of, the fire‑arms only against Nazar Shah and Zubair Shah, petitioners.
5. In view of the above‑noted submission of the counsel we feel that the matter needs further consideration. Leave is, therefore, granted for reappraisal of evidence to see if the learned Courts below have followed the well settled principles of appreciation of evidence in criminal cases.
The learned counsel has also brought to our notice that the parties are very closely related to each other, and have, compromised the matter between them selves. He has placed the compromise deed on the record.
Leave granted.
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