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Criminal Appeal No. 105 of 1984, decided on 2nd July, 1985.
(On appeal from the judgment and order of the Lahore High Court, dated the 16th December, 1976 in Criminal Appeal No. 1115 of 1975/Murder Reference No. 21 of 1976).
‑‑‑Ss. 302, 307, 148 & 149‑‑Acquittal of co‑convicts‑‑Extension of benefit to others‑‑Seven persons convicted under S. 302/307/148/149, P.P.C.‑ Six filing appeal before Supreme Court‑‑On analysis evidence being found in a state of serious doubt, all acquitted‑‑Benefit extended to seventh one who on filing appeal later, was also acquitted in order to do complete justice.
Muhammad Aslam and others v. The State 1972 S C M R 194 rel.
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/307/148/149‑‑Re appraisal of evidence‑‑Ocular testimony as to identity of participants and fixation of their individual participation/ role, not accepted Medical evidence also not corroborating‑‑Other infirmities seriously detracting from truthfulness of case‑‑Evidence found in a state of serious doubts on analysis‑‑Appeal accepted.
M. Bilal, Advocate Supreme Court for Appellant.
Ghulam Ahmed, Advocate Supreme Court with M. Yousaf Khan, Advocate‑on‑Record for the State.
Date of hearing: 2nd July, 1985.
.‑‑The appellant was tried alongwith six others, namely, (1) Khushi Asif, (2) Basharat Ali Shah, (3) Rehmat Masih, (4) Sardar Yousaf, (5) Azmat Pervaiz and (6) Keemti Yousaf, for the murder of Salamat Masih and Mst. Sardaran at 9 p.m. on the 24th August, 1973, convicted under sections 148, 302 and 307 read with section 149 of the Pakistan Penal Code, and sentenced to 2 years' R.I. 3 years' R.I. and imprisonment for life, respectively and also to pay fine.
On appeal the High Court upheld the convictions and sentences. The appellant however did not seek leave to appeal whereas those whose convictions and sentences were maintained filed two separate petitions for gave to appeal and leave was granted. By judgment dated the 4th July 1981 in Criminal Appeals Nos. 37 and 38 of 1978 this Court acquitted the others holding that it was not possible to accept the ocular testimony as to the identity of the participants nor from it to fix their individual participation. There was also variation as to the nature of injuries some of which were found to have been caused with a blunt weapons although the prosecution case was that all of them were armed with fire arms and had fired. There were also other infirmities which seriously detracted from the truthfulness of the case. This Court in its ultimate analysis held the evidence to be in a state of serious doubt. Accordingly all of them were acquitted but as the case of Mumtaz was not before the Court he continued to undergo the sentence imposed by the trial Court.
In such like case, namely, Muhammad Aslam and others v. State 1972 S C M R 194 benefit was extended to the absconding appellant whose case was not separated but he was also acquitted in order to do complete justice in the case.
Accordingly we would allow the appeal and acquit him.
He shall be released forthwith unless he is required in any other case.
M.I. Appeal allowed.
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