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Criminal Appeal Nos. 212 and 213 of 1980, decided on 1st December, 1984.

---Art.185(3)--Penal Code (XLV of 1860), 5.302/34--Circumstantial evidence--Leave to appeal granted to consider whether circumstantial evidence was sufficient to maintain conviction of accused in circumstances of case.--[Evidence].

---S.302/34--Prosecution witness knowing names of two accused but did not know third accused who was seen by him sitting in car with deceased on day of occurrence and therefore did not name such person- Such person not formally identified by such witness because he had already seen him at time of his arrest--Held, identity of said accused as third person in whose company deceased was last seen alive, had not been proved beyond reasonable doubt--Conviction of such accused was therefore set aside and acquitted.

---S.302/34--Fact that deceased was last seen alive in company of accused coupled with fact that they were found in possession of car being driven by deceased at relevant time, held, constituted sufficient circumstantial evidence for maintaining their conviction under 5.302/34, P.P.C.--[Evidence].

Ch. Ghulam Bari Salimi, Advocate Supreme Court for Appellant in Criminal Appeal No. 212 of 1980 and Rana Maqbool Ahmad, Advocate- on-Record (absent) for Appellants.

S. Wajid Hussain, Advocate-on-Record for Appellant in Criminal Appeal No. 213 of 1980).

K.E. Bhatti, Advocate Supreme Court for the State. Date of hearing: 1st December, 1984.

This judgment will dispose of Criminal Appeal No.212 of 1980 filed by Muhammad Azam and Hassan Muhammad and Criminal Appeal No.213 of 1980 filed by Muhammad Salim, against their conviction and sentences in a murder case.

2. Shorn of unnecessary details, the basic facts leading to these appeals are that Amanullah P.W.10 resident of Mohallah Jahangirabad, Sheikhupura, owned a Car LEE-2820. He engaged Sardar deceased as his driver for the said car. Apart from using it for his personal use, Amanullah P.W also plied it as a taxi. He went for shopping in the said car - on 6-10-1973 and while he was busy at shopping, Sardar driver took away the car. Amanullah tried to look for him but did not find him anywhere. Next day on 7-10-1983, a dead body with its throat slit with a sharp-edged weapon, was found lying in the field of one Mashooq son of Boota of Village Kot Bhamidas, District Sheikhupura. He promptly informed Abdul Ghani Lambardar P.W.8 about it. The Lambardar reported the matter to Mukhtar Ahmad S.I. P.W.11 S.H.O. Police Station Mangtanwala, at 2 p.m. The identity of the dead person not being known his name was not mentioned by Abdul Ghani Lambardar in the F.I.R.

On the 8th of October, 1973, Amanullah P.W, also reported the matter to the police that his driver was missing. On 9-10-1973, Muhammad Ishaq P.W.9 a cousin of Amanullah P.W. heard that Sardar deceased who was engaged by Amanullah as his driver was missing. He, therefore, went to the house of Amanullah P.W.10 and told him that 3 days earlier, on the 6th of October, 1973, he had gone to the taxi-stand where he had seen 3 persons sitting in his car and that on his (Muhammad Ishaq's) request, he had also dropped him at the bus stand; as he had to take bus for Lyallpur (now Faisalabad). He also told him that out of the 3 persons sitting in the car with Sardar driver two persons, namely, Muhammad Azam and Muhammad Salim were known to him but he did not know the third person. It is stated further that while Muhammad Ishaq was sitting with Amanullah P.W. in the latter's house someone came with the newspaper and showed him the photograph of Sardar driver in it as the person who had. been found murdered. Although, the name of the deceased was not mentioned with the photograph yet Muhammad Ishaq and Amanullah recognized him as Sardar (deceased). Both of them then went to the Police Station Mangtanwala where on inquiry the police told them that the dead body of the deceased (Sardar) had already been buried after the post-mortem examination. Muhammad Ishaq thereupon informed the police that on 6-10-1973, he had seen Muhammad Salim and Muhammad Azam appellants alongwith another person whom he i.e. Muhammad Ishaq did not know, sitting with Sardar deceased in his car which they had hired as a taxi and that on his request, he Sardar also dropped him at the bus stand. A search was made for the accused and, finally, on getting some information regarding the whereabouts of the accused-appellants, the Investigating Officer formed a raiding party including the abovesaid Amanullah and Muhammad Ishaq, P.Ws, and went in search of the accused in a wagon. When they reached near Muridke they found a car parked on the roadside near a petrol pump. Amanullah and Muhammad Ishaq P.Ws pointed out the car. The police parked the wagon in front of the car, got out of it and arrested the accused /appellants who were standing nearby. A few days later a radio set which was stated to have been recovered from Hasan Muhammad appellant and a blood-stained knife P.5 is' stated to have been recovered from Muhammad Salim appellant. They were thus challaned and sent up for trial to the Court of Session.

3. At the trial the prosecution relied on the evidence of Muhammad Ishaq P.W.9 who had last seen Sardar deceased in the company of the 3 accused-appellants; evidence of the recovery of car driving by the deceased from the possession of the appellants; recovery of the radio set and the blood-stained knife recovered from Hassan Muhammad and Muhammad Salim appellants, respectively, and the medical evidence which showed that the deceased had been done to death with a sharp-edged weapon.

4. The learned trial Court believed the evidence and convicted all the three accused-appellants under section 302/34, P.P.C. on the basis of the remaining circumstantial evidence and sentenced each of them to death.

All the three convicts filed an appeal before the High Court which discarded the evidence of recovery of the car, radio set and the knife, but all the same, maintained their conviction and confirmed the death sentences, on the basis of the remaining evidence.

5: Feeling aggrieved Muhammad Azam and Hassan Muhammad filed Cr. P.S.L.A. No.168/79 while Muhammad Salim appellant filed Cr.P.S.L.A No.178/79, before this Court. Leave was granted in both the cases to consider whether in the circumstances of this case, circumstantial evidence was sufficient to maintain the conviction of the appellants.

6. We have heard the learned counsel for Muhammad Azam and Hassan Muhammad and the learned A.O.R. for Muhammad Salim. We have also gone through the judgments of the two Courts below and the evidence of the relevant witnesses.

We notice that although Muhammad Ishaq P.W.9 knew the names of two of the appellants, namely, Muhammad Salim and Muhammad Azam but he did not know the third person who was sitting in the car with' Sardar deceased, on the 6th of October, .1973, and therefore, did not name him. Nor was he i.e. Hassan Muhammad, the third appellant got formally identified by Muhammad Ishaq because he had already seen him at the time of his arrest near the petrol pump at Kamonke.

7. After giving our careful consideration to the matter we feel that the identity of Hassan Muhammad appellant as the third person in whose company the deceased was last seen alive, has not been proved beyond reasonable doubt. We, therefore, allow Appeal No.212/80 as far as he Hasan Muhammad is concerned; set aside his conviction and acquit him. He shall be released forthwith, unless wanted in some other case.

8. As for the remaining two appellants, namely, Muhammad Azam and Muhammad Salim, we, are of the considered view that the fact that Sardar deceased was last seen alive in their company, coupled with the fact that they were found in possession of the car driven by the deceased, constitute sufficient circumstantial evidence for maintaining their conviction under section 302/34, P.P.C. We, therefore, dismiss Cr. Appeal No.212/80 as far as Muhammad Azam appellant is concerned.

For the same reasons we also dismiss Criminal Appeal No.213/80 filed by Muhammad Salim appellant.

M . Z . M . Order accordingly.

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