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Criminal Petition for Leave to Appeal No. 108 and Criminal Petition for Leave to Appeal No. 111 of 1983, decided on 26th May, 1986.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Motive‑‑Failure of motive not to react in every prosecution case.‑‑[Motive].

(b) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Accused hired assassins‑‑Accused leading to recovery of pistol which matched with crime empty recovered from spot‑‑Prosecution case disclosed by dying declaration‑‑Prosecution witnesses reliable and having no motive of their own to implicate accused‑‑Conviction and sentence maintained.

(c) Criminal Procedure Code (V of 1898)‑‑

‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), S. 302‑‑Acquittal‑‑Complainant unable to show that any of grounds on which acquittal of accused was ordered by High Court was unfounded‑‑Principles for setting aside acquittal not attracted in case‑‑Accused entitled to benefit of doubt‑Order of acquittal maintained.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioner (in Criminal Petition No. 108 of 1983).

Ijaz Hussain Batalvi, Senior Advocate Supreme Court with Ch. M. Aslam, Advocate‑on‑Record for Respondent No. 1 (in Criminal Petition No. 108 of 1983).

Mian Nusratullah, Senior Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Respondent No. 2.

Ch. Muhammad Ashraf Advocate Supreme Court for Petitioner. Ijaz Hussain Batalvi,

Senior Advocate Supreme Court and Ch. M. Aslam Advocate‑on‑Record for Respondent No. (in Cr.P. 108 of 1983).

Mian Nusratullah, Senior Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Respondent No. 2 (In Cr.P. 108 of 1983).

Date of ring: 26th May, 1986.

.‑‑Leave to appeal has been sought in these two petitions from judgment, dated 21st February, 1983, of the Lahore High Court; whereby on an appeal and reference in a case of murder Daim respondent (in Criminal Petition No. 108/1983) was acquitted and Criminal Petition No. 111/1983 Khamisa petitioner appeal from conviction and sentence of death under section 302, P.P.C. was dismissed.

The prosecution case briefly stated as given in the first petition is as follows:‑

"Muhammad Jahangir, deceased, had political differences with Hasan Mahmood and Ghulam Miran Shah and the parties had been litigating since 1968. Hasan Mahmood and Ghulam Miran Shah had given 30 Acres of land to Jam Muhammad Nawaz and Jam Ata' Muhammad for causing murder of the deceased. Jam Muhammad Nawaz was head of Badmash's of Ilaqa, who sent Khamisa, Daim (respondent No.1) and one Ghulam Mustafa to Chouk Shahbazpur, because it was known to them that the deceased was to visit the sugar mill for a meeting in connection with loss of his truck‑load of sugar‑cane. On 25‑2‑1978, at 10 a.m. when the deceased reached near Chouk Shahbazpur, Khamisa, Daim (respondent No.1 herein) and Ghulam Mustafa armed with pistols came to the spot. Khamisa fired from his pistol, which hit the deceased on the abdomen and the three accused persons, left the spot while firing The occurrence was also witnessed by Ch. Abdul Ghafoor (P.W.9) and Muhammad Yaqoob (P.W.8)."

Muhammad Jahangir, deceased, was removed in an injured condition to the hospital where he made a dying declaration which was recorded by a Magistrate, First Class, wherein he supported the prosecution case. Subsequently he died in the hospital.

At the trial the items led in evidence were the dying declaration; deposition of the two eye‑witnesses already mentioned; the recovery of an empty and a pistol from Khamisa petitioner which matched each other and, of course, the medical evidence and that of motive. The learned trial Judge convicted Khamisa and Daim under section 302, P.P.C. awarding death sentence to the former and life imprisonment to the latter.

Learned counsel for Khamisa has contended that the motive part of the dying declaration having not been established it would re‑act on the entire prosecution case and the dying declaration should have been rejected; that except for the bare names of the accused no particulars were given in the dying declaration; that it was an un-witnessed occurrence‑‑the two witnesses who deposed against the accused recorded their statements under section 161, Cr.P.C. four days after the occurrence; and lastly, that no identification parade was held. He also criticized the recoveries.

It has recently been held by this Court that it is not in every case that failure of motive would re‑act on the entire prosecution case. In this case there was no motive alleged against the accused persons. The motive alleged was against other alleged conspirators. Therefore, keeping in view this distinction the failure of the motive against the accused will not make any difference. Khamisa and Daim, as ‑stated, had no motive of their own. According to the prosecution they were hired assassins and in that connection the mention of their name alone would be enough for the police agency to identify them. This is what practically happened in this case. One of them namely, Khamisa led to the recovery of a pistol which matched the crime empty recovered from the spot. The criticism about the recovery has rightly been rejected by the learned Judges of the High Court. The late recording of the statements of the eye‑witnesses under section 161, Cr.P.C would have had some effect if there was no disclosure of the prosecution case at the earlier opportunity which as already " stated having been brought to light in the dying declaration. The argument does not have any serious effect on the reliability of the two witnesses who had no motive of their own to implicate the accused.

We having heard the learned counsel and having considered all the aspects of the case are satisfied that Khamisa has rightly been convicted and sentenced for the murder of Muhammad Jahangir deceased. His petition (Cr.P.No.111/1983) is, therefore, accordingly dismissed.

The complainant side has in the other petition sought leave against the acquittal of Daim by the High Court. The learned Judges gave the following reasoning for acquittal of Daim.

"The case of Daim appellant is distinguishable. The prosecution failed to prove beyond reasonable doubt that he had the intention common with Khamisa appellant to cause murder of the deceased. No active role was attributed to Daim appellant in the dying declaration or by the two eye‑witnesses. The dying declaration does not show clearly that Daim appellant was armed with a pistol. No recovery of pistol was made from Daim appellant. Not even a Lalkara is attributed to him. In the circumstances of the present case we do not consider it safe in the administration of criminal justice to maintain his conviction."

Learned counsel for the complainant side has not been able to show that any of the grounds was unfounded. In the circumstances of the case, the principles for setting aside the acquittal are not attracted in so far as Daim's acquittal is concerned. He could at least be given benefit of doubt. We accordingly also dismiss the second petition, namely, Criminal Petition No.108 of 1983.

M . Y . H . Petitions dismissed.

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