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Criminal Petition for Leave to Appeal No. 25/R of 1986, decided on 29th June, 1986.

(On appeal from the judgment and order of Lahore High Court, dated 22‑3‑1986 in Criminal Appeal No. 605 of 1984).

‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.326/34‑‑Finding of High Court in convicting accused were in consonance with principles of dispensation of criminal justice‑‑Nothing was pointed out by defence to discredit testimony of prosecution witnesses‑‑Leave refused.

Aftab Farrukh, Senior Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 29th June, 1986.

The accused /petitioners Siraj and Rashid seek leave to appeal against the judgment and order of a learned Single Judge of the Lahore High Court, dated the 22nd March, 1986 passed in Criminal Revision 605 of 1984.

2. The accused/ petitioners, along with co‑accused Muhammad Ashraf and Abbas Ali and the acquitted accused Mukhtar Ahmad were tried by the learned Additional Sessions Judge, Kasur under section 302/34, P.P.C. for committing the murder of Muhammad Sadiq deceased. Each of the accused /petitioners was sentenced to life imprisonment and a fine of Rs.10,000. In default of payment of fine to suffer further R.I. for three years each, while Mukhtar Ahmad, accused, was acquitted, per judgment, dated 24th September, 1984.

On appeal before the Lahore High Court, conviction and sentence of the aforementioned four accused under section 302/34, P.P.C. was set aside, and they were convicted in the case under section 326/34, P.P.C. and sentenced to seven years' R.I. each with a fine of Rs.10,000 each, in default, further R.I. for three years each.

3. Learned counsel for the petitioners contends that in view of the infirmities of the prosecution case the convictions of the two petitioners was not in conformity with the settled principles of administration of criminal justice; that the trial Court having discarded the prosecution case implicating Mukhtar Ahmad, acquitted accused, who was attributed to have caused an injury with a dagger, convicted the two accused/ petitioners, both of whom were allegedly armed with fire‑arms but no injury on the person of the deceased was found to have been caused by fire‑arm; and the learned High Court, Judge also overlooked this aspect of the case causing miscarriage of justice.

The learned counsel further submitted that the trial Court, in paragraph 11 of its judgment, having disbelieved the recoveries of Kandhala, Dang and Chhuri all of which were found to be stained with human blood, was not justified in believing the recoveries of the gun and pistol from the two petitioners particularly when the witnesses of recovery were the same persons in all the recovery memos. The learned counsel also challenged the recovery of crime empties which were found to have matched the gun and the pistol, recovered from the two petitioners on the ground that the said recoveries could not be supported at the trig by any witness from the public and the only witness of recovery namely Muhammad Rafique A.S.I., being a police officer, was obviously interested in the success of the prosecution case and was thus unreliable.

4. Briefly stated, the case against the accused /petitioners is that they alongwith others namely Muhammad Ashraf, Abbas Ali and Mukhtar Ahmad attacked Muhammad Sadiq deceased on 12th October, 1982 at about Dopaharvela while Muhammad Ashraf accused was armed with a Kandhala, Abbas accused with a Dang, Mukhtar Ahmad with a Chhuri, Siraj accused /petitioner with a gun and Rashid accused /petitioner with a carbine. Statement Exh.PK of Muhammad Sadiq deceased was recorded at 3.30 P.M. at the Police Station on the same day by Muhammad Rafique (A.S.I.) P.W.10 on the road near the police station where the deceased had been brought on a truck trolly. In this report, the motive alleged by the deceased was that he and his two brothers owned land in village Cheena Otar. Sons of their uncle namely Muhammad Ashraf etc. also owned land in the same area and the path leading to the land of the deceased, passed through the land of Ashraf etc. which was closed by them sometime ago and which was forcibly opened by the deceased. This annoyed the accused and hence, the murderous attack on him.

5. On the day of occurrence, Muhammad Sadiq deceased along with his son Muhammad Sarwar P.W.8 was coming to the village from his land. When they reached near the house of Muhammad Ashraf accused, the accused /petitioners along with the other co‑accused came out, armed with various weapons, and attacked the deceased. Accused /petitioner Siraj was armed with a gun while Rashid was armed with a pistol. The former fired at the deceased who fell to the ground and escaped injury; meanwhile all the accused started dealing blows to the deceased with their respective weapons. From the nearby field, Shera and Chanan (both given up) and Nawab P.W.6 reached the spot and rescued the deceased. It is stated hat Rashid accused fired in the air with his pistol threatening the witnesses. Report was lodged by the deceased the same day. The two Courts have relied upon the ocular testimony of the witnesses, recoveries effected at the instance of the two accused/ petitioners and the medical evidence. The learned High Court Judge held that the ocular account furnished by Nawab Din P.W.6 and Muhammad Sarwar P.W.8 is worth reliance as there is no enmity or animosity between these witnesses and the accused /petitioners. As regards the recoveries the learned Judge observed that statements of Dost Muhammad P.W.9, Muhammad Rafiq (A.S.IJ P.W.10 and Mumtaz Ahmad P.W.11 are consistent and nothing had been brought out in the evidence of Muhammad Rafiq (A.S.I) P.W.10 to show as to why his statement should not be believed. The recovery of the crime empties, therefore, stands established. Recovery of gun P.4, Kandala P.6, Dang P.7 and Desi pistol P.8 at the instance of Siraj, Ashraf, Abbas Ali and Rashid Ahmad stand proved.

6. We have gone through the evidence and heard the learned counsel for the petitioners and we find that the finding of the learned Judge of the High Court is in consonance with the principles of dispensation of criminal justice. Nothing was pointed out by the learned counsel Mr. Aftab Farrukh to discredit the testimony of the witnesses. We find no merit in this petition which is, consequently, dismissed.

M . Y . H . Petition dismissed.

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