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Criminal Petition for Special Leave to Appeal Nos. 436 and 459 of 1985, heard on 31st May, 1986.

(Against the judgment of the Lahore High Court, Lahore, dated 29‑9‑1985, passed in Criminal Appeal No. 699 of 1981).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302/34‑‑Re‑appraisal of evidence‑‑Appeal against conviction‑‑Plea raised that there was no sufficient corrboratory evidence‑‑Leave to appeal granted to consider whether High Court had followed well‑established principles for appreciation of evidence in criminal cases.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302/307/148/149‑‑Re appraisal of evidence‑ ‑Appeal against acquittal‑‑Acquittal of certain accused challenged on ground that evidence against them was same on basis of which conviction of remaining accused was maintained‑‑Leave to appeal granted to consider whether High Court had followed well established principles for appreciation of evidence in criminal cases.

Nemat Khan, Advocate Supreme Court with Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners (in Appeal No. 436 of 1985).

Waheeduddin Virk, Advocate Supreme Court and Rana M.A. Kadri, Advocate‑on‑Record for Respondents (in Petition No.436 of 1985 and for Petitioner (in Petition No.459 of 1985) .

Date of hearing: 31st May, 1986.

This order will dispose of:‑‑

(i) Criminal Petition No. 436 of 1985 filed by Ghulam Abbas, Sher Abbas, Ibrahim and Ghulam Shabbir, against their conviction and sentences: and

(ii) Criminal Petition No. 459 of 1985 filed by Muhammad Ashraf Khan complainant against the acquittal of some of the respondents of the charge under section 302, P.P.C. and for the enhancement of sentences of the remaining respondents.

2. Before us, however, the petitioner's counsel in Criminal Petition No. 459 of 1985 pressed the case only against Munawar and Sibtain Shah, respondents 5 and 6 respectively in that petition.

3. Facts giving rise to the petition are, briefly, that 10 persons namely, Ghulam Abbas. Sher Abbas, Ghulam Shabbir, Ibrahim, Munawar Hussain (petitioners in Criminal Petition No. 436 of 1985), Munawar Hussain, Sibtain Shah, Abid Hussain, Jehan, Ghulam Hussain and Ahmad (respondents in Criminal Petition No. 459 of 1985, were tried for the double murder of Muhammad Afzal Khan and Sardar Muhammad and making murderous assault on some of the P.Ws. The learned trial Court acquitted the last mentioned four accused while it convicted 6 of them namely Ghulam Abbas, Sher Abbas, Ibrahim, Ghulam Shabbir, Sibtain Shah and Munawar Hussan, who were sentenced as follows:‑

"Each to the two years' R.I. and a fine of Rs.300 or in default three months' further R.I. under section 148, P.P.C.

Each to death and fine of Rs.2,000 or two years' R.I. under section 302/149, P.P.C. for the murder of Muhammad Afzal Khan deceased. Fine if realised shall be paid to the heirs of Muhammad Afzal Khan deceased as compensation.

Death and a fine of Rs.2,000 or in default two years' R.I. under section 302/149, P.P.C., read with section 301, P.P.C. for the murder of Sardar Muhammad deceased. The fine if realized shall be paid to the heirs of Sardar Muhammad deceased. Four years' R.I. and a fine of Rs.500 or in default six months' R.I. under section 307/149, P.P.C. The fine if realised shall be paid to the P.Ws. in equal shares as compensation."

They filed an appeal before the High Court, which, vide the impugned judgment, dated 29‑9‑1985, acquitted Sibtain Shah and Munawar Hussain but maintained the conviction under section 302/34, P.P.C., of the remaining four accused, namely, Ghulam Abbas, Sher Abbas and Ghulam Shabbir. All of them were however, acquitted of the charges under sections 307/149, P.P.C. and 148, P.P.C.

Death of Ghulam Abbas was confirmed but the sentences of the remaining 3 accused were reduced to imprisonment for life.

4. In support of its case the prosecution relied on the ocular testimony of Abdul Aziz Khan (P.W. 11), Muhammad Sher (P.W. 12) and Ghulam Ahmad (P.W. 13); recovery of the rifles found from Ghulam Abbas, Ghulam Shabbir and guns found from the remaining four accused who were convicted by the trial Court could not be matched with any empties. It also relied on the medical evidence and the motive.

5. The learned counsel for the complainant submitted that the Courts below had believed Muhammad Sher (P.W. 12) as he was an independent person who is not related to either party and that his testimony is corroborated by the recovery of rifles from six convict‑accused as well as motive and the medical evidence. As such the accused were rightly convicted.

6. Counsel for the accused‑petitioners submitted on the other hand that the High Court had erred in confirming the death sentence of Ghulam Abbas because the role attributed to him is the same as that of Sher Abbas and Ghulam Shabbir, whose sentences were reduced to imprisonment for life. He carried us through the relevant portion of the narration of facts to demonstrate that‑the only special feature in part alleged to have been played by Ghulam Abbas was that he fired the first shot.

He submitted further that the prosecution case rests on the solitary statement of Muhammad Sher (P.W. 12), which cannot be said to have been corroborated by the mere fact of recovery of fire‑arms from them. Nor can the injuries found on the persons of the two deceased said to constitute corroboratory evidence qua any particular accused.

7. As regards Criminal Petition No. 459 of 1985, the counsel for the petitioners in that petition submitted that the High Court had erred in acquitting Munawar Hussain and Sibtain Shah, because the evidence against them is the same on the basis of which the High Court maintained the conviction of the remaining four accused.

8.After going through the impugned judgment we feel that the contentions raised by the learned counsel in each case have some force and need further consideration. Leave is, therefore, granted to consider whether the High Court had followed the well‑established principles for appreciation of evidence in criminal cases.

9. Bailable warrants shall issue against Munawar Hussain and Sibtain Shah, respondents in Criminal Petition No. 459 of 1985, in the sum of Rs.20,000 with two sureties each in the like amount, to the satisfaction of Assistant Commissioner Mianwali

M.I. Leave granted.

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