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Criminal Petition for Special Leave to Appeal No. K‑5 of 1982, heard on 21st December, 1982.
‑‑‑Art . 185 (3)‑‑Penal Code (XLV of 1860) , S . 302 / 34‑‑Petition for leave to appeal against order of acquittal passed by High Court‑‑Perusal of record showing that High Court granted benefit of doubt to accused on basis of legitimate doubts that arose from prosecution case itself‑‑No valid justification existing to interfere‑‑Leave refused.
Osman Ghani Rashid, Advocate Supreme Court and Vakil Ahmad Kidwai, Advocate‑on‑Record for Petitioner.
Muzaffar Hasan, Advocate‑on‑Record and Abdul Sattar Shaikh Additional Advocate‑General Sind, for Respondents.
Date of hearing: 21st December 1982.
This is a petition for leave to appeal from the judgment of Sind High Court, dated 26‑11‑1981 allowing an appeal filed by respondents 1 to 4 and in result acquitting them of the charge under section 302/34, P.P.C. for which they were held guilty by the Sessions Judge, Dadu.
The report of the crime was lodged by petitioner Ali Hassan son of Dilawar deceased on 16‑4‑1977 at 9‑00 a.m. at Rukkan Police Station, Dadu. According to the version of the incident stated in the F.I.R., petitioner, his father Dilawar, his cousin Nawas and Ghulam Rasool were going to their village when the four respondents suddenly confronted them. Arz Muhammad and Bashir respondents were armed with pistols, Jamal respondent had a hatchet and Faiz Muhammad respondent was empty‑handed. On the instigation of Faiz Muhammad, Arz Muhammad opened the attack and fired his pistol at Dilawar which was followed by another fire by Bashir. The two co‑accused threatened the petitioner and his party men not to come near. On their cries, however, villagers including Din Muhammad and Ali Bux reached the scene upon which the culprits ran away.
At the trial, prosecution relied on the ocular testimony of four P.Ws. All Hassan, Ali Nawas, Ali Sher and Ghulam Rasool; and the evidence in corroboration of P.W. Din Muhammad and Ali Bux. Apart from this, reliance was placed on the circumstantial evidence of recoveries of crime pistols from Arz Muhammad and Bashir accused and hatchet from Jamal accused. The motive of the crime was that about 10 months earlier Shamul son of Faiz Muhammad accused was injured in a fight with Dilawar who was challaned in the case. He was released on bail about six months before the incident, and it is stated that the accused committed the crime in order to seek revenge.
The learned Sessions Judge, Dadu, who tried the case did not rely upon the circumstantial evidence of alleged recoveries of the crime weapons from the accused but he believed the ocular testimony and accordingly held all the accused guilty under section 302/34, P.P.C. for which he awarded death sentence to accused Arz Muhammad and Bashir and life imprisonment to the co‑accused.
On a joint appeal filed by the convicts and on reference for the confirmation of death sentences, learned Judges in the High Court however held that, in view of the fact that there was admitted enmity between the accused and the complainant‑party, and also that there was conflict between the medical evidence and the ocular testimony, the case against the appellant was not established beyond doubt, and on this view of the case, they set aside the conviction and the sentences recorded against the accused, and allowed the appeal.
After having gone through the record of the case we find that the High Court has granted the benefit of doubt to the accused on the basis of legitimate doubts that accrue from the prosecution case itself, and there is, therefore, no valid justification for this Court to interfere.
For these 'reasons the petition is dismissed.
M . Y . H . Petition dismissed
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