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Criminal Petition No. K‑45 of 1981, decided on 13th March, 1985.

(On appeal from the judgment of the High Court of Sind, dated 24‑3‑1981 in Criminal Appeal No. 281 of 1979).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appreciation of evidence‑‑Plea that petitioners conviction was based on same evidence which was disbelieved in respect of co‑accused, not sustained‑‑Guilt of petitioners being based on ocular testimony of persons who were natural witnesses of scene of crime, Supreme Court declined to interfere‑‑Petition for leave to appeal dismissed.

Muhammad Hayat Junejo, Senior Advocate Supreme Court with Noor Ahmed Noori, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 13th March, 1982.

Facts of this case briefly stated are that the two petitioners Afghan and Walidino alias Bakhshal were tried alongwith two others, namely, Mithal and Muhammad Hashim under sections 302/34 and 120‑B, Pakistan Penal Code for having caused the murder of Mst. Azmat, wife of Deedar Ali, brother of Walidino petitioner, who lodged the report of the crime. It is said that Mst. Azmat deceased who was married to Deedar Ali about six years earlier and had two children, was declared as a Kari with Maiho Bozdar. On 5‑2‑1977 Deedar Ali took his wife and his brother‑in‑law Sikandar to the house of his relative, Ghulam Farooq, to congratulate him on the birth of a son. They stayed there for the night, and at Assur time Deedar Ali and Sikandar woke up on the barking of dogs. According to the version of the incident recorded by Deedar Ali in the F.I.R. the two petitioners Afghan, armed with a single barrel gun and Walidino with a pistol, and Mithal co‑accused carrying a hatchet and a torch came there. Walidino declared that Mst. Azmat was a Kari and they would not spare her. Thereupon Mithal flashed his torch upon which Afghan fired his gun and Walidino his pistol with the result that the victim died on the spot. In the meantime, the neighbours Leemon and Dhani Bux came running and they also saw the assailants who left the scene soon thereafter. Afterwards Deedar Ali went to the Ratodero Police Station at a distance of 10 miles and lodged F . I . R . at 10 a.m. on the same day. In the F.I.R. the fourth accused Muhammad Hashim was named as a conspirator of the offence.

2. As the trial, prosecution sought to prove the case against the accused by the ocular testimony of P.Ws. Deedar Ali and Sikandar and corroborative version of P.W. Leemon and the recovery of the weapons of offence from the petitioners and also the motive.

3. Learned Additional Sessions Judge, Larkana who tried the case did not place reliance on the circumstantial evidence as to the recoveries of the weapons from the accused, but relying on the ocluar testimony and corroborative evidence held the two petitioners guilty under section 302/34, P.P.C. and sentenced them to life imprisonment, each, and to pay a fine of Rs. 3,000; in default to suffer one year's R.I. more. Learned trial Judge however acquitted the co‑accused Mithal and Muhammad Hashim.

4. The two convicts filed a joint appeal in High Court of Sind which was however dismissed by the Chief Justice of Sind High Court as on reappraisal of the prosecution evidence he upheld the finding of guilt recorded against the convicts.

5. Petitioners now seek leave to appeal from the judgment of the High Court, and Mr. Muhammad Hayat Junejo, learned counsel appearing in support of the petition submits that the learned trial Judge as well as the learned Chief Justice have erred in relying upon the same prosecution evidence which has been disbelieved in respect of the co-accused. According to learned counsel, the High Court has also erred in justifying the doubts in the prosecution case by resorting to conjectures and surmises which are not based on any material on record.

6. After having gone through the record before us, we are clearly of the view that the learned Chief Justice of the High Court of Sind has taken a very cogent and proper view of the prosecution case in that he has observed that it would seem that Mithal could, on this evidence, beheld to have common intention. However, the State has filed no appeal to challenge the acquittal of Mithal, nor has the complainant taken any proceedings. "For the mere fact of a person having been wrongly acquitted, it cannot be said that such other person, who should appear to have been rightly convicted should also be acquitted. On the other hand, the view taken by the trial Court is not on the assumption that evidence against Mithal was false. The trial Judge, out of abundant caution, acquitted Mithal on the ground that he had caused no injury. This argument has not impressed me. It is not the case that evidence against Mithal has been disbelieved."

We find that the guilt of the petitioner has been based on the ocular testimony of the persons who are natural witnesses on the scene, of crime. No valid justification for interference by this Court is made out. The petition is, therefore, dismissed.

M.I, Petition dismissed.

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