GHULAM SHABBIR vs BACHAL AND ANOTHER

ORDER

1. ' ASLAM RIAZ HUSAIN, J.-This petition is directed against the judgment and order dated 29th March, 1978 of the Sind High Court whereby conviction and sentence of Bachal, respondent under section 302/307/34, P. P. C. And section 13/D of the Arms Ordinance was set aside. The facts of the prosecution case are briefly as follows : ' At 6-30 p. In. On the 7th September, 1973 Abdul Razaq (deceased) and Ghulam Shabbir P. W. Were taking tea at the 'Hotel' of Ghulam Ali Burio, near the Rohri Cement Factory. Himmat Ali and Malang P. Ws were also sitting in the said 'Hotel' separately. Bachal respondent with Kaisar and two other co-accused, whose names are not mentioned in the F. I. R. Came there. Bachal was armed with a pistol while Kaisar co-accused was armed with a 12 bore S. B. Gun. One of the unnamed accused, Gabole by caste, started shouting abuses while the fourth accused started instigating the others to kill. Thereupon Bachal respondent fired his pistol and Kaiser tired his gun. The gun shot fired by Kaiser hit Abdul Razaq in the abdomen, his intestine came out and he fell down. Shabbir P. W. Wed to pick up the injured-Abdul Razaq but Kaiser fired a second shot at him which hit him on the back, right.Arm and head. The occurrence was witnessed by Ghulam and Himmat P. Ws. The motive for the offence is stated to be that about 21 years ago Mirdad Sukhani, a relative of Bachal accused/respondent, was murdered and Imam Bux, a brother of Shabbir P. W. Had been challaned in that case.

2. ' Shabbir rushed to the police station Rohri at a distance of 1/2 mile and lodged the F.1. R. At 7 p. m.

3. Shortly after the arrival of Ghulam Shabbir at the police station, some persons also brought Abdtil Razzaq to the police station. He was badly injured but was still alive. After tecording their injury statements, both the injured persons were sent to. The hospital. Ghulam Muhammad S. H. O. Went to the place of occurrence next morning. It is pertinent to note that according to the S. H. O. No blood was visible at the spot nor was any incriminating articles such as crime empties or pellet marks on any wall etc. Found there. The S. H. O. Recorded the statement of Malang P. W. Under section 161, Cr. P. C. He then went to the hospital and recorded the statement of Abdul Razzaq who was still alive. Abdul Razzaq, however, died in the hospital on 12th September, 1973. As such the above mentioned statements were subsequently used as his dying declaration. Abdul Sattar was arrested by S. H. O. Bahadur Husain Zaidi on 12th September, 1973 but the remaining three persons had absconded and could not be arrested. As such Bachal respondent, alone was tried. The post- mortem examination of Abdul Razzaq revealed three gunshot injuries on his abdomen and the medical examination of Ghulam Shabbir P. W. Revealed three fire arm injuries on his person which were simple in nature. At the trial, the prosecution relied on the ocular testimony of Ghulam Shabbir, Himmat Ali and Malang ; the dying declaration of Abdul Razzaq, deceased ; the evidence of motive and the medical evidence.

4. ' The accused, when examined at the trial, denied his guilt and stated that he had been falsely involved in the case due to enmity as he was a witness against Imam Bux the brother of Ghulam Shabbir, complainant. He stated that Abdul Razzaq deceased was involved in many other cases and had a number of enemies. The learned trial Judge held that the prosecution had failed to establish the motive. He, however, relied on the statements of eye-witnesses and the dying declaration, and convicted Bachal and sentenced him to death under section 302/34 as well as a fine of Rs, 1000 or 3 years R. I under section 302/34 he sentenced the petitioner to 7 years R. I and fine of Rs, 200 or in default, further R. I for one month. He also sentenced him to 1 year R. I under section 13-D of the Arms Ordinance.

5. ' Bachal, respondent, filed an appeal against his conviction and sentence before the High Court.

6. The learned State counsel frankly admitted before the High Court that the alleged dying declaration, apart from being doubtful, was not legally admissible and as such he did not rely on it.

7. The High Court was thus left only with the statements of the three eye-witnesses which it did not feel safe to rely upon in view of the exaggerations in it. As such it accepted the appeal and set aside the respondent's conviction and sentence.

8. ' Ghulam Shabbir, complainant has filed the present petition against the acquittal of Bachal. We have heard the learned counsel for the petitioner and gone through the impugned judgment as well as the evidence. Tic crux of the arguments of the learned counsel for the petitioner before us, was that the judgment of acquittal is against the weight of evidence on the record and as such the entire evidence requires re-appraisal by this Court. We are not inclined to agree with this contention.

9. ' No doubt Shabbir P. W. Must have been present at the spot because he sustained fire arm injuries but his admitted enmity with the accused/ respondent coupled with the exaggerations in his tentimony referred to by the High Court, render his testimony extremely doubtful. The learned High Court had also rightly observed that the statements of Himmat and Malang, both of whom reside in a village about 2 miles away from the scene of occurrence is also doubtful, especially in view of the fact tha Malang P. W. Is a relative of Shabbir complainant while Himmat P. W. Is admittedly the former's friend. In these circumstances, we are inclined to agres with the observations of the High Court that it was too much of a coincident that these two witnesses should have come all the was from their village to be present at the spot at the time of occurrence. I is also surprising that no witness of the locality not-even the owner of the `hotel' in question should have been produced to support the prosecution case. Moreover, there is no independent evidence whatsoever to corroborate the testimony of the three eye-witnesses. We feel that the learned High Court has recorded a very elaborate and well considered judgment and was justified in acquitting the respondent. We do not consider this to be a fit case for re-appraisal of evidence. This petition it, consequently, dismissed as being without any merit.