THE STATE vs GHULAM RASOOL

' NASIR-UL-MULK, J.--- The State has through this petition for leave to appeal assailed the judgment and order of the Lahore High Court, Lahore, dated 20-5-2002 whereby a Division Bench allowed the appeals of the respondent, Ghulam Rasool and his co-accused Muhammad Nawaz and set aside their conviction and sentences recorded by the Judge Special Court, Gujranwala, under sections 396, 457, 148 and 412, P.P.C. Ghulam Rasool was awarded sentence of death and Muhammad Nawaz, imprisonment for life under section 396, P.P.C. And that the remaining offences each of them was awarded 14 years, 3 years and life imprisonment in that order. Along with these substantial sentences, fines were also imposed upon the convicts for each of the offences.

2. The case in which the respondent was charged and tried, was registered on 19-7-1999, on the complaint of Mst. Hassan Bibi, who reported at the Police station, Khutiala Sheikhan, District Mandi Bahauddin, that on that day at 2-00 a.m. Three unknown persons committed dacoity in her house and in the process fired at her husband Abdul Ghafoor, which eventually resulted in his death at the hospital and the complainant also received injury from blunt weapon. It is alleged that the dacoits took away with them some jewellery and cash. Besides, the two accused, Ghulam Rasool and Muhammad Nawaz, who stood trial, three other persons namely, Muhammad Nazir Mashari and Muhammad Sarwar, were also nominated as accused, but they were eventually declared proclaimed offenders and did not face trial.

3. The prosecution case was based on the ocular testimony of Mst. Hassan Bibi, the complainant, and her son-in-law, Muhammad Akram, who lives at a distance of more than 25 miles from the house of the complainant. He explained his presence in the house on that fateful night by maintaining that he had come to the village of his in-laws to buy a Buffalo. Further support was sought from recovery of two cameras, a V.C.P., two magazines of pin pistol and some jewellery.

There is also evidence of Aziz Ahmed (P.W.10) and Ghulam Farid (P.W.11), who claimed that they had seen and identified the two accused carry the looted articles soon after the incident and had informed the complainant about it.

4. Ch. Munir Sadiq, Advocate Supreme Court appearing for the State, submitted that although there was no identification parade held in order to enable the complainant to identify the accused the complainant did recognize them in Court, therefore, the High Court ought not to have treated this omission as a weakness in the prosecution case. The learned counsel contended that the complainant's statement was duly corroborated by the testimony of Muhammad Akram, whose presence in the house of the complainant was not unnatural, being her son-in-law.

5. After hearing the arguments of the learned counsel for the State and upon perusing the impugned judgment, we found ourselves in agreement with the conclusion drawn by the learned Judges in the High Court. Although the complainant had stated in the F.I.R. That the dacoits were unknown to her, yet the accused were not put to test identification parade. The complainant had disclosed in cross-examination that the accused were shown to her at the police station 4/5 times.

On that score her identification of the accused at the trial would be of no relevance. Though the Investigating Officer, Sadiq Ali, alleged that the complainant had made a supplementary statement, neither the same was brought on record at trial nor this claim found support from the testimony of the complainant. The testimony of Muhammad Akram, son-in-law of the complainant was also rightly discarded by the High Court on the grounds, inter alia, that he was a chance witness as his claim of visit to the in-laws for purchase of buffalo remained unsubstantiated. His statement that the accused were known to him before the incident cannot be true as had that been the case, their names should have been disclosed to the complainant, who would have mentioned them in her report to the police. We also agree with the findings of the High Court that recovery of the alleged looted articles is of no avail to the prosecution that it was made in violation of provision of section 103, Cr.P.C. And that C there was no evidence that the same belonged to the complainant or her husband.

6. In the light of the above, we do not find that a case for leave to file appeal has been made out, the petition is therefore, dismissed.