KHAIRU AND Another vs The STATE

ORDER

1. MUHAMMAD HALEEM, J.-Petitioners, Khairu and Shamira, were tried along with Said, Goman and Mamman for the murder of Falak Sher at 9 p. m. On 25th of July, 1973, in the Ihata of a house in village Dad Jamlera. While the petitioners were convicted under section 302 read with section 34, P.

2. P. C. The other three were acquitted. The first petitioner was sentenced to death and to pay a fine of Rs. 200 or in default to undergo rigorous imprisonment for two months and the second to imprisonment for life and to pay a fine of Rs. 200 or in default to suffer rigorous imprisonment for two months.

3. The F.

1. R. Was lodged by Abdul Hamid, a brother-in-law of the deceased at 3 a. m. On 26th of July, 1973, at Police Station Ahmad Yar, District Sabiwal. The incident was stated to be witnessed by his two other brothers also namely, Abdul Majid and Abdul Ali. From the courtyard of the acquitted accused, Mamman, seven crime empties of 12 bore and from the lane, outside the courtyard, three crime empties of the same bore were seized. There was no previous enmity between the parties and the incident occurred over the possession of an Ihata of a Shamilat which was vacated by Khadim Hussain, a Moin, who, after locking it, had given the key to Abdul Hamid. Falak Sher and his brother-in-law, Abdul Ali. Had occupied this Ihata a day or two earlier and the petitioners and the acquitted accused wanted to eject them and it was, therefore, that they had come armed to take its forcible possession. It may here be stated that the parties are co-sharer of the Shamilat but have no relationship with each other.

4. The second petitioner was arrested on 30th of July, 1973, and from his possession his licensed gun was secured which matched with six crime empties. The first petitioner was arrested on the 31st of July, 1973, and from his possession an unlicensed gun was seized which matched with the remaining crime empties.

5. The prosecution examined Abdul Hamid, P. W. 9, Abdul Majid, P. W. 10 and Abdul Ali, P. W. 11, to furnish ocular testimony in the case. Evidence of motive was furnished by Abdul Hamid. The prosecution also led the evidence of recoveries of the guns and the matching of the crime empties with them.

6. The petitioners alleged enmity and in support of it pleaded ; firstly, that the father of Mst. Anwar, the widow of the deceased, had instituted a criminal case under section 325, P. P. C. Against Abdul Hamid and the petitioner had supported the complainant in that case ; and secondly, that Mst.

7. Anwar had an illicit liaison with Riaz, whom she married after the demise of Falak Sher, and it was Riaz who must have committed his murder to get Falak Sher out of his way. The trial Court disbelieved the part assigned to Said, Goman and Mamman that they had fired at Abdul Ali with revolvers and rifles as no injury was found on Abdul Ali with these weapons nor was any pellet recovered from the spot. On the other hand 17 pellets were found to be embedded in the piller of the Khola where Abdul Ali had taken refuge. The trial Court was further influenced by the fact that " there was no evidence of the use of these fire arms as no empty shell was secured from there.

8. Again, the trial Court was not impressed by the ocular testimony in that it disbelieved the assertion that the second petitioner was overpowered by Abdul Hamid, Abdul Majid and Sher Muhammad, as it was not, plausible to accept that they would have the temerity to approach an armed person who could have used his weapon to keep them at bay. On this view of the matter it held that the superficial injuries suffered by Abdul Hamid and Abdul Majid could as well be fabricated. While accepting x the remaining ocular account against the petitioners which found support from the motive and the corroboratory evidence of the crime weapons, it found no substantial reason to hold the participation of Said, Goman and Memman. Accordingly, the trial Court gave to them the benefit of doubt and acquitted them while convicting the petitioners.

9. On appeal and reference, the High Court maintained their convictions and confirmed the death sentence awarded to the first petitioner. The HighCourt rejected the contention that Abdul Hamid and Abdul Majid could not have witnessed as they resided two Killas away from the spot on the groundthat on hearing the gun reports they would have been able to traverse the distance having regard to the time consumed in the altercation and the subsequent firing of as many as 10 shots.

10. It was next contended before the High Court that it was a dark night and as Abdul Ali had taken refuge in the Khola, he could not have witnessed the occurrence. This contention was also repelled on the premises that the presence of a burning lantern was indicated in the F.

1. R. And, therefore, it was not difficult for Abdul Ali to identify the petitioners who had fired their weapons from the adjacent courtyard of the acquitted accused Mamman, even though, the lantern facing the 1hata of Mamman was obstructed by the wall. The High Court also took the view that even otherwise it was not B difficult for Abdul Ali to identify the known assailants from such a short distance.

11. It was next submitted that as the prosecution witnesses had lied in one essential respect namely, as to the first petitioner having been over-powered it was difficult to rely on their ipse dixit as to the culpability of the petitioners. The High Court held that the rule, falsus in uno falsus in omnibus, is no applicable for discarding the evidence of the witnesses as a whole and henceI so much of the evidence which is credible can be accepted.

12. As to the delay in lodging the F.

1. R. The High Court accepted the explanation of Abdul Ali that Abdul Hamid had gone on foot to lodge the report as no transport was available at that time of the night.

13. No grievance can be made on this score as the police station was situate at a distance of 10 miles and the delay of six hours, therefore, in the context of the above explanation cannot be regarded as of any consequence. The High Court further held that the ocular testimony could not be regarded as incredible as three other accused had been acquitted and in holding so it gave the reason that there was no corroboration against them.

14. Lastly, the High Court believed the evidence of the recoveries of the guns and their matching with the crime empties. In this behalf it rejected the admission of foot constable Zahoor Ahmad that the first petitioner was, arrested on the 26th of July, 1973, and held it to be an attempt to help this petitioner as there was unequivocal evidence to establish his arrest on 30th of July, 1973.

15. In seeking leave to appeal the learned counsel for the petitioners challeng--ed the veracity of the evidence believed by the Courts below and in particular he pressed these manifold contentions which were urged before the High E Court but were rejected on substantial grounds. As they relate to the appreciation of evidence, we are not inclined to re-assess the evidence in the absence of any legal error.

16. The learned counsel next contended that the capital punishment passed on the first petitioner should be altered to life imprisonment as the fire-arm injuries on the deceased could be the result of one shot which could equally be attributed to Shamira, whose case had been distinguished on the ground of his age. This submission also has no substance as from the number of fire-arm injuries noticed on the deceased the possibility of two shots having struck the deceased cannot be excluded.

17. In the result the petition fails and is hereby dismissed.