GHULAM ABBAS Versus STATE
This matter concerns two criminal petitions for leave to appeal arising from a trial court judgment regarding a double murder and murderous assault. The trial court convicted six individuals, sentencing them to death and imprisonment, while acquitting others. The High Court subsequently acquitted two of the six convicted individuals but maintained the convictions of the remaining four, reducing the death sentences of three to life imprisonment while confirming the death sentence of the fourth. The petitioners challenged these findings, arguing that the High Court failed to properly appreciate the evidence, particularly regarding the parity of roles among the accused and the reliance on solitary ocular testimony. The complainant also challenged the acquittal of the two individuals by the High Court, asserting the evidence against them was identical to that of the convicted accused. Upon review, the Supreme Court found that the contentions raised by both sides warranted further examination. Consequently, the Court granted leave to appeal to determine whether the High Court adhered to established principles for the appreciation of evidence in criminal cases.
- Does the recovery of firearms from multiple accused, without matching ballistics, constitute sufficient corroboration of ocular testimony?
- Can a court maintain the conviction of some co-accused while acquitting others when the evidence against all is identical?
- Is it appropriate to maintain a death sentence for one accused while reducing the sentences of co-accused to life imprisonment when the roles attributed to them are substantially the same?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 301, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
ASLAM RIAZ HUSSAIN, J.‑‑ This order will dispose of:‑‑
(i) Criminal Petition No. 436 of 1985 filed by Ghulam Abbas, Sher Abbas, Ibrahim and Ghulam Shabbir, against their conviction and sentences: and
(ii) Criminal Petition No. 459 of 1985 filed by Muhammad Ashraf Khan complainant against the acquittal of some of the respondents of the charge under section 302, P.P.C. and for the enhancement of sentences of the remaining respondents.
3. Facts giving rise to the petition are, briefly, that 10 persons namely, Ghulam Abbas. Sher Abbas, Ghulam Shabbir, Ibrahim, Munawar Hussain (petitioners in Criminal Petition No. 436 of 1985), Munawar Hussain, Sibtain Shah, Abid Hussain, Jehan, Ghulam Hussain and Ahmad (respondents in Criminal Petition No. 459 of 1985, were tried for the double murder of Muhammad Afzal Khan and Sardar Muhammad and making murderous assault on some of the P.Ws. The learned trial Court acquitted the last mentioned four accused while it convicted 6 of them namely Ghulam Abbas, Sher Abbas, Ibrahim, Ghulam Shabbir, Sibtain Shah and Munawar Hussan, who were sentenced as follows:‑
"Each to the two years' R.I. and a fine of Rs.300 or in default three months' further R.I. under section 148, P.P.C.
Each to death and fine of Rs.2,000 or two years' R.I. under section 302/149, P.P.C. for the murder of Muhammad Afzal Khan deceased. Fine if realised shall be paid to the heirs of Muhammad Afzal Khan deceased as compensation.
Death and a fine of Rs.2,000 or in default two years' R.I. under section 302/149, P.P.C., read with section 301, P.P.C. for the murder of Sardar Muhammad deceased. The fine if realized shall be paid to the heirs of Sardar Muhammad deceased. Four years' R.I. and a fine of Rs.500 or in default six months' R.I. under section 307/149, P.P.C. The fine if realised shall be paid to the P.Ws. in equal shares as compensation."
They filed an appeal before the High Court, which, vide the impugned judgment, dated 29‑9‑1985, acquitted Sibtain Shah and Munawar Hussain but maintained the conviction under section 302/34, P.P.C., of the remaining four accused, namely, Ghulam Abbas, Sher Abbas and Ghulam Shabbir. All of them were however, acquitted of the charges under sections 307/149, P.P.C. and 148, P.P.C.
Death of Ghulam Abbas was confirmed but the sentences of the remaining 3 accused were reduced to imprisonment for life.
4. In support of its case the prosecution relied on the ocular testimony of Abdul Aziz Khan (P.W. 11), Muhammad Sher (P.W. 12) and Ghulam Ahmad (P.W. 13); recovery of the rifles found from Ghulam Abbas, Ghulam Shabbir and guns found from the remaining four accused who were convicted by the trial Court could not be matched with any empties. It also relied on the medical evidence and the motive.
5. The learned counsel for the complainant submitted that the Courts below had believed Muhammad Sher (P.W. 12) as he was an independent person who is not related to either party and that his testimony is corroborated by the recovery of rifles from six convict‑accused as well as motive and the medical evidence. As such the accused were rightly convicted.
6. Counsel for the accused‑petitioners submitted on the other hand that the High Court had erred in confirming the death sentence of Ghulam Abbas because the role attributed to him is the same as that of Sher Abbas and Ghulam Shabbir, whose sentences were reduced to imprisonment for life. He carried us through the relevant portion of the narration of facts to demonstrate that‑the only special feature in part alleged to have been played by Ghulam Abbas was that he fired the first shot.
He submitted further that the prosecution case rests on the solitary statement of Muhammad Sher (P.W. 12), which cannot be said to have been corroborated by the mere fact of recovery of fire‑arms from them. Nor can the injuries found on the persons of the two deceased said to constitute corroboratory evidence qua any particular accused.
7. As regards Criminal Petition No. 459 of 1985, the counsel for the petitioners in that petition submitted that the High Court had erred in acquitting Munawar Hussain and Sibtain Shah, because the evidence against them is the same on the basis of which the High Court maintained the conviction of the remaining four accused.
8.After going through the impugned judgment we feel that the contentions raised by the learned counsel in each case have some force and need further consideration. Leave is, therefore, granted to consider whether the High Court had followed the well‑established principles for appreciation of evidence in criminal cases.
9. Bailable warrants shall issue against Munawar Hussain and Sibtain Shah, respondents in Criminal Petition No. 459 of 1985, in the sum of Rs.20,000 with two sureties each in the like amount, to the satisfaction of Assistant Commissioner Mianwali
M.I. Leave granted.