HUSSAIN SHAH Versus FAIZ MUHAMMAD

ORDER

1. USMAN ALI SHAH, J.‑‑ This petition for leave to appeal has arisen from the judgment and order dated 16‑11‑1981, passed by the Lahore High Court, Circuit Bench, Bahawalpur, whereby Cr.A. No.123 of 1979 of the respondents Nos.l‑4 against the judgment dated 9‑12‑1979 of the Additional Sessions Judge, Bahawalpur, convicting them under section 302/34, P.P.C. and sentenced respondent No.l to death, respondents Nos.2‑4 to life imprisonment. Fine of Rs.5,000 each, was also imposed upon them or in default to undergo further R.I. for 1 year each and fine if realized, half of which shall be given to the heirs of the deceased as compensation, was accepted by the impugned judgment.

2. According to the F.I.R. brief facts of the case are stated to be that 11 years prior to the occurrence Dad Ali father of Faiz Muhammad, respondent No.l was murdered. Respondent No.l suspected the hand of Bagh Ali Shah (deceased) in the said murder. "Panchayat" Nwas convened and the police investigation revealed that Bagh Ali Shah (deceased) was innocent in that case. Respondent No.l and his relatives were, however, still of the view that the deceased was the real murderer of Dad Ali, On 25‑8‑1976 at 3.00 a.m. respondents No. 1‑4 went to the Dera of Bagh Ali Shah, where he was asleep, for taking revenge of the suspected murder of Dad Ali. Faiz Muhammad. Sher Muhammad and Manzoor Ahmed were armed with guns whereas Farid alias Fareedi was armed with hatchet. Near Bagh Ali Shah, Alawal, Muhammad Shaft, Zafar Shah and Khurshid were also sleeping on the cots. Alawal (PW.9) who got up to urinate, saw Farid accused armed with a hatchet standing by his cot and that of the witnesses while the other three accused were standing on the two sides of the cot of Bagh Ali Shah deceased. Alawal (PW.9) raised alarm which awakened the other witnesses. Within their sight, respondent No.1 fired at the back of Bagh Ali Shah with his gun and respondents Nos.2 and 3 also fired once each at Bagh Ali Shah. The deceased was hit on his back by the first shot. At the report of the gun shots Hasan Shah (PW.7) son of the deceased and Ulfat Hussain Shah (PW.13) son‑in‑law of the deceased came to the Dera of the deceased. They were in possession of torches and identified all the four accused with the help of the torches in the dark night. A generator at the Dera of the deceased was on, and the bulbs were lit so Alawal (PW.9), Muhammad Shafi (PW.12), Khurshid and Zafar also identified the respondents Nos.l‑4 in the electric light. After commission of the crime the respondents Nos.l‑4 decamped from the spot. Bagh Ali Shah expired instantaneously.

3. On 25‑8‑1976 F.I.R. Ex.PG was lodged by Hasan Shah (PW.7) son of the deceased, in the police station Takht Mahal, Distt. Bahawal nagar, which was recorded by S.I. Barkhurdar Ahmed (PW.16). The same day S.I. Barkhurdar (PW.16) went to the spot. He prepared injury statement Ex. PK and inquest report Ex.PL. He found the bed‑cover under the dead body stained with blood. He cut a piece of it and sealed it into a parcel vide memo Ex.PB. The S.I. despatched the dead body to the hospital for post‑mortem examination through Faiz Muhammad .F.C. (PW.10). The S.I. prepared site plan Ex.PA through Bashir Ahmad Patwari.

4. Dr. Capt. Abdul Majeed, Senior Medical Officer (PW.8) conducted the autopsy on the dead body of the deceased and fount 9 injuries on the dead body. According to the Doctor all the injuries were caused by fire‑arm weapon. He recovered 2 pellets and wad under injury No.1. In the opinion of the Doctor the death of the deceased was instantaneous. The post‑mortem examination was conducted within 12 hours after receipt of the injuries. According to the Doctor the death of the deceased occurred due to shock and haemorrhage caused by injuries Nos.l and 2 which were sufficient to cause death in the ordinary course of nature.

5. All the accused were arrested by S.I. Muhammad Tufail (no examined) on 1‑9‑1976. Manzoor Ahmad respondent No.2 while in police custody led to the recovery of .12 bore shotgun Ex.P.7 from ceiling of the room of his tube‑well on 9‑9‑1976, vide memo Ex.PD. Sher Muhammad respondent No.3 while in custody, led to the recovery of .12 bore shotgun P.8 from an earthern been lying at his house in village Jodheka on 9‑9‑76 vide memo Ex.PE. On 14‑9‑76 Faiz Muhammad respondent No.1 under custody led to the recovery of an unlicence, 12 bore shotgun P.9 from between the wall and ceiling of Chappar at his house in village Jodheka vide memo Ex.PF.

6. After completion of the usual formalities, the accused were challaned to the Court of Additional Sessions Judge Bahawalnagar to stand their trial for the murder of Bagh Ali Shah (deceased). In consequence of the trial the Additional Sessions Judge found the respondents Nos.l‑4 guilty of the offence and convicted them under section 302/34, P.P.C. and sentenced respondent No.1 to death and respondents Nos. 2‑4 to life imprisonment, for the murder of Bagh Ali Shah (deceased). Fine of Rs.5,000 was also imposed upon each of the respondents Nos.l‑4 or in default to undergo each one of them, further R.I. for one year. Half of the fines, if realized shall be paid to the heirs of the deceased. Respondents Nos.l‑4 challenged their convictions and sentences before the Lahore High Court, Circuit Bench, Bahawalpur and a learned Division Bench which heard the appeal, accepted the same and acquitted the respondents Nos. l‑4 of the charges framed against them under section 302/34, P.P.C.; hence this petition for leave to appeal.

7. We have heard the learned counsel for the petitioner and gone through the judgment of the Courts below. We do not see any merit in this petition which deserves dismissal straightaway. The learned trial judge based the convictions of respondents Nos.l‑4 on the basis of ocular testimony of Alawal (PW.9) and Muhammad Shafi (PW.12), recovery of weapons of offence, the testimony of Hassan Shah (PW.7) and Ulfat Hussain Shah (PW .13), the medical evidence and identification of the respondents Nos.l‑4 in the electric light as well as torch light. The evidence of motive was also taken to be a piece of corrobora tive evidence. Muhammad Shafii (PW.12), lives at a distance of 8/9 miles from the place of occurrence and it was his first visit to the village Khalia Shah but he has not stated ,that how and for what specific purpose he had come to Zafar Shah son of the deceased. If he was so intimate to Zafar Shah, he would have frequent visits to the said village to see him and not for the first time, therefore, his stay with Zafar Shah is very doubtful. Hassan Shah (PW.7) and Ulfat Hussain Shah (PW.13) in their statements said that they proceeded towards the Dera of the deceased after hearing the report of the gun shots and identified the respondents Nos.l‑4 in the light of the torches whereas Alawal (PW.9), Khurshid, lafar and Muhammad Shafi have said in their statements that a generator was on and they saw the respondents Nos.1‑4 in the electric light. There is a contradiction in the statements of these witnesses because torch light does not work in the availability of electric light. Moreover, Hasan Shah and Ulfat Hussain Shah on the report of the fire shots came from their houses towards the Dera of Bagh Ali Shah deceased which might have taken some time to reach the spot when the accused after completion of their designs, must have decamped from the scene of occurrence in the darkness of the night and there is little chance for these witnesses to identify the accused. This also casts doubt on the statements of these witnesses. Nothing was recovered from respondent No.4 and the recovery of guns from respondents Nos. l‑3 does not have any corroborative value as these weapons were not sent to the Ballistic Expert for report. In the absence of such report mere recovery of guns does not connect the respondents with the alleged offence. The F .I. R. in this case seems to be recorded after thought. The eye‑witnesses in this case are Alawal (PW.9) and Muhammad Shafi (PW .12) . Alawal is the tenant of the deceased and is greatly under the influence of the complainant Hasan Shah son of the deceased. Muhammad Shafi is stated to be a friend of Zafar Shah who is a stranger and could not account for the purpose of his visit to the said village. Zafar Shah and Khurshid nephew of the deceased (died two years prior to the trial) were the eye‑witnesses of the occurrence but Zaffar Shah, the eye‑witness who would have proved the presence of Muhammad Shafi (PW.12) was not produced by the prosecution which weakened the prosecution case and created a doubt?. The motive for the offence is very weak because the deceased who was suspected to be the murderer of Dad Ali was declared innocent by the 'Panchayat' as well as Police investigation.

8. In our opinion, the ocular account of the eye‑witnesses, medical evidence and the motive for the offence suffered from material improvements and contradictions which the learned Judges of the Division Bench of the High Court have thoroughly sifted. We have examined the judgment of the High Court and thus we find ourselves in agreement with the view taken by the learned Judges of the High Court. There are satisfactory reasons to discard the ocular evidence and we are, therefore, of the view that the learned Judges of the High Court have rightly acquitted respondents Nos.1‑4. We do not see any reason to interfere with their impugned finding.

9. The result is that this petition has no force. It is accordingly dismissed and leave refused.

10. M.I./H‑39/S Petition dismissed.