MUMTAZ Alias KUNDAL vs The STATE
This criminal appeal arises from the conviction of the appellant, Mumtaz alias Kundal, who was tried alongside six co-accused for the murder of two individuals. The trial court convicted the appellant under sections 148, 302, and 307 read with section 149 of the Pakistan Penal Code 1860, sentencing him to various terms of imprisonment. While the co-accused appealed their convictions to the Supreme Court and were subsequently acquitted on the grounds that the ocular testimony regarding their identity and participation was unreliable and contradictory to medical evidence, the appellant did not initially seek leave to appeal and remained incarcerated. The core legal question before the Court was whether the benefit of acquittal granted to co-accused persons, whose cases were based on the same unreliable evidence, should be extended to a non-appealing convict to ensure complete justice. The Supreme Court held that since the evidence against all accused was identical and had been found to be in a state of serious doubt, the appellant was entitled to the same relief. The Court laid down the principle that in the interest of complete justice, the benefit of an acquittal in a joint criminal trial should be extended to a non-appealing co-accused when the evidence against them is identical to that of the acquitted co-accused.
- Can the benefit of an acquittal granted to co-accused persons be extended to a non-appealing convict in a joint criminal trial?
- Does the Supreme Court have the authority to acquit a non-appealing convict when the evidence against them is identical to that of acquitted co-accused?
- Section 148, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
1. MUHAMMAD HALEEM, C.J.--The appellant was tried alongwith six others, namely, (1) Khushi Asif, (2)
2. Basharat Ali Shah, (3) Rehmat Masih, (4) Sardar Yousaf, (5) Azmat Pervaiz and (6) Keemti Yousaf, for the murder of Salamat Masih and Mst. Sardaran at 9 p.m. On the 24th August, 1973, convicted under sections 148, 302 and 307 read with section 149 of the Pakistan Penal Code, and sentenced to 2 years' R.I. 3 years' R.I. And imprisonment for life, respectively and also to pay fine.
3. On appeal the High Court upheld the convictions and sentences. The appellant however did not seek leave to appeal whereas those whose convictions and sentences were maintained filed to separate petitions for gave to appeal and leave was granted. By judgment dated the 4th July 1981 in Criminal Appeals Nos. 37 and 38 of 1978 this Court acquitted the others holding that it was not possible to accept the ocular testimony as to the identity of the participants nor from it to fix their individual participation. There was also variation as to the nature of injuries some of which were found to have been caused with a blunt weapons although the prosecution case was that all of them were armed with fire arms and had fired. There were also other infirmities which seriously detracted from the truthfulness of the case. This Court in its ultimate analysis held the evidence to be in a state of serious doubt. Accordingly all of them were acquitted but as the case of Mumtaz was not before the Court he continued to undergo the sentence imposed by the trial Court.
4. In such like case, namely, Muhammad Aslam and others v. State 1972 SCMR 194 benefit was extended to the absconding appellant whose case was not separated but he was also acquitted in order to do~ complete justice in the case.
5. Accordingly we would allow the appeal and acquit him.
6. He shall be released forthwith unless he is required in any other case.