FARZAND ALI SHAH vs The STATE
This petition for leave to appeal arose from a criminal conviction where the petitioner, Farzand Ali Shah, was convicted by the Additional Sessions Judge, Faisalabad, under Section 302/34 of the Pakistan Penal Code 1860 for murder and Section 452 of the Pakistan Penal Code 1860 for house trespass, receiving a death sentence. The Lahore High Court maintained the petitioner's conviction while acquitting a co-accused. The core legal question was whether the ocular testimony of interested witnesses, closely related to the deceased, was sufficient to sustain the conviction without independent corroboration, and whether the acquittal of a co-accused necessitated the acquittal of the petitioner. The Supreme Court held that the ocular testimony of natural inmates of the house was credible and sufficient, noting that the specific act of murder was consistently attributed solely to the petitioner. The Court affirmed that the acquittal of a co-accused based on distinct evidence (Lalkara and indiscriminate firing) does not automatically entitle the petitioner to the same benefit of doubt. The petition was dismissed, upholding the conviction.
- Does the acquittal of a co-accused based on distinct evidence automatically entitle the remaining accused to the same benefit of doubt?
- Is the ocular testimony of interested witnesses who are natural inmates of the house sufficient to sustain a conviction without independent corroboration?
- Can the Supreme Court refuse to re-appraise evidence when the High Court has already carefully considered and accepted the ocular testimony?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
ORDER
1. JAVID IQBAL, JJ.-- This is a petition for leave to appeal filed by Farzand A.I Shah petitioner who along with Dost A.I Shah wasconvicted and sentenced by the Additional Sessions Judge Faisalabadunder section 302/34 of the Pakistan Penal Code to death plus fine. Both of them were also convicted under section 452, P.P.C. And sentenced to 2 years R.I. Each plus fine. The third co- accused namely Sikandar Shah died before trial. On appeal a Division Bench of the Lahore High Court, Lahore acquitted Dost A.I Shah but maintained the convictions and sentences awarded to the petitioner and thus dismissed his appeal.
2. The decease in the instant case is Ahmad A.I Shah. The occurrence took place 3 a.m. On 4th April, 1978 in Chak No. 399/GB District Faisalabad The matter was reported to the police in the form of an F.I.R. Lodged by Ejaz Hussain Shah P.W.9 son of the deceased at 4-10 am on the same day and it was recorded by Umar Hayat Khan Sub-Inspect r at Police Station Tandlianwala. The prosecution has produced two eye-witnesses of the occurrence namely Ejaz Hussain Shah P.W.9 and Barkat A.I Shah P.W.10 husband of the sister of the deceased. The prosecution version is that at the fateful time the two eye-witnesses whop were present in the house along with the deceased heard sound of footsteps on the roof. They woke up and came out of their room and saw the three assailants two armed with rifles and the present petitioner with .12 bore gun. They identified the assailants as the petitioner acquitted co-accused and Sikandar Shah since dead. Within their sight it they broke the pane of the door of the next room where the deceased was asleep. It is stated that the present petitioner fired a gun shot which hit the deceased. Thereupon the accused broke open the shutter of the window and fired 20/30 shots at them. However, the two eye-witnesses took shelter in the corners of the room and were not hit. The prosecution case further is that Akbar A.I Shah P.W.11 and Nasir P.W/.12 who were passersby saw the members of the accused party when they were running away from the scene of crime. The motive for the crime is that the deceased was in the habit of lodging F.I.Rs. Against the members of the accused party in different police stations. The petitioner was arrested on 22nd April, 1978. The recoveries in this case are not of any consequence but reliance has been placed on the ocular testimony considering the two eye-witnesses as natural inmates of he house and their testimony being further supported by the medical evidence and the motive.
3. The crux of the arguments of the learned counsel for the petitioner before us is that the ocular testimony came forth from interested witnesses as they were closely related to the deceased and corroboration of their testimony was necessary which was not forthcoming in the present case.
4. This aspect of the case had been carefully attended to by the Division Bench of the Lahore High Court, Lahore which arrived at the conclusion that so far as the part ascribed to the present petitioner was concerned, the ocular testimony should be believed as it came forth from natural inmates of the house. Learned counsel also argued that the ocular testimony which had been believed in the case of the petitioner had not been relied upon in respect of Dost A.I Shah acquitted co-accused. But correct reasons have been advanced for giving the benefit of doubt to Dost A.I Shah and acquitting him.1 According to the ocular testimony only Lalkara was attributed to the acquitted co-accused and that subsequently he was stated to have indulged in indiscriminate firing at the room in which the two eye-witnesses had taken shelter and they were not hit. But so far as the deceased is concerned the part of murdering him was clearly and consistently ascribed by the eye-witnesses only to the present petitioner. Thus if Dost A.I Shah was given the benefit of doubt and acquitted it was only due to these reasons. We have carefully considered the arguments of the learned counsel but in our considered opinion no case is made out for re- appraisal of evidence in this case.
5. The result is that this petition is dismissed.