MUHAMMAD SHAFI AND 4 Others vs The STATE

ORDER

1. ANWARUL HAQ, J.-The five petitioners were tried, along with five others, by the learned Sessions Judge at Sialkot on charges falling under sections 148, 301, 307, 342, 436 and 440, P. P. C. Read with section 149 thereof. Petitioners Nos. 1 to 4 and a co-accused by the name of Bashir were convicted, while petitioner No. 5, viz., Ghulam Haider and four others were acquitted. Petitioners Nos. 1 and 4 as well as Bashir were sentenced to death, whereas petitioners Nos. 2 and 3 were sentenced to transportation for life for the offence of murder. The convicted persons were also awarded varying sentences of imprisonment on the other counts.

2. The State did not appeal against the acquittal of five of the accused, but the private complainant filed a revision petition in the High Court for setting aside the acquittal, and also for the enhancement of the sentence of transportation for life imposed on petitioners Nos. 2 and 3. The convicted persons appealed against their convictions and sentences, and the case also came up before the High Court for confirmation of the death sentences imposed upon petitioners Nos. 1 and 4 and their co-accused Bashir. All these matters have been disposed of by a Division Bench of the Lahore High Court by its judgment dated the 28th of May 1973. The High Court has confirmed the sentence of death imposed on petitioners, Shall and Feroz, but has acquitted Bashir of all the charges. While maintaining the conviction of petitioners Nos. 2 and 3 for rte offence of murder, the High Court has refused to enhance their sentence at the instance of the complainant. The convictions and sentences recorded against the first four petitioners on the other counts have also been maintained. Finally, the High Court has directed that petitioner Ghulam Haider, who had been acquitted by the trial Court, be retried on all the charges.

3. The occurrence tools place on the 23rd of August 1969 at Peshiwela (between 2 to 3 p in ) in and near the shop of Fateh A.I (P. W. 10), situate opposite Sohdara Railway Station. Nazar Hussain died at the spot, while his brother Manzoor Hussain (P. W. 11) was taken to the Civil Hospital at Wazirabad, where his dying statement Exh. P. J. Was recorded by the Naib--Tehsildar.

4. At the trial, the prosecution case was supported by the ocular testimony of injured Manzoor Hussain, his mother Mst. Sardar Bibi (P. W. 12) and his sister Mst. Mukhtar (P. W. l3). Corroboration was sought to be provided by the recovery of crime empties, medical evidence as to the nature of the injuries and the burnt condition of the shop of Fateh A.I (P. W.) where the deceased and his brother Manzoor Hussain (P. W.) were cornered by the assailants.

5. The learned trial Judge acquitted the petitioner, Ghulam Haider, as well as the accused Abdul Majid, Boota and Sardar mainly on the ground that they had been found innocent during the investigation of the case. He acquitted Sharif for the reason that he had not been named by Manzoor Hussain in his statement recorded by the Naib-Tehsildar. The High Court found that these reasons were not satisfactory, but it did not consider it expedient to order the retrial of Abdul Majid, Boota, Sardar and Mohammad Sharif. However, it made an exception in the case of Ghulam Haider on the ground that he was sole accused said to be armed with a pistol, and empties of '32 bore revolver were foundthe spot, but the learned trial Judge had ignored the corroborative value of this piece of evidence.

6. The convict Bashir was acquitted by the High Court on the ground that he was entitled to the benefit of doubt in view of the fact that he was not mentioned in the F. I. R. Or in the dying statement as one of the persons who had fired at the deceased or Manzoor Hussain (P. W.). The High Court also took the view that the injuries found on the deceased and his brother Manzoer Hussain could well be caused by two gunmen.

7. Leave to appeal is sought on the ground that the acquittal of five of the accused persons involved in this case clearly reflects on the credibility of the evidence led by the prosecution, and it would be highly unsafe to rely on the evidence of witnesses who have been found to be false as regards 5 persons mentioned by them as assailants. It is further submitted that the criterion adopted by the High Court for acquitting Bashir, who had been sentenced to death by the trial Court, has not been uniformly applied inas--much as the conviction of petitioners Ghulam Rasool and Manzoor Hussain has been maintained although they were also not assigned any specific part in the dying statement made by witness Manzoor Hussain.

8. As regards the retrial of petitioner Ghulam Haider, the learned counsel submits that the order made by the High Court in this regard is not in con--sonance with the principles enunciated In re: Sh. Abdul Karim, Advocate (PLD 1950 Lah. 439), Khairdi Khan v. Crown (PLD 1953 FC 223) and Sultan Khan v. Taj Din (PLD 1963 SC 97). He further submits that in any case the evidence of recovery of crime empties of .32 bore from the spot could not suffice for recording a conviction against Ghulam Haider and, therefore, a retrial was not justified, especially when it is not shown that there has been any disregard of basic principles and procedures governing a criminal trial.

9. After hearing the learned counsel at some length we are of the view that this case does not call for any interference by this Court.

10. We have already observed that the High Court was not satisfied with) the reasons given by the learned trial Judge for acquitting accused persons named Sardar, Boota, Abdul Majid and Sharif, for the reason that the learned Judge had been erroneously influenced by the opinion formed by the Police Officer during the investigation of the case. It is clear; therefore, that the acquittal of these four persons has not proceeded on the basis that the prosecution witnesses were not reliable, and cannot therefore, affect the credibility of these witnesses as against the remaining accused persons.

11. The High Court has acquitted Bashir by giving him the benefit of doubt for the reason that he was not named as a direct assailant by the witness Manzoor Hussain in his earliest statement made before a Magistrate. This factor again cannot benefit the other petitioners who were so named by Manzoor Hussain.

12. On the question of the retrial of Ghulam Haider it is clear that the same would be justified if there has been a disregard of some fundamental rule of procedure or if it is based on view of evidence which no respondent judicial officer, anxious to do justice could possibly take. The first condition does not apply in this case, but the High Court is clearly right in observing that the learned trial Judge has failed in this case to consider the effect ,6 of the recovery of .32 bore empties from the spot and the fact that the prosecution had attributed a pistol or revolver only to Ghulam Haider. An examination of the injuries sustained by the deceased was also not carried out to determine whether any of them could be caused by a bullet fired from) a pistol or a revolver.

13. On this view of the matter, we see no force in this petition which is accordingly dismissed.