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Petitioner: SULTAN VS Respondent: STATE
1997 S C M R 1389
1997 S C M R 1389
[Supreme Court of Pakistan]
Present: Saad Saood Jan, Irshad Hasan Khan and Raja Afrasiab Khan, JJ
SULTAN and others‑‑‑Petitioners
versus
THE STATE and others‑‑‑Respondents
Criminal Petition for Leave to Appeal Nos.293‑L and 321‑L of 1994, decided on 16th May, 1995.
(From the judgment/order of Lahore High Court, Lahore, dated 10‑7‑1994 in Cr. Appeal No. 185 and M. R. No. 102 of 1991).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302 & 307‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to accused to examine the contention that the recovery evidence from which the High Court sought corroboration for the ocular evidence was not credible as the Police Officer who had taken the spent cartridges to the Forensic Laboratory was not examined by the prosecution and it was not certain that the cartridges delivered at the Forensic Laboratory were the same which were found at the scene of occurrence and had not been tampered with.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302/149, 307/149 & 148‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑ Appeal against acquittal‑‑‑No corroborative evidence for the ocular testimony was available on the record‑‑‑Finding of High Court that the ocular evidence was not of the quality of being implicitly relied upon was not baseless in view of the enmity between the parties and the accused had been acquitted on good reasons‑‑‑Leave to appeal was refused to complainant in circumstances.
Ijaz Hussain Batalvi, Senior Advocate supreme Court, M.A. Zafar, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on- Record for Petitioners (in Criminal Petition No. 293‑L of 1994).
Rafique Ahmed Bajwa, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for the Complainant (in Criminal Petition No. 293‑L of 1994).
Ch. Rafique Ahmed Bajwa, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 321‑L of 1994).
Ijaz Hussain Batalvi, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Respondents Nos 1 to 3 (in Criminal Petition No. 321‑L of 1994).
Muhammad Sharif Butt, Advocate Supreme Court, Farooq Bedar, Additional Advocate‑General and Rao Muhammad Yousaf Khan, Advocate7on Record for the State (in Criminal Petition No. 321‑L of 1994).
Date of hearing: 16th May, 1995.
ORDER
SAAD SAOOD JAN, J.‑‑‑Sultan and Allah Bakhsh, petitioners, together with eight other persons, namely, Mutali, Amir, Allah Ditta son of Muhammad, Muhammad Nawaz, Muhammad Riaz , Faizulah alias Kaka Bafi, Sarfraz and Allah Ditta son of Allah Yar, were tried by the Additional Sessions Judge, Jhang, on charges under sections 302 and 307, read with section 149, and sections 148 and 120, Pakistan Penal Code, for causing the death of Ahmad Hayat, deceased, making murderous assault upon Muhammad Ismail Deendar (P.W.12) and Sher Muhammad (P.W.13), rioting and being participants in a criminal conspiracy. The learned Additional Sessions Judge acquitted Muhammad Riaz, Muhammad Nawaz, Faizullah alias Kaka Balli, Sarfraz and Allah Ditta son of Allah Yar, but convicted the petitioners together with Mutali, Amir, and Allah Ditta son of Muhammad, on charges under sections 302 and 307, read with section 149, and section 148, Pakistan Penal Code. On appeal and reference, the High Court acquitted Mutali, Amir and Allah Ditta son of Muhammad but maintained the convictions of the petitioners on the charges under sections 302 and 307 of the same Code. It confirmed the sentence of death imposed upon Sultan and upheld the sentence of imprisonment for life as imposed upon them by the trial Court. It reduced their substantive sentences under section 307 to rigorous imprisonment for a period of four years. The petitioners seek leave to appeal to challenge their convictions and sentences. On its part, the complainant party also filed a petition for leave to appeal to call in question the acquittal of Mutali, Amir and Allah Ditta son of Muhammad.
2. Admittedly, there has been serious enmity between the parties. Thus, while reporting the occurrence to the police Umar Hayat (P.W.11) stated:
According to the prosecution, on the morning of 15‑10‑1989, Umar Hayat (P.W.11), his brother, Ahmad Hayat, deceased, his paternal uncle, Sher Muhammad (P.W.13) and Muhammad Ismail Deendar (P.W.12) were going to hang where Umar Hayat was serving as a lecturer in a college and his companions had to appear before a Court. At about 7‑00 a.m. when they were passing through the village Saliana the petitioners along with Mutali, Amir, Allah Ditta son. of Muhammad and some others came out of a sugar field. They were all armed with shot‑guns. Sultan raised a Lalkara that they had come to avenge themselves. Immediately thereafter they started firing. Thus, Allah Bakhsh, Allah Ditta. son of Muhammad and Mutali' fired at Ahmad Hayat, deceased, who fell down. As he lay on the ground Sultan and Muhammad Nawaz shot at him. Sultan, Mutali, Amir, Allah Ditta son of Muhammad and Muhammad Nawaz fired at Sher Muhammad (P.W.13) also. Sultan, Muhammad Nawaz, Mutali, Amir, Allah Bakhsh and Allah Ditta son of Muhammad fired at Muhammad Ismail Deendar (P.W.12). Ahmad Hayat died at the spot.
3. The occurrence was reported at Police Station Massan by Umar Hayat (P.W.11) on the same day at 8‑00 a.m. It was mainly investigated by Sub Inspector Umar Hayat (P.W.22). During the course of the investigation, he recovered eleven spent cartridges from the scene of occurrence. Some of these cartridges were later found to have been fired by the guns recovered from the petitioners and Muhammad Riaz.
4. At the trial, the prosecution relied on the ocular account provided by Umar Hayat (P.W.11), Muhammad Ismail Deendar (P.W.12), Sher Muhammad (P.W.13) and Aurangzeb (P.W.14). It also sought confirmation of the ocular testimony from the recovery of spent cartridges from the scene of occurrence which were found to have been fired by the guns recovered from the petitioners.
5. After re‑appraising the evidence, the High Court was of the view that the statement of the eye‑witnesses could be relied upon only if they found corroboration from independent evidence; as corroboration was available in the form of recovery evidence only in respect of the petitioners it upheld their convictions on the charges under sections 302 and 307, and acquitted the others convicted by the trial Court.
6. On behalf of the petitioners, it is contended that the police officer who was stated to have taken the spent cartridges to the Forensic Laboratory was not examined by the prosecution for reasons not available on the record. Thus, it could not be said with any measure of certainty that the cartridges delivered at the Laboratory were the same which were found at the scene of occurrence or had not been tampered with; that being the factual position the recovery evidence from which the High Court sought corroboration for the ocular evidence was not of a quality upon which any reliance could be placed. This contention needs examination. Leave to appeal is granted to the petitioners.
7. As stated earlier, the complainant party is aggrieved by the acquittal of Mutali, Amir and Allah Ditta son of Muhammad. Admittedly, there was no evidence corroborating the ocular testimony so far as these accused persons were concerned. The finding of the High Court that the ocular testimony was not of a quality upon which implicit reliance could be placed cannot be described as baseless in view of the enmity between the parties. It is to be noticed that all the eye‑witnesses were closely related inter se. In the absence of any confirmatory evidence the High Court had good reasons for not upholding the‑convictions of these accused persons. In the circumstances, leave to appeal is refused to the complainant party.
N.H.Q./S‑977/S Order accordingly.