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Petitioner: ABDUR RASHID VS Respondent: STATE
1988 S C M R 1819
1988 S C M R 1819
Present: Abdul Kadir Shaikh, S.A, Nusrat and Zaffar Hussain Mirza, JJ
ABDUR RASHID and others‑‑Petitioners
versus
THE STATE‑‑Respondent
Criminal Petition for Leave to Appeal No.5‑Q of 1987, decided on 23rd May, 1988.
(From the judgment/order of Baluchistan High Court, Quetta, dated 25‑11‑1987 in Criminal Appeal No.26 of 1987).
Penal Code (XLV of 1860)‑‑
‑‑‑Ss.326/34‑‑Petition for leave to appeal‑‑All pleas raised on behalf of accused had already been examined by High Court and rejected for proper and cogent reasons‑‑Main plea raised was about interestedness of eye‑witnesses which had also been fully dealt with by High Court who found no infirmity in evidence of ocular evidence supporting prosecution case‑‑Order of High Court convicting accused, held, unexceptionable‑‑Leave to appeal refused.
Iftikhar Muhammad, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 23rd May, 1988.
ORDER
ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Baluchistan High Court dated 25‑10‑1987 whereby a joint appeal filed by the petitioners was dismissed, and in result convictions and the sentences recorded against them by the Additional Sessions Judge, Usta Muhammad, under section 326/34, P.P.C. were confirmed.
The charge against the petitioners was that on 19‑1‑1986 at about 10‑30 a.m. they made a murderous assault on Shah Nawaz in which connection F.I.R. was lodged by Arz Muhammad, brother of the injured with Jhatpat Police Station at 11‑20 a. m. on the same day.
In the F.I.R., Arz Muhammad stated that while he was going to a Flour Mill situated at Jhatpat Town and reached near Railway line; he saw a big crowd. On going to the spot he found that his brother was lying injured, and the petitioners were assaulting him. Sher Dil was said to be armed with a hatchet while his companions had Dandas. They ran away when he, Ali Murad, Mehr Dil and Wasan reached there.
At the trial, prosecution case was supported mainly by ocular testimony of Shah Nawaz, the injured, Arz Muhammad, the first informant, Ali Murad, and Mehr Dil. According to medical evidence five injuries were noticed on the person of the injured out of which three, one incised wound and the others lacerated wounds were on the region of his head.
In defence, the accused denied the prosecution allegations and produced 4 witnesses.
Learned trial Judge believed the prosecution case and held the accused guilty under Section 326/34 P.P.C. and sentenced each of them to 5 years' R.I. and fine of ds.3,000, in default to suffer R.I. for 1 years.
On appeal by the convicts learned Judge in the High Court on re‑appraisal of the evidence confirmed the view of the learned trial Judge and dismissed the appeal.
We have heard the learned counsel appearing in support of this petition for leave to appeal and gone through the record of the case before us. We find that all the pleas raised by the learned counsel have already been examined by the learned Judge in the High Court and have been rejected for proper and cogent reasons. The main plea advanced is that no reliance ought to be placed on the alleged eye‑witnesses as they were interested persons. In this regard, this is what the learned Judge has observed:
"Regarding interestedness of eye‑witnesses it may be observed that the accused and the complainant party are related inter se and they have been residing in same village. No material was placed before me to suggest any infirmity in evidence of the 3 eye‑witnesses Ali Murad, Mehr Dil and Shah Nawaz, who had fully. supported the prosecution case regarding the inflicting the injuries by the three appellants. An absortive approach was made' by the defence to discard their evidence as there was no independent corroboration. It may be seen that the incident had taken place in broad daylight. The accused and the witnesses are related inter se hence known to each other and due to broad daylight there could be no mistaken identity. Substitution is phenomenon very rare particularly in this case when the accused are also related to the witnesses hence the second objection raised by the learned counsel is of no force and repelled accordingly."
We entirely agree with his views and find no merit in this petition. It is accordingly dismissed.
M.Y.H./A‑294/S ‑‑‑‑‑ Petition dismissed.