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Petitioner: HABIBULLAH and another VS Respondent: StateHonorable Justice KHALIL-UR-REHMAN RAMDAYNiar Ahmed Rathore,G.N. Gohar
2007 S C M R 1758
2007 S C M R 1758
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday and Tassaduq Hussain Jillani, JJ
HABIBULLAH and another----Petitioners
Versus
THE STATE----Respondent
Jail Petition No.68 of 2006, decided on 16th May, 2006.
(On appeal from the judgment, dated 26-i-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No.373. of 2001).
(a) Penal Code (XLV of 1860)---
----S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Enmity between the parties stood admitted on record---Consequently, implicit reliance could not be placed on the testimony offered by the eye-witnesses unless the same was corroborated by some other piece of evidence emanating from independent sources.
(b) Penal Code (XLV of 1860)---
----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to convicted accused where availability of crime-empties at the place of occurrence and their alleged recovery was a more than doubtful affair and in circumstances, no reliance could be placed on the said piece of evidence---Wound of entrance on the body of the deceased was a further circumstance which also warranted examination of the evidence available on record.
Niar Ahmed Rathore, Advocate Supreme Court for Petitioners.
G.N. Gohar, Advocate Supreme Court for the State.
ORDER
KHALIL-UR-REHMAN RAMDAY, J.--- The two petitioners are first cousins inter se. A brother and a father" of the deceased of the present case had earlier murdered the father of Habibullah convict for which they were punished and had since come out of jail after suffering the sentences of imprisonment awarded to them. The enmity between the parties thus, stood admitted on record. Consequently, implicit reliance could not be placed on the testimony offered by the eye-witnesses unless the same was corroborated by some other pieces of evidence emanating from independent sources.
2. Five empties had been recovered from the spot and the report of Forensic Science Laboratory was that three of them had been fired from. the pistol allegedly recovered at the instance of Habibuliah convict while the remaining two "had been fired through the weapon allegedly recovered at the instance of Umar Hayat convict. This could have offered the corroboration required for the purpose but then it was admitted by the Investigating Officer, namely, Jahan Khan (P.W.12) that the Raga D.S.P. had sent him a Robkar on 10-8-2000 i.e. two days after the occurrence calling upon him to procure blood-stained earth and crime-empties and to take them into possession. it was further admitted by the said Investigating Officer that on 12-8-2000, he had received a further Robkar from the said D.S.P. asking for the compliance report with respect to his said earlier Robkar and that it was on 12-8-2000 that he submitted the report to the said D.S.P. verifying compliance thereof. It is submitted by the learned Advocate Supreme Court for the convict that vi this view of the matter, the availability of the said five crime-empties at the place of occurrence and their alleged recovery on 8-8-2000, was a more than doubtful affair and that in the circumstances, no reliance could be placed on the said piece of evidence.
3. The receipt of the wound of entrance on the body of the deceased was a further circumstance which also warranted examination of the evidence available on record.
4. In view of "the said reasons and others, this petition is allowed and leave granted for the purpose.
M.B.A./H-12/SC Leave granted.