1968 SCMR 26 (PLP)

HAMOODUR RAHMAN, J.-The second respondent herein was charged along with two other persons who have since been acquitted, by the trial Court for the murder of one Qadir and the attempted murder of one Akbar, on the 30th of November 1965, at about sunset time, at Sharinwala well. His defence was false implication due to previous enmity. At the trial though it was abundantly established that there was a blood feud between the parties yet the trial Court convicted the respondent Arif on both the counts and sentenced him to death on the charge of murder. On appeal, however, the High Court took the view that the ocular tesimony of the three witnesses who had been produced as eye-witnesses, was wholly unreliable, since so far as two of them, namely, Bagga (P. W. 13) and Akbar (P. W. 10 are concerned, they happened to be not only closely related to the deceased but that there was also a blood feud between Bagga and Akbar and the respondent Arif as also Wali Muhammad Lambardar. This Lambardar is also closely related .0 Bagga, the maternal-uncle of the deceased, being the former's nephew. The third witness Muhammad Din, though unrelated to the deceased, was round to be living in the house of Wali Muhammad Lambardar in the Abadi of village Fateh Muhammad Khurd, which was about half a mile away from Sharinwala well where the incident took place. The probabilities, therefore, were that this Muhammad Din, who was clearly under the influence of Wali Muhammad Lambardar, had been procured as a witness to support Bagga and Akbar. The High Court was also of the opinion that the ocular testimony had been contradicted by the medical evidence. The story that the respondent Arif had at first shot at Akbar through an aperture in the door of the kurh, in which Akbar had taken shelter, was not supported by any kind of a pellet mark on the wall of the kurh. The time of the incident given by the prosecution witnesses was also found to be incorrect on the basis of the autopsy report which showed that 10 ounces of liquid and semi-digested food matter were found in the stomach of the deceased. They gave the lie to the evidence of Bagga and Akbar who unanimously deposed that the deceased had not taken his evening meal when the occurrence took place. These witnesses had been disbelieved even by the trial Court with regard to the acquitted accused. The recovery of the empty cartridges from the place of the incident was also doubted, as they were not mentioned in the first information report or in the inquest report. Learned Counsel appearing in support of this petition has sought to argue that the High Court had discarded the evidence of Muhammad Din upon insufficient and unreliable grounds. But we are of the opinion that the grounds given by the High Court were cogent and valid grounds. There was abundant evidence to show that Wali Muhammad Lambardar was, by no Means, favourably disposed towards the accused. In the circumstances, a landless person ekeing out a living by keeping buffaloes in the house of the said Lambardar could not be considered to be a wholly disinterested or independent person. Besides, this is not the only reason upon which Muhammad Din's veracity has been doubted. It appears that he had no particular reason to be present at the well, half a mile away from the village Abadi. His story that he came there to take green fodder from the deceased is not supported by the finding of any such cut green fodder near the well. &sides, this is not, the only ground for acquitting the respondent. The reasons given by the learned Judges of the High Court cannot be described as being insubstantial or irrelevant. The reasons to which we have referred earlier are by themselves, in out opinion, sufficient to cast a serious doubt as to the truth of the prosecution story. It cannot, therefore, be said that the High Court had acted unreasonably in giving the benefit of that doubt to the accused person. We, therefore, see no merit in this petition which is accordingly, dismissed. Petition dismissed.