1988 PLP 1053 (SCMR)

USMAN ALI SHAH, J.‑‑The abovementioned four connected petitions for leave to appeal have arisen against the judgment dated 30‑11‑1985, passed by the Lahore High Court, whereby (i) Criminal Appeal No.545/82 of Ziafat Pannah and Mumtaz Ali accused against their convictions and sentences awarded by the learned Sessions Judge for the murder of Muhammad Sher was accepted and they were acquitted, (ii) State Criminal Appeal No.16/83 against the acquittal of five accused namely, Ahmad Khan, Ghulam Ali, Muratab Ali, Khalid Hayat and Ahmad Bakhsh in the above murder case was dismissed and (iii) Criminal Revision No.804/82 Tiled by the complainant party for the enhancement of life imprisonment awarded to Mumtaz Ali to that of death in above murder case was also dismissed. Motive for the alleged offence is that Mst.Kulsoom Akhtar was the sister of Ziafat Pannah appellant and sister‑in‑law of Muhammad Sher deceased. The 'Nikah' of Mst.Kulsoom Akhtar was solemnised with Mumtaz Ali appellant. Muhammad Sher deceased had developed illicit relations with her before 'Rukhsati' and she refused to marry Mumtaz Ali appellant. As a result, she was murdered and on 25‑8‑1975 a case under section 302/34, P.P. C. was registered against Ziafat Pannah, Mumtaz Ali appellants, Ghulam Ali acquitted accused and Amir Abdullah vide F.I.R. Ex.PW27/A Mumtaz Ali, Amir Abdullah and Ghulam Ali were found innocent during the investigation and only Ziafat Pannah was challaned who was also acquitted in the said case in 1978. Since then Muhammad Sher and Ziafat Pa'nnah had a grudge against each other. Muhammad Sher owned land in Chak No.138/SB. Ghulam Muhammad PW‑23 was the tenant of Shahid Sultan nephew of the deceased. On the day of occurrence Muhammad Nawaz complainant had sent Ghulam Muhammad PW‑23 to Muhammad Sher deceased for bringing his Tractor alongwith Wheat‑Thrasher. Ghulam Muhammad contacted Muhammad Sher deceased at Sargodha who told him that his Tractor and Thrasher were in Chak No.138/SB. The moment it became spare, he would oblige the complainant. The deceased then asked Ghulam Muhammad P. W .23 to accompany him to Chak No.138/S B who accompanied him in his car. Muhammad Sher was driving the car while Ghulam Muhammad occupied the rear seat. When the car reached near the place of occurrence, there was a barrier where a light blue car with its bonnet lifted up, was already parked. A person was standing near its bonnet. Muhammad Sher deceased had to stop the car because there was no other way to pass. At that time an unknown person described in the FIR as: GANDUMI RANG, LAMBAY BAAL, DARMIANA JISAM, LAMBA QAD, NAUJWAN armed with .12 bore gun appeared from the side of the canal and fired twice at Muhammad Sher, hitting him on the back of the right shoulder and on the right side of the neck. The window pan of the front seat was broken by the first shot. Thereafter, the person standing near the bonnet described in the F.I.R. as: KHILTA HUWA GANDUM RANG, QAD DARMIANA, BAL LAMBAY armed with .12 bore gun came near the car of the deceased and fired 2 shots at him which hit him on right side of his front and on the back of his right hand. Muhammad Sher succumbed to the injuries on the spot. The two accused decamped in the blue car towards Sihala. It has been stated at the trial that Allah Bakhsh was also seen sitting on the driver's seat in the car. The occurrence was also seen by Saadullah PW‑24 and Abdul Sattar (not produced). 'Leaving the PWs with the dead body, Ghulam Muhammad went to Chak No.126/N.B. where he narrated the occurrence to complainant Muhammad Nawaz who both came back to the spot where PWs Abdul Sattar and Saadullah apprised him of the occurrence. The complainant Muhammad Nawaz PW‑21 then left for Police Station Sillanwali where he made F.I.R. Ex.PF. wherein he mentioned the names of Ziafat Pannah, Mumtaz Ali, Ahmad Khan and Muratab Ali as suspected culprits who either killed Muhammad Sher deceased or got him killed. S.I. Ijaz Hussain P.W.‑32 went to the spot. He examined the dead body and prepared the injury statement Ex.P.GG and inquest report Ex.P.HH. The dead body was handed over to F.C. Ghulam Hussain for taking it to the mortuary. Toyota car No.RID‑8461 was seized vide memo Ex.PV. Broken pieces of window pan, blood‑stained covers of the car front seats and 3 empties were also taken into possession. Besides, six pellets and a cardboard of cartridge extracted from the left window of the car were also taken into possession. Recovery memo Ex.PV of all these articles was prepared, in presence of P.Ws. Hamid Anwar and Nur Muhammad. Statements under section 161, Cr.P. C. of the eye‑witnesses Ghulam Muhammad, Abdul Sattar and Saadullah were taken down. Two of 'Wajtakker' witnesses, Allah Yar and Muhammad Sarwar also appeared before the S.I. who examined them under section 161, Cr.P.C. On 10‑5‑1980 Doctor Muhammad Azim Majuka (PW‑11) conducted the autopsy on the dead body of Muhammad Sher at 5.50 p.m. who found 4 fire‑arm injuries on the dead body of the deceased. In his opinion, death of the deceased occurred due to haemorrhage and shock as a result of gun shot injuries. In so far as accused Ahmad Khan, Ghulam Ali, Muratab Ali, Khalid Hayat and Allah Bakhsh are concerned, the charge against them is not straightforward. It is clear that there is no allegation against them that they had taken active part in the occurrence. By going through evidence, the charge against them is based on suspicion. We, therefore, do not see any reason to interfere with the impugned judgments of the two Courts below. Consequently criminal petitions bearing Cr.PLAs Nos.10‑R and 115 of 1986 are dismissed and leave is refused. As far as the charge against accused Ziafat Pannah and Mumtaz Ali are concerned, they were tried by the learned Sessions Judge. In consequence of the trial, he found Ziafat Pannah guilty of the offence under section 302 P.P.C. and Mumtaz Ali under section 302/109 P.P.C. He sentenced accused Ziafat Pannah to death and Mumtaz Ali to life imprisonment. Fines were also imposed upon them. The two accused filed appeal in the High Court. The learned Division Bench of the High Court accepted the appeal and setting aside the judgment of the trial Court, acquitted the accused vide judgment dated 30‑11‑1985. Hence these two petitions bearing Nos.9‑R and 113 of 1986 for leave to appeal. We have heard the learned counsel for the petitioners in petitions bearing Nos.9‑R/86 and 113/86. As regards the charge against accused Ziafat Pannah, the prosecution case is that it was he who committed the crime by firing at the deceased from shot‑gun. The eye‑witnesses have supported the charge against him. The occurrence took place in an alien place. The mere fact that the names of the eye‑witnesses were not mentioned by the deponent in the F.I.R. should not be the ground that the eye‑witnesses could not be believed. During the investigation, the eye‑witnesses came forward to depose against the accused Ziafat Pannah that he was responsible for the murder of the deceased by firing at him. Identification parade was held and during the course of it the eye‑witnesses identified him. The prosecution case is supported by the medical evidence, according to which the deceased suffered death as a result of gun shot injuries. As regards accused Mumtaz Ali, the prosecution case against him is that Mst.Kulsoom, sister of accused Ziafat Pannah, was betrothed to him. No 'Rukhsatl' had taken place. It is alleged that she had developed illicit relations with her sister's husband, Muhammad Sher deceased. Mst.Kulsoom was murdered. Accused Ziafat Pannah, Mumtaz Ali and others ,were charged for her murder in that case. Prima facie, therefore, Mumtaz Ali also seems to be connected with the crime and the evidence against him that he had abetted the murder in the present case requires careful scrutiny. We, therefore, grant leave in both the petitions. It is further directed that the respondents in both the petitions, who are already in jail shall not be released during the pendency of the present matter in the Supreme Court. M. I. /M‑414/S Leave granted.