1995SCMR42 (PLP)

SAAD SAOOD JAN, ACTG. C.J.-‑The respondents, namely, Muhammad Arif, Muhammad Pervez, Muhammad Akram and Khalid Mahmood, were tried by the Sessions Judge at Attock on charges under sections 302 and 307 read with section 34, Pakistan Penal Code, for causing the death of Abdul Rahman, deceased, and making murderous assault on his wife, Mst. Nasim Akhtar. Along with them Muhammad Rafiq and Chaudhry Rab Nawaz were also tried on the charge of abetment. The learned Sessions Judge acquitted Khalid Mahmood, Muhammad Akram, Chaudhry Rab Nawaz and Muhammad Rafiq but convicted Muhammad Arif and Muhammad Pervez. In respect of the offence under section 302, ibid, he sentenced them to death and also directed them to pay fines and compensation. The convicts filed an appeal before the High Court. The learned Sessions Judge also made a reference to the High Court for confirmation of the sentences of death. The State filed an appeal against the acquittal of Muhammad Akram, Muhammad Rafiq, Khalid Mahmood and Chaudhry Rab Nawaz. The High Court accepted the appeal of the convicts and set aside their convictions and sentences. It rejected the reference made by the Sessions Judge and dismissed the appeal filed by the State. The State as well as the complainant party seek leave to appeal from the judgment of the High Court in so far as the acquittal of Muhammad Pervez, Muhammad Akram, Muhammad Arif and Khalid Mahmood is concerned.

2. Admittedly, there was enmity between the parties. The deceased was a local lawyer. About two and a half years prior to the present occurrence Muhammad Siddiq, paternal‑uncle of Khalid Mahmood, was murdered. The deceased was one of the accused in the ensuing murder case. It was the case of the prosecution that the respondents were out to take revenge.

3. On 7‑9‑1987, at 7‑30 p.m., the deceased was travelling by his car to his house in Chaklala Road. His wife, Mst. Nasim Akhtar, was sitting beside him on the front seat. His brother, Ch. Mehrban (P.W.16), and his cousin, Qurban Hussain (P.W.17), were sitting in the rear seats. When they reached near the Leper's Colony Muhammad Arif, Muhammad Pervez, Muhammad Akram and khalid Mahmood suddenly appeared on the road side. They were carrying different fire‑arms. On seeing them the deceased tried to bypass them. In the process his car struck against the electric pole and came to a halt. The assailants approached the car and started firing at the deceased. The deceased and his wife were hurt. They were removed to the hospital but the deceased died on the way. The occurrence was reported by Ch. Mehrban (P.W.16) at Police Station Waris Khan on the same evening at 8‑30 p.m.

4. At the trial, the respondents pleaded not guilty to the charges against them and alleged that they had been falsely implicated. At the trial, the main evidence against them was provided by Ch. Mehrban (P.W.16), Qurban Hussain‑(P.W.17) and Mst. Nasim Akhtar (P.W.19). In so far as Muhammad Arif and Muhammad. Pervez, respondents, are concerned, confirmation was available from the recovery of the empty cartridges recovered from the scene of occurrence which were later found to have been fired by the guns recovered from them.

5. The High Court rejected the ocular testimony holding that the account of the occurrence as given by the eye‑witnesses did not conform to the attending circumstances. It also rejected the evidence with regard to the recoveries as not reliable.

6. In support of these petitions it is contended that the reasons given by the High Court in rejecting the eye‑witness account as unreliable are insupportable, particularly when one of the eye‑witnesses, namely, Mst Nasim Akhtar was found to be bearing an injury on her person immediately after the occurrence. It is further contended that the High Court was not justified in not relying upon the recovery evidence. ‑????

7. After hearing the learned counsel for the petitioner and going through the record we are of the opinion that the contentions raised on behalf of the petitioner requires consideration in so far as Muhammad Arif and Muhammad Pervez are concerned, for, as regards these two respondents the ocular account finds support from the recovery evidence. We would accordingly give leave in the two petitions to consider whether the acquittal of these two respondents is sustainable. As regards the other respondents leave is refused. Let bailable warrants in the sum of Rs.50,000 with two sureties in the like amount returnable to District Magistrate, Attock, be issued against these two respondents.???? N.H.Q./M‑2099/S?????????????????????????????????????????????????????????????????????????????? Order accordingly.