1989 PLP 405 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of Sind High Court dated 12‑11‑1986 by which a joint appeal of the first two respondents, Abdul Ghafoor and Muhammad Rafique was allowed, with the result that the convictions and sentences recorded against them under section 302/34, P.P.C. by the Sessions Judge, Nawabshah were set aside. The incident occurred on 5‑9‑1982 at about 7 p.m. opposite the shop of Mohammad Anwar Awan, deceased in the case, in Hajamki Street in Sakrand town, at a distance of about a furlong from the Police Station. Deceased s father, Ghulam Sarwar, petitioner herein, lodged the report of the crime within one hour of the incident. The prosecution case briefly stated is that Abdul Ghafoor respondent, who is a son of Muhammad Rafique respondent, used to sell Kababs on a push‑cart opposite Ghulam Sarwar's hotel. Muhammad Anwar used to run a cassette shop at a different place from his father's hotel. It is alleged that a quarrel had occurred a day earlier between Muhammad Anwar and Abdul Ghafoor over the parking of push‑cart by the latter near Ghulam Sarwar's hotel and both the accused were annoyed on that account. On the day of incident, when Ghulam Sarwar was sitting at the shop of his son, both Abdul Ghafoor and Muhammad Rafique came there, former being armed with a knife, and they blamed Muhammad Anwar for the incident of the previous day. Abdul Ghafoor then struck knife blow on the chest of Muhammad Anwar, at the instigation of his father, with the result that the victim fell down. It is said that apart from Ghulam Sarwar, the incident was witnessed by Sher Muhammad, Lal Bux and the other shop‑keepers in the neighbourhood. The victim was immediately taken to the hospital but he soon succumbed to the injuries. During the investigation, both the accused were arrested on the same day and from their house, the weapon of offence was recovered which according to Chemical Analyser's Report was stained with human blood. At the trial, prosecution case was sought to be proved by the ocular testimony of three witnesses, Ghulam Sarwar, Sher Muhammad and Lai Bux, the circumstantial evidence of the recovery of the blood‑stained knife from Abdul Ghafoor accused and the motive. The accused however denied their involvement in the crime, and alleged false implication for the reason that Ghulam Sarwar wanted that Abdul Ghafoor should shift the parking of his push‑cart from near his hotel.. Learned Sessions Judge who tried the case believed the three eye witnesses, the circumstantial evidence and the motive and in result convicted both the accused under section 302/34, P.P.C., but on a joint appeal of the convicts and in confirmation proceedings, learned Judge of the High Court however took a different view, and not only disbelieved the ocular testimony of three witnesses but also the circumstantial evidence and acquitted the accused. Mr. Abdul Hafeez Memon, learned counsel appearing in support of the petition submits that the learned Judges have failed to appreciate that deceased's father Ghulam Sarwar was a natural witness of the scene of occurrence, and the other witnesses were reliable witnesses having no motive against the accused for falsely implicating them in the serious crime of murder. Learned counsel further submitted that the learned Judges have also wrongly discarded the corroboratory evidence of recovery of the blood‑stained weapon of the crime. He argued that this is a case of broad daylight murder and the eye‑witnesses had no reason to falsely substitute some other persons than the real culprits. After having gone through the record of the case we find that the question whether the acquittal of the respondents in the view of the weight and A the quality of the prosecution evidence proved at the trial is in consonance with the legal principles governing criminal justice, requires examination. Leave is, therefore, granted, and the petition is allowed. Bailable warrants in the sum of Rs. 50,000 shall be issued by the Sessions Judge, Nawabshah for the arrest of the first two respondents. The respondents shall also be required to furnish personal bonds m the like amount to the satisfaction of the Sessions Judge, Nawabshah. M.A.K./G‑151/S Leave granted.