1969 P Cr (PLP)

Penal Code (XLV of 1860), S. 302‑Acquittal of accused by High Court‑Certain features of case requiring examination afresh ‑ Special leave to appeal against acquittal granted by Supreme Court. Chaudri Nazir Ahmad Khan, Senior Advocate Supreme Court (S. Masoom Shah, Advocate Supreme Court with him) instructed by Muhammad Nazar Khan Senior Attorney for Petitioner. Nemo for Respondent No.

1. Fakhr‑i‑Alam, Additional Advocate‑General West Pakistan (Usman Ali Shah, Advocate Supreme Court with him) instructed by S. Safdar Hussain, Attorney for Ijaz Ali, Attorney (on record) for the State. Date of hearing : 24th October 1968. SAJJAD AHMAD, J.‑The respondent Muhammad Hayat and two others, namely, Muhammad Sadiq and Muhammad Khan, were tried under section 302/34, P. P. C. for the murder of their co‑villager Mohd. Khan at peshin time on the 12th December 1965. Muhammad Hayat was convicted and sentenced to transportation for life and the other two were acquitted by the learned Additional Sessions Judge, Campbell pur. This order was challenged in appeal by Muhammad Hayat and in revision by the petitioner, Ghulam Muhammad, son of the deceased, Muhammad Khan, the latter seeking enhancement of the sentence of Muhammad Hayat and the re‑trial of the acquitted accused. The High Court has accepted the appeal of Muhammad Hayat and acquitted him. The revision petition of Ghulam Muhammad was dismissed. In this petition the acquittal of Muhammad Hayat is being challenged. It was a day‑light occurrence, the prosecution version of which was supported by a number of eye‑witnesses. The High Court has disbelieved this evidence contrary to the view of the trial Judge on the ground, firstly, that they are relation witnesses who bore enmity to the appellant, and secondly, that their testimony is in conflict with the medical evidence. It is submitted by the learned counsel for the petitioner that no serious enmity exists between the respondent and the witnesses to motivate a false charge for a capital offence. It is further submitted by the learned counsel that the view of the High Court that the ocular evidence was not in accord with the medical opinion is based on surmises. A gun Exh. 9, which is licensed in the name of Sadiq, the acquitted accused, was recovered at the instance of Muhammad Hayat, respondent. Its striker was found to be broken. It was sent to the Ballistic Expert along with the empty shell recovered from the spot. His negative opinion has been referred to by the learned Judges in the High Court as a confirmatory circumstance in favour of the innocence of the respondent, although as submitted by the learned counsel for the petitioner, the expert was neither examined at the trial nor was his report brought on the Sessions record. We think that it is expedient to re‑examine this case in the interest of justice. Accordingly, we grant leave to appeal. Bailable warrants shall issue against the respondent, Muhammad Hayat, returnable to the District Magistrate, Campbellpur. Leave granted.