1988 PLP 438 (SCMR)

SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the judgment dated 5-2-1984 of the Lahore High Court, setting aside the conviction and sentences of Sabir Shah and Mehr Shah, respondents, on a charge under section 302, read with section 34, of the Pakistan Penal Code. The petitioner is the son of Sher Shah deceased who was alleged to have been killed by the respondents.

2. According to the prosecution, there was a dispute between the parties over some land. On 6-12-1976, at noon time, the deceased was present at his Dera in Chak No.395/GB together with Murad Shah, Waryam, Bashir and Muhammad Shah. The respondents together with four other persons came there. Sabir Shah was carrying a rifle, Mehr Shah had a shot gun while their companions were carrying lathies. On a lalkara raised by two of their companions, Sabir Shah and Mehr Shah fired their weapons at the deceased. The deceased was hit in the head and he died at the spot. The respondents and their companions then left the Dera. After the occurrence Murad Shah, son of the deceased, went to Police Station Tandlianwala which was 7 miles away. He lodged the F.I.R. at the said police station at 2.15 p. m.

3. The post-mortem examination of the deceased was performed by Dr.Ahmad Saeed (P.W.7) who found a lacerated wound on his head.

4. The case was mainly investigated by ASI Muhammad Arshad (P.W.17). On reaching the spot soon after recording the F.I.R., he found an empty shell there. He also observed pellet marks on the wall of the Dera. He sent the empty shell to the Forensic Science Laboratory on 14-12-1976. He arrested Sabir Shah accused on 16-12-1976 and Mehr Shah on 4-1-1977. At the time of their arrest Sabir Shah and Mehr Shah produced a rifle and a gun, respectively, before this officer. The empty shell was found to have been fired from the rifle recovered from Sabir Shah.

5. The respondents and their companions pleaded not guilty at the trial and denied that they were responsible for causing the death of the deceased. They did not produce any evidence in their defence.

6. At the trial the prosecution rested its case against the respondents and their companions on the ocular testimony furnished by Murad Shah (P.W.14), Bashir (P.W.15) and Maryam (P.W.16). It also relied upon the recovery of fire-arms from the possession of the respondents. The learned Additional Sessions Judge, Faisalabad, who held the trial believed the ocular testimony and, so far as the respondents were concerned, the recovery evidence also. Consequently, he convicted the respondents of an offence under section 302, read with section 34, of the Pakistan Penal Code and sentenced Sabir Shah to death and Mehr Shah to imprisonment for life. It also imposed sentences of fines upon them. As regards their companions, he gave them the benefit of doubt and acquitted them.

7. On appeal and reference, the High Court held that the eye witnesses produced by the prosecution were hostile towards the respondents on account of some previous criminal cases and that the recovery evidence was not acceptable as the only witness from the public produced by the prosecution was inimical to the respondents; accordingly, it acquitted the respondents also.

8. In support of this petition, it is urged that the High Court was not right in rejecting the recovery evidence which fully supported the ocular testimony, for, even if the only witness from the public, examined by the prosecution was unreliable, there was no reason why the testimony of the investigating officer should have been discarded.' There was nothing on the record to show that the investigating officer had been dishonest or had any motive to fabricate evidence against the respondents.

9. The contention raised on behalf of the petitioner needs examination. Leave to appeal is granted. Let warrant of arrest returnable to District Magistrate, Faisalabad, issue against Sabir Shah and Mehr Shah respondents. S.Q./M-295/S Leave granted.