1985 PLP 2036 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑The two respondents Muhammad Ali and Dhani Bux were convicted by the Sessions Judge, Sanghar, under section 302/34 of the Pakistan Penal Code and sentenced to life imprisonment and fine of Rs.5,000 each. The appeal filed by the convicts in the Sind High Court succeeded, and the petitioner who had lodged the report of the crime now seeks special leave to appeal. The prosecution case briefly narrated is that while Hamzo Khan was sitting in the Dispensary of Ghulam Hussain (P.W.) and reading a newspaper, the two accused came armed with country‑made pistols and fired at Hamzo Khan causing his instantaneous death and they then ran away in a jeep belonging to Muhammad Yakoob Sanjrani. It is said that the fire‑shots attracted Azizullah son of the deceased who was sitting in a nearby hotel, and other persons including. Muhammad Bachal (P.W.). According to Azizullah, while he was rushing to the scene of offence he saw the two accused, and both gave him a Hakal saying that they had killed their enemy and he should not come near as he would also be killed. The prosecution case at the trial consisted ocular testimony of Ghulam Hussain which was sought to be corroborated by Azizullah and Muhammad Bachal (P.Ws.) and also by the circumstantial evidence of recovery of pistols from the possession of appellants which were connected with crime empties secured from the scene of offence. The Sessions Judge, Sanghar, did not place reliance on the circumstantial evidence of the recovery of crime weapon but he believed Azizullah, Ghulam Hussain and Muhammad Bachal (P.Ws.) as trustworthy witnesses and held both the accused persons guilty under section 302/34 of the Pakistan Penal Code and convicted them as mentioned above. On appeal by the convicts, a learned Single Judge in the High Court took the view that the three witnesses were not trustworthy, and in this behalf he relied on certain omissions in their 164, Cr.P,C. statements. On this view of the case, the conviction and sentence recorded against the respondents were set aside and their appeal was allowed. Mr. Khalid Ishaque, learned counsel appearing in support of the petition submits that criteria adopted by the learned Judge in the High Court treating every omission in 164, Cr. P. C. statements of the prosecution witnesses as a contradiction is not warranted by law or any legal principle, and the acquittal of the accused has resulted in a gross miscarriage of justice. The incident in the case took place in a broad day‑light in the dispensary of Ghulam Hussain (P.W.) and in the report of the crime which was lodged without loss of time, the entire prosecution case was revealed. After having gone through the record of the case we feel that this is a fit case for examination whether the acquittal of the accused is in disregard of well‑settled principles governing administration of criminal justice. Leave is granted and the petition is allowed. Bailable warrants returnable through the Sessions Judge, Sanghar, in the sum of Rs.20,000 shall issue against the respondents. M.I. Leave granted.