1988 PLP 571 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--Muhammad Aslam the brother of the deceased has brought this petition for leave to appeal to call in question the judgment of a Division Bench of the Lahore High Court dated 10th November, 1981, whereby the appeal of the convicts was allowed and that filed by the State was dismissed and the death sentence passed on respondent Zahid Javid Butt was not confirmed.

2. The prosecution case was that during the PNA agitation against the P.P.P. the occurrence took place at Chowk near Gali No.71. Bazaz Mohalla, Sadar Bazar, Lahore. It was alleged that Hamid Javed caught hold of Muhammad Ashraf deceased, while Zahid Javed inflicted churri blow to him in the chest. In the course of their escape from the scene when the witnesses tried to catch them Zahid Javed was further alleged to have injured Muhammad Aslam (PW) on his hand. The cause of the fight is said to have been the impression of the accused that the deceased had abused the accused in the procession on a day prior to the occurrence.

3. On scrutinizing the evidence the trial Court believed the motive and found it of great significance as the parties belonged to two rival political groups. The testimony of the two eye-witnesses, namely, Muhammad Asif (not related to the deceased) and Muhammad Aslam, brother of the deceased and injured during the occurrence, was accepted by the trial Court as intrinsically credit worthy. In the absence of prior personal enmity the trial Court held them to be independent witnesses with no motive to falsely implicate the accused, with the additional circumstance that Muhammad Aslam was injured during the occurrence and Muhammad Asaf was not related to the complainant side. However, since it was alleged that Hamid Javed was also armed with a churri but did not use the same, the trial Court held that he did not share common intention with the principal accused Zahid Javed. Accordingly Zahid Javed was found guilty of murder under section 302, P.P.C. and was awarded death sentence and the penalty of fine. He was also convicted under section 307, P. P. C. and sentenced to two years' R.I. plus fine for having attempted on the life of Muhammad Aslam. Hamid Javed was convicted under section 325, P.P.C. and sentenced to two years' R.I. and fine.

4. When the matter came up before the Division Bench of the Lahore High Court in an appeal filed by the convicts and the reference for confirmation of death sentence awarded to Zahid Javed the learned Judges of the Division Bench took the view that the testimony of Muhammad Aslam, the first informant was unreliable on account of a particular feature of his evidence. In this connection the learned Judges made the following observations:- "Reverting to the testimony of Muhammad Aslam, it is to be noted that the prosecution's own case is that he was medically examined at 2.30 on the night between 26th/27th of February, 1977. The witness was very sure and this fact he confidently confirmed in his evidence that he never left the dead body of his brother even for a moment after the murder had taken place till the post-mortem examination. No explanation has come on the record as to how he was examined by the doctor at 2.30 a.m. Learned counsel for the State as well as for the complainant have not been able to clarify this position. As a matter of fact, no effective argument was advanced by them in this respect. It is impossible to ignore this fact which seriously reflects on the credibility of Muhammad Aslam." The evidence of the other witness Muhammad Asif, was rejected on the ground that he was admittedly a friend of the deceased since childhood and a worker of the same political group to which the deceased belonged. The learned Judges then took judicial notice of the fact that there was a political turmoil in the country and the workers of the rival groups detested each other. The final conclusion as to the prosecution evidence was recorded in the following passage of the judgment:- "As the prosecution did not give any explanation about the medico-legal report of the injured Muhammad Aslam, his statement cannot be safely relied upon. This shatters the entire persecution case. Even, the other eye-witness is not independent. Hence no reliance can also be placed on their testimony. "

5. Learned counsel for the petitioner has criticised the approach adopted by the learned Judges of the High Court in evaluating the prosecution evidence and has contended that the testimony of the two eye-witnesses has been rejected as interested on legally insufficient grounds. According to the learned counsel there being no definite personal hostility between the parties there was no question of false involvement of the accused in the occurrence which took place in thickly populated area at a time when there was no question of mistaken identity. He has submitted that learned Judges have given undue importance to a casual admission by Muhammad Aslam (PW) in his testimony that he remained with the dead body of his brother, till the post-mortem examination which took place on the next day in the morning, whereas he was medically examined at 2.30 in the night. It was urged that the place of medical examination was quite near to the mortuary where the dead body was lying and having regard to the nature of his injury his absence from the place outside of the mortuary for the purpose could hardly have taken more than five minutes. This insignificant circumstance could not be made the entire basis for rejecting the prosecution case.

6. We have examined the judgment of the High Court and the relevant evidence and feel that, in view of the contentions raised, the case requires re-examination of the evidence in order to determine whether the conclusions arrived at by the learned Judges are in accordance with the settled principles of appraisal of evidence anal safe administration of criminal justice as laid down by this Court, sol far as Zahid Javed respondent is concerned. However, the case of Hamid Javed respondent stands on a different footing. The trial Court had come to the conclusion that he did not share common intention with the principal accused and did not commit any act in furtherance thereof. Muhammad Asif (PW) stated that Hamid Javed accused the deceased for having abused them during the procession on the previous day whereas Muhammad Aslam (PW) attributed this to Zahid Javed respondent. Hamid Javed respondent was, therefore, entitled to benefit of doubt as to his participation in the commission of the crime.

7. For the foregoing reasons we accept the petition partially and grant leave to appeal so far as Zahid Javed respondent is concerned. The petition as against Hamid Javed respondent is dismissed. Bailable warrants in the sum of Rs.25,000 with one surety in the like amount shall issue against Zahid Javed to the satisfaction of the Assistant Commissioner, Lahore Cantt. M.I. /M-335/S Order accordingly.