1990 PLP 245 (SCMR)

Muhammad Akhtar, Addl. A.‑G., Rao M. Yousaf Khan, Advocate‑on- Record and R.A. Germey, Advocate Supreme Court for Respondents. Date of hearing: 22nd August, 1989. ALI HUSSAIN QAZILBASH, J.‑‑This petition for leave to appeal arises from the judgment of a learned Division Bench of the Lahore High Court, dated 6‑2‑1988, whereby on the acceptance of the appeal filed by respondents Nos.l to 3, they were acquitted of the charge of murder.

2. The occurrence in this case is alleged to have taken place on 11‑7‑1982 at 5‑00 p.m. in the area of village Sheikh Chuhar, Police Station Saddar, Jhang, the report of which was made by Muhammad Afzal Shah (P.W.11) the same night at 8‑25 p.m. It was alleged that Nazar Shah deceased was returning home from the Dera of Allah Bakhsh Lohar followed by Muhammad Afzal Shah (P.W.11) who was returning from Chah Ahmadwala. When the deceased was passing through the village graveyard, Mazhar Hussain (respondent No.l), Umar Draz and Mehdi Shah (acquitted accused) armed with barchans, Asghar Hussain Shah (respondent No.2) armed with a knife, Muhammad Nawaz (respondent No.3), Abdul Ghafoor and Muhammad Nawaz (acquitted accused) armed with Kulharis Tasaddaque (acquitted accused) armed with a Ballam and Mushtaq (acquitted accused) armed with a Chhura came out of a hiding and launched an attack on the deceased while raising Lalkaras. The complainant ran towards the spot when in the meantime Khurshid Abbas (given up P.W.) and Obaid‑ur- Rehman (P.W.12) also came to the spot running. Within their view, Muhammad Nawaz son of Maddad Shah gave two Kulhari blows on the head of the deceased, Umar Draz gave two Barchha blows on the left flank of the deceased, felling the deceased on the ground. Abdul Ghafoor then gave him two successive Kulhari blows on his head, Mehdi Shah gave two Barchha blows on the left flank and left side of the spinal cord, Mazhar Shah gave a Barchha blow in the back, Mushtaq gave him a Chhura blow in the left side of hip, Tasaddaque caused a Ballam blow on the left side of the back and then all the accused caused injuries to Nazar Shah on his head, on the back of both hands and left shoulder. After causing the injuries the assailants left the spot raising Lalkaras. It was further alleged that while leaving, the assailants also took away a gold ring and wrist watch of the deceased.

3. The motive given in the F.1.R. is that 20 years back Nazar Shah deceased and three others had killed the grand‑father of Mehdi Shah, further that seven years back Abdul Ghafoor etc. had attempted at the life of the complainant and Nazar Shah and a case under section 307, P.P.C. was pending in the Court and, therefore, the present occurrence.

4. The report was recorded by Muhammad Bashir S.I. (P.W.13). He reached the spot and started investigation. He recovered blood‑stained earth from the place of occurrence and after preparing the injury sheet and inquest report of the deceased sent the dead body for post‑mortem examination. The three respondents, namely, Mazhar Hussain Shah, Asghar Hussain Shah and Muhammad Nawaz Shah, were arrested on 30‑7‑1982 and on the same day Asghar Hussain Shah respondent produced blood‑stained knife Ex.P.4 which was taken into possession vide Ex.P.E. On the Ist of August 1982, on the pointation of Mazhar Hussain Shah and Muhammad Nawaz (respondents) blood‑stained spear (Ex.P.5) and blood‑stained Kulhari (Ex.P.6) were recovered as per memo. Ex.P.F. and Ex.P.G.

5. The three respondents alongwith their co‑accused were put to trial before the Additional Sessions Judge, Jhang, who after recording the evidence of prosecution and the statements of the respondents and the acquitted accused, vide his judgment dated 24‑1‑1984, convicted Mazhar Hussain Shah, Asghar Hussain Shah and Muhammad Nawaz under section 302/34, P.P.C. and sentenced them to death plus a fine of Rs.3,000 each or in default to one year's R.1. each. It was also directed that a sum of Rs.5,000 be paid as compensation to the heirs of the deceased by each of them. The rest of the accused were acquitted for lack of evidence against them. The appeal filed by the respondents in the High Court was allowed and they were acquitted as per the impugned judgment.

6. We have heard Mr. M.B. Zaman, Senior Advocate, in support of the petition. He vehemently submitted that though the eye‑version account of the incident in this case has been furnished by interested witnesses but since their version has been fully supported by the recovery of the weapons of offence at the pointation of the three respondents, therefore, the High Court was wrong in discarding the evidence of the two witnesses. He further submitted that the F.I.R. in this case was lodged promptly, the motive having been established, the acquittal of the respondents by the High Court was arbitrary and unjustified. He also submitted that the deceased had as many as 29 injuries on his person, of them 3 were stab wounds, 24 incised wounds, 1 abrasion and 1 contusion. The nature of the injuries is such that it fully establishes that it were the respondents who were responsible for causing the death of Nazar Shah.

7. After hearing the learned counsel we feel that the arguments advanced in support of the petition raise a substantial question for re‑appraisal of the evidence in order to determine whether the case has been decided in accord with the principles laid down by this Court for dispensation of justice in criminal cases. Leave is, therefore, granted. Bailable warrants in the sum of Rs. 20,000 (rupees twenty thousand only) with two sureties in the equal amount to the satisfaction of the Assistant Commissioner, Jhang, shall issue against the respondents. N.H.O./M‑1134/S Leave granted.