1999SCMR2416 (PLP)

SH. RIAZ AHMED, J.

The petitioners seek leave to appeal against the judgment and order dated 10-4-1997 delivered by a Division Bench of the Lahore High Court, Rawalpindi Bench whereby while deciding the murder reference and criminal appeal preferred by the respondent Abdul Majeed, the murder reference was answered in the negative and the appeal was accepted and the respondent was acquitted of the charge under section 302, P.P.C

2. The prosecution case in brief as narrated by the petitioner/complainant was that on fateful day at about 5-30 p.m. he heard alarm outside his house and found that respondent Abdul Majeed alongwith Riasat had caught hold of Zubair deceased, the brother of his wife, who was abusing both of them. The deceased Zubair informed the complainant that said two persons were standing by the side of the wall of the respondent and he objected to their standing whereupon a quarrel ensued. The petitioner-complainant and Zubair deceased then came inside the house and sat in their veranda. Meanwhile Rustam also reached there. Shortly thereafter respondent Abdul Majeed armed with a revolver, acquitted co- accused Riasat armed with a gun, Khaleequzzaman armed with a hockey, Muhammad Sadiq and Muhammad Siddique empty handed trespassed into the house of the complainant, hurled abuses and raised a Lalkara that they had come to teach Zubair a lesson for hurling abuses. According to the complainant, Abdul Majeed fired two shots with his revolver hitting Zubair deceased, who fell down. The complainant proceeded to intervene when Khaleequzzaman acquitted co-accused inflicted a hockey blow on the left ear of the complainant while the other acquitted co-accused kept on hurling abuses. After completion of the investigation, respondent Abdul Majeed, Riasat, Muhammad Sadiq, Muhammad Siddique and Khaleequzzaman were sent up by the police to face their trial on the charge under section 302/34, P.P.C. The learned Additional Sessions Judge, Rawalpindi, vide his judgment dated 17-7-1993 found only Abdul Majeed respondent guilty on the said charge and thus he was convicted and sentenced to death and to pay a fine of Rs.20,000 or in default to suffer R.I. for two years. He was also convicted under section 452, P.P.C. and was sentenced to undergo R.I. for a term of 3 years and to pay a fine of Rs.5000 or in default to further suffer R.I. for six months. In the event of recovery of fine, half of the same was directed to be paid to the heirs of the deceased. The co-accused Riasat, Sadiq, Siddique and Khaliquzzaman were given benefit of the doubt and acquitted of the charge.

3. The Additional Sessions Judge sent a reference to the High Court under section 374, Cr.P.C. while the respondent also assailed his conviction through an appeal and vide orders impugned a Division Bench of the Lahore High Court answered the reference in the negative and accepted the appeal and the respondent was acquitted of the charge.

4. With the assistance of the learned counsel, we have carefully perused the entire evidence on record. In fact the learned Judges of the Division Bench of the Lahore High Court were persuaded to acquit the respondent on following grounds: (i) That despite the admission of the eye-witnesses that blood had oozed from the injuries received by the deceased, yet from the scene of occurrence the Investigating Officer did not notice any blood, therefore, the venue of the occurrence as alleged by the eye-witnesses was doubtful. (ii) That the ocular testimony in this case was in conflict with the medical evidence inasmuch as the eye-witnesses had categorically stated that the respondent had fired two shots while the post mortem conducted revealed receipt of only one shot by the deceased.

5. The reasons advanced by the learned Judges of the Division Bench were brought under scathing criticism. It was argued that in such like cases where an attack is launched with a revolver, of course the number of shots can be remembered, but it is impossible to narrate with mathematical exactitude the number of injures to be received by the target of the attack. We find force in the submission made above. Furthermore, the perusal of the post-mortem examination reveals that peritonea, diaphragm, pancreas, large intestine, liver and lower part of the right lobe had been ruptured and crushed. In the opinion of the doctor, the death occurred due to the injuries to the vital organ like liver, which led to the massive internal haemorrhage. This being so, the possibility cannot be ruled out that no blood would have fallen on the ground. No doubt the eye-witnesses stated that the deceased had fallen down and had bled, but this could be the expression of an enthusiastic eye-witness and not a liar, who had not seen the occurrence.

6. After hearing the learned counsel at some length, we are of the view that the reasons advanced by the learned Judges of the Division Bench of the Lahore High Court to acquit the respondent need reappraisal. Accordingly, we grant leave to appeal. Bailable warrants of arrest in the sum of Rs.50,000 returnable to the Sessions Judge, Rawalpindi, shall be issued against the respondent Abdul Majeed. N.H.Q./A-184/S Leave granted.