1969 P Cr (PLP)

Raja Said Akbar Khan, Advocate‑General West Pakistan (Ch. Muhammad Ashraf, Advocate with him) instructed by Ijaz Ali, Attorney for the State. Nemo for Respondents. Date of hearing : 10th October 1968. ABDUS SATTAR, J.‑--This petition by the State is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, acquitting the respondents of the charges under sections 302/149, 323/149 and 148, P. P. C. The learned Sessions Judge, Sargodha, convicted the respondents under section 302/149, P. P. C. for the murder of Habib and sentenced each of them to transportation for life. They were also convicted under section 323/ 149, P. P. C. for having caused simple injuries to Muhammad Sher and sentenced to six months' rigorous imprisonment each. They were further convicted under section 148, P. P. C. and sentenced to rigorous imprisonment for one year each. The sentences were to run concurrently. Qadir Bux alias Qada was acquitted. The prosecution case was that on 27‑7‑64 Muhammad Sher P. W. 13 after purchasing two lambs from Ahmad Khan P. W. 11 was returning home back. He and Habib deceased were on the back of a horse arid they placed one of the lambs in front of Habib and the other lamb was taken by Muhammad Sher, who was on the back of a mare. Hayat P. W. was following them on foot. At about sunset time they reached the canal bridge on their way to their deras. When Habib and Muhammad Sher reached the middle of the canal bridge, they found Ahmad Khan, Fateh Sher, Muhammad Shera armed with hatchets and Qadir Bux armed with a stick emerging from a hidden place. Ata Muhammad armed with a stick and Ghulam Muhammad armed with a kassi also appeared. Qadir Bux caught hold of the reins of the horse of Habib and Ahmad Khan pulled him down from the horse. Fateh Sher then inflicted a hatchet injury on the head of Habib and Ahmad Khan dealt a hatchet injury on his neck. The four assailants who had come in front of the deceased then started inflicting injuries indiscriminately on Habib. Ghulam Muhammad caught hold of the reins of the mare of Muhammad Sher and Ata Muhammad inflicted a stick injury on his hands and when he fell down five or six more injuries were caused. Ghulam Muhammad and Ata Muhammad then joined the other four assailants of Habib and inflicted more injuries on him. The dead body of Habib was then dragged into the canal and thrown into the water. Hayat P. W. 14 and Baza P. W. 15, who were present at a distance of 15 to 20 karams saw the occurrence. Baza and Muhammad Sher remained at the spot and Hayat went to the dera of the deceased at a distance of a mile from the scene of occurrence and brought the relatives of Habib there. Muhammad Sher thereafter lodged the First Information Report. It is said that the motive of this murder was that Mst. Amir Bibi was betrothed to respondent, Fateh Sher but the engagement was broken and she was married to the deceased Habib. This was resented by the respondents who are relatives of Fateh Sher. The ocular evidence was furnished in this case by Muhammad Slier P. W. 13, Hayat P. W. 14 and Baza P. W.

15. The learned Sessions Judge found that Baza P. W. 15 was a dis?interested witness and Muhammad Sher was himself injured. He further found that the presence of Hayat was not only proved by the above two witnesses but also by Ahmad Khan P. W. 11 from whom two lambs were purchased by Muhammad Sher. The learned Judges in the High Court have observed that since the doctor who held post‑mortem examination on the dead body of the deceased found roti and palm dates in his stomach, the medical evidence was in direct conflict with the ocular evidence. Morever, the doctor who examined Muhammad Sher P. W. said that the injuries on him had been caused by a friendly hand. In view of these circumstances they thought that the ocular testimony required to be examined carefully in the light of the above conflict. It has been argued that there was definite evidence in the case furnished by Muhammad Sher P. W. that Habib and Hayat took a light meal at Peshiwela before they left the dera for the purchase of lambs. It is clear that the learned Judges in holding that the ocular evidence was in conflict with the medical evidence did not take into account this piece of positive evidence. Similarly with regard to the injuries of Muhammad Sher the observation that they were caused by a friendly hand appears not to be warranted by the evidence of Dr. Malik Anayatullah P. W., who examined him. This witness stated in his cross? examination that it was possible that the injuries could be caused by a friendly hand. There were as many as 3 injuries found on Muhammad Sher when he was examined on the 28th July 1964, at 6‑00 a.m. There were two contused wounds on the left temporal bone. There was one bruise 2'' x ?" on the left cheek below the lower left eyelid. It is evident that the conclusion to which the learned Judges arrived in regard to conflict mentioned above appears to be based on a misreading of the evidence the direct evidence in this case has also been doubted on the grounds that the dead body did not bear marks of dragging ; the hove marks of the horses were not noted by the investigating officer and broken stirrup pieces were not found at the spot. On A similar speculative grounds they have discarded the positive evidence of three eye‑witnesses one of whom was disinterested and another was inured during the occurrence. These features in this case call for our re‑examination of the evidence. Leave is accordingly granted. Non‑bailable warrants will issue against the respondents for their production before the A. D. M., Sargodha. Leave granted.