1983 PLP 955 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑Petitions for special leave to appeal Nos. 421, 422, 423 and 424 of 1974, all moved by Abdullah Khan petitioner are connected matters and are being disposed of by a single order. A case under sections 148 and 302/149, P. P. C. was registered at Police Station, Mochh, District Mianwali, on the report of the petitioner in respect of the murder of his son Hafeezullah allegedly committed by the five respondents in these petitions on 29‑11‑1971 at peshiwela in the graveyard of Malook Shah in the revenue estate of Mochh, one mile away from the police station. The Sessions Judge, vide his order dated 21‑5‑1978 convicted all the respondents and sentenced them to death, besides a term of two years' rigorous imprisonment under section 148, P. P. C. They preferred different appeals in the High Court which were accepted by a D. B. of the Lahore High Court and the consolidated judgment is dated 3‑10‑1974. It is from this judgment of acquittal, that the petitioner has moved these petitions for special leave to appeal. All the respondents are not only related inter se but are also collaterals of the complainant party. The relevant background of the case is that on 28‑11‑1971, a little before sunset time, Samand Khan brother of Sarwar Khan respondent in Petition No. 421 was murdered. while his brother Fateh Khan was injured, at the hands of a third party of Faujdar Khan, .etc. against whom a case was registered on charge of murder,. etc. 1t is in evidence that there were blood‑feuds and criminal litigation between the aforesaid Faujdar Khan, etc. and the complainant party but sometime before the murder of Samand Khan they had patched up their 'differences. The compromise was not extended to the branch of the respondents with whom they continued to remain at daggers‑drawn. According to the prosecution, Abdullah Khan complainant (P. W. 8) along-with his brothers Sher Khan (P. W. 7). Alam Khan (P. W. 9) and his son Hafeezullah deceased joined the funeral of Samand Khan and were present in the graveyard. As the dead body of Samand Khan was being lowered into the grave, all the five respondents of whom Sarwar Khan respondent was armed with a rifle and the rest carried '12‑bore guns suddenly appeared at the scene and opened fire at Hafeezullah who died at the spot. The motive alleged was that the respondents suspected Hafeezullah of having a hand in the murder of Samand Khan. The murder of Samand Khan and Hafeezullah were followed by a third murder of Fateh Khan brother of Samand Khan at the hands of the complainant party with which we are not concerned in the instant case. The case against the respondents was registered on the report of Abdullah Khan petitioner at 2‑30 p. m. All the accused persons absconded. Khan Zaman alias Khani respondent No. 2 in Petition No. 121, Muhammad Khan respondent No. 1 in Petition No. 422 and Alam Khan respondent No. 1 in Petition No. 423 were arrested on 5‑1‑1972 while Sarwar Khan respondent No. i in Petition No. 421 and Matiullah respondent No. I in Petition No. 424 were arrested on 16‑3‑1972. There were no incriminating recoveries in the case. At the trial, except Khan Zaman respondent in Petition No. 421, no specific plea was raised by the respondents in their being more or less of denial simpliciter. The plea of Khan Zaman, however, was that he was blind from one eye on account of cataract besides incapacitation of his right arm. He examined Doctor Muhammad Siddiq, Medical Specialist of the District Headquarters Hospital, Mianwali, in his defence. The learned Sessions Judge placing reliance on the statements of the three eye‑witnesses, namely, Abdullah Khan petitioner, his brothers Sher Khan and Alam Khan, which according to him received adequate corroboration from the abscondence of the respondents, came to the conclusion that the offence of murder stood brought home to the respondents and accordingly convicted them. In appeal/reference, the considerations which weighed with the learned Judges of the High Court were that the prosecution version suffered from certain inherent improbabilities. For instance, it did not stand to reason that the deceased or his father, the present petitioner or for that matter his uncles, were wholly unaware of the suspicion entertained by the accused party that Hafeezullah deceased had a hand in the murder of Samand Khan and that all of them should have in good faith joined the funeral without apprehending any foul play. Again, it was equally improbable that instead of being present at the solemn occasion of the funeral of Samand Khan, a near relations and to participate in the rites of his burial, the respondents should have decided to kill Hafeezullah merely on the basis of a suspicion. Another consideration which led to the scepticism of the learned Judges was that despite a huge assembly of two hundred persons at the funeral of Samand Khan, the prosecution was not able to produce even a single independent witness in support of its case which was based on the uncorroborated ocular testimony of three highly interested and hostile witnesses. Yet another reason given by the learned Judges was that there was an irreconcilable conflict between the ocular and the medical evidence. The conspicuous non‑recovery of a single crime empty from the spot despite the alleged firing of 7/8 shots was also taken as yet another circumstance militating against the veracity of the prosecution version. The learned Judges were not satisfied about the physical presence of the three eye‑witnesses at the spot and accordingly finding all the respondents entitled to benefit of doubt acquitted them. In support of the petition for leave to appeal, learned counsel was not at pains to argue that the judgment of acquittal was based on misreading of evidence and that the emphasis in the High Court's judgment on deep‑rooted and long;‑standing enmity between the parties was wholly misconceived inasmuch as this was mentioned in the context of the relations between Faujdar, etc , the accused in the murder case of Samand Khan on the one band and the complainant and the accused on the other, who besides being closely related also belonged to one party. The conflict between the medical and the ocular evidence was also sought to be explained away on the basis of the statement of the Doctor. It was further submitted that the adverse inference drawn by the High Court from the non‑production of the masons who were working at the grave was also unjustified. Having heard the learned counsel quite at some length, we have not been able to find much substance in the contentions raised by him. Assuming that the learned Judges had confused the long‑standing enmity between A Faujdar Khan, etc. who were challenged for the murder of Samand Khan, on the one hand and the complainant and the‑ accused‑party on the other, erroneously mistaking it as existing inter se between the last‑mentioned two parties, even so there is ample evidence on the record to establish the existence of bad blood between them. Learned counsel could not explain away on any other hypothesis admission of the petitioner in cross‑examination that two or three years prior to the occurrence, Wali Dad son of his brother Alam Khan P. W. had fired at Sarwar Khan respondent and that in retaliation, the latter had injured Amir Abdullah and Zaki Khan the other sons of Alam Khan aforesaid. Likewise, the conspicuous absence of even a single crime empty from the spot after firing of 7 or 8 shots was also difficult to explain. On the top of it, however, were the inherent improbabilities in the prosecution case namely, the unawarencess of Hafeezullah deceased about the respondents' suspicion of his having a band in the murder of Samand Khan or alternatively his fool‑hardiness to attend the funeral in spite of his knowledge of this suspicion and lastly, the conduct of the respondents who instead of participating in the funeral rites of their elder had hastened to kill one of their kith and kin merely on the basis of suspicion. Having considered all the pros and cons of the matter, we are satisfied that the judgment of acquittal recorded by the High Court proceeded on a proper application of the well settled principles of assessment of evidence and administration of criminal justice. The petitions, therefore, fail and are hereby dismissed. Petition dismissed.