1983 PLP 601 (SCMR)

M. A. Bajwa, Advocate Supreme Court instructed by Ijaz Ali, Advocate- on‑Record for the State. Date of hearing : 23rd June, 1976. MUHAMMAD HALEEM, J:‑Respondents No3. 1 and 2 have tried for the murder of Saee Muhammad , convicted under section 302 read with 34 of the Pakistan Penal Code and sentenced to transportation for life and to pay a fire of Rs. 3,000 o: .n default to undergo rigorous imprisonment for six months, by the, Sessions Judge, Sargodha by judgment dated 13‑6‑1972. The respondents appealed and a learned Single Judge of the Lahore High Court by judgment dated 4‑2‑1972 acquitted the respondents Nos. 1 and

2. The petitioner who is the uncle of the deceased now seeks special leave to appeal against that judgment. The prosecution case was that on 26‑3‑1970 at Peshiwela, Saee Muhammad was proceeding to, his village Nasirpur Kalan and had still to cover a distance of one acre more when the respondents, who lay in ambush in : nearby wheat crop emerged from there and attacked the deceased, Noora was armed with a Toka while Umra with a hatchet. Respondent No. 1 inflicted a Toka blow on the neck of Saee Muhammad from behind who in order to save himself from further blows, tar, towards the wheat crop but the two respondents chased him and inflicted further blows with their weapons. 'the deceased expired at the spot. Thereafter the two respondents decamped from there towards their Dera. The incident was witnessed by the petitioner, Muhammad Ali, Muhammad Bakhsh and Ali Muhammad. The petitioner, leaving Boota, a Chowkidar at the spot, hastened to Police Station Midh Zanjha where he lodged the (first information report the same day at 6 p. m. The motive assigned was that six years before the incident Nazra, a cousin of Saee Muhammad deceased; had abducted Mst. Rasoolan, a sister of respondent No. 1 who had a suspicion that the deceased had a hand in it :vas living with him at that time. Further, on being approached his sister, the deceased declined to do so and got her married to Nazra in village Kala Shadyan, District Gujrat. There was, therefore, bad blood between the parties and they .were bound down to maintain peace for one year, by an order dated 27‑7‑1964. On being produced by Karam Ali on 27‑3‑1970 at the Dera of Sultan Ali in village Nasirpur Kalan, the blood‑stained clothes of both the respondents were seized from their person. Later, they produced the crime weapons. These articles were reported to be stained with human blood. At the trial the prosecution examined Muhabbati (P: W. 9), Muhammad Ali (P. W. 10), Ali Muhammad (P. W. 11) and also led evidence in regard to the seizure of the incriminating articles such as the blood‑stained clothes and the weapons. The trial Court accepted the ocular testimony, the evidence as to the seizure of incriminating articles and the motive attributed for killing the deceased and convicted the respondents as aforesaid. A learned Single Judge of the High Court held that the witnesses were closely related to the deceased and, therefore, their ipse dixit could not be relied upon unless there was strong corroboration. This remark equally applied to Ali Muhammad who was said to be a disinterested witness at the trial and his evidence was also treated on the same footing. Finding no corroboration, the learned Judge held the case against the respondents was highly doubtful and acquitted them. The learned counsel for the petitioner has urged that the learned Single Judge has not considered the evidence in regard to the incriminating articles such as the clothes and the weapons which provided strong corroboration as to the participation of such respondent. It is true that there is no treatment of the circumstantial evidence in the judgment and the learned Single Judge has gone only by the relationship and the enmity to hold that the. witnesses were unreliable and in the absence of corroborative evidence, the prosecution had failed to establish its case beyond reasonable doubt. The non‑consideration of‑ the circumstantial evidence could lead to possible miscarriage of justice and we would accordingly grant leave to appeal to examine the evidence afresh. Non‑Bailable warrants to issue against the respondents Nos. 1 and 2, returnable to the District Magistrate, Sargodha. Leave granted.