P L D 1992 Peshawar 154 (PLP)

Abdullah Jan Mirza for Petitioners. Muhammad Aslam Khan, A.A: G. for the State. Sardar Mumtaz Alam for the Complainant. Date of hearing: 3rd July, 1991. P.W. Sultan Khan on 29‑3‑1991 at 5 p.m. lodged a report at P.S. Havelian and charged accused Gastasab, Banaras ss/u Oalandar and Rashid son of Asghar his co‑villagers for killing his elder brother Munnawar Khan aged 70/75 years after 'Jumma' prayer on that day. The deceased who was going to graze cattle was stopped on the way near the School building by the three accused and during an altercation that took place on the alleged favour shown by Munawar Khan for his nephew Khan Dad with whom the accused had a land dispute, accused Gustasab with the butt of his shot gun, accused Rashid and Banaras with batons `dandas' started beating the deceased who on the receipt of injuries on different parts of the body fell down and died instantaneously on the spot. The incident was witnessed by Mst. Zubaida, Manzal and Ghazanfar son of the deceased. A case under section 302/34, P.P.C. was registered in the P.S. and later on the accused were arrested.

2. The Doctor during post‑mortern examination of the dead body found an abrasion 1 /2" x 1 /4" on the upper 1 /3rd of right car‑pins and two bruises 1" x 1/2", 1‑1/2" x 1/2" on the left and right side of the scrotum which was found swollen. In his opinion the death had occasioned due to pain (vasovagal shock) due to blunt trauma on the testes. He has described the injuries fatal. The doctor has mentioned the age of the deceased between 70/75 years. Mst. Zubaida, Manzal and Ghazanfar (the persons named in the F.I.R.) have supported the prosecution version during investigation.

3. The learned defence counsel has placed much weight on the point, that the police had found accused Banaras innocent during investigation and he has been as such placed in column No.2 of the challan form. The role attributed to both the accused Banaras and Rashid in the report is the same. Two persons, namely, Zamurad and Tajarat who are said to be related to accused Banaras were examined during investigation (although they are not named in the F.I.R.) and on the strength of their statement the I.O. has pleaded for innocence of accused Banaras by placing his name in column No.2 of the challan form.

4. Be that as it may, in spite of all this there would be no bat upon this Court for evaluating the material in order to assess, as to whether the investigating agency has been justified calling for innocence of the accused on the basis of some material made available on record. The Supreme Court of Pakistan in case of Haji Inayat‑ul‑Haq v. Said Mohammad Khan and another 1988 SCMR 1743 has dealt with a like situation and ruled, that the High Court could go into such an aspect of the matter because the material could clearly lx; examined by it and the opinion of the Police officer directing; that the accused be placed in column No.2 would not stand in the way of making such an evaluation. I would, therefore, be of the view, that although the police officer who made opinion about the innocence of accused Banaras on the basis of some material collected during investigation was empowered to express such an opinion, but this Court on evaluation of material placed before it would be competent to ignore such an opinion and develop a contrary view if so found from the record. Similarly, it shall be premature to assess at this stage as to whether the case would ultimately fall under section 302 or 304, P.P.C.

5. Accordingly, on a tentative assessment of all this material so far collected during investigation, I see that there are reasonable grounds for believing that the accused are connected with the commission of a non‑bailable offence which is punishable with death/imprisonment for life. The petition is dismissed and the learned trial Judge is directed to conclude trial of the case in shortest possible time. N.H.Q./1361/P ?????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.