1989SCMR 374 (PLP)

ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, dated 24‑5‑1988.

2. Ishaque Masih petitioner alongwith Niamat Masih, Rehmat Masih and Mukhtar alias Mukha Masih were charged for an offence under section 302/34, P.P.C. for committing the murder of Inayat Masih. The occurrence was alleged to have taken place on 15‑1‑1985 at 9 p.m. in the fields within the area of village Rakh Khanpur near the Haveli of Noor Muhammad Police Station Chung, District Lahore. The report of the occurrence was made by Kashmira the next day in the police station. In the F.I.R. it was alleged by Kashmira complainant that Isa Masih was his paternal‑cousin and at the relevant time wa., working as a servant to Malik Noor Muhammad and resided with his family in the Haveli of his empioyer. On the evening of the fateful day the complainant accompanied by Andaryas resident of Garden Town, Lahore, came to see the deceased in the Haveli of Malik Noor Muhammad. Muhammad Amin son of Malik Noor Muhammad switched the television set on in the Baithak, the complainant. the deceased, Andaryas and Muhammad Amin were watching the television programme when at about 9 p.m. the electricity broke out, as a result of which the television went off for some time. The complainant and the other persons remained in the Baithak while the deceased went out to pass urine. After some time the complainant and others came out of the Baithak and they heard voices of some persons at some distance towards the west of the Haveli. They all proceeded towards the west and the complainant was having a torch. When the,. reached near the place of voices, in the light of the torch he saw Mukhtar Masih alias Mukha giving hatchet blow to Inayat Masih on his head who after the receipt of the injury fell down. Then Niamat Masih, Rehmat Masih and Ishaque Masih started giving blows with their Chhuris and while inflicting blows the above‑named persons were remarking that now the deceased should know the consequences of having led an information against Mukhtar the co‑accused who had been arrested by the police on the basis of the said information. On reaching the complainant party near the spot, the assailants made their good escape with their weapons. The deceased succumbed to his injuries at the spot.

3. The motive given was that a year prior to the occurrence Mukhtar alias Mukha had abducted a woman from Leiah and had come to the deceased in the Haveli of Malik Noor Muhammad where he was arrested by the police. Mukhtar Masih suspected that Inayat Masih deceased had passed on the information to the police resulting into his arrest.

4. The autopsy on the dead body of Inayat Masih was conducted by Dr. Zaheer Anjum on 17‑1‑1985 and he found as' many as six incised wounds of various dimensions and three abrasions. According to the doctor injury No. 1 was caused with a heavy edged sharp weapon while injuries Nos. 2, 3, 4, 5 and 6 were. caused with sharp‑edged weapon and injuries Nos. 7, 8 and 9 by blunt weapon Injuries Nos. 1. 3. 4 and 6 were sufficient to cause death in the ordinary course of nature individually as well as collectively.

5. Ishaque Masih petitioner alongwith his co‑accused was arrested on 23‑1 1985. Niamat Masih, Ishaque Masih petitioner and Rehmat Masih while in police. custody led to the recovery of Chhuris P. 6, P. 8 anti P. 7, respectively. The prosecution in support of its case produced Muhammad Amin (P.W. 6) and Kashmira (P.W. 7) who furnished eve account of the incident. Support was also sought from the recovery of the weapons of offence at the instance of the petitioner and his co‑accused, the medical evidence and the motive for the commission of the offence. The petitioner and all of his co‑accused denied the charge and gave different statements in support of their defence. All of them excepting the petitioner and Rehcnat Masih stated that they had been falsely implicated on account of enmity. Both Ishaque Masih petitioner and Rehmut Masih pleaded alibi. Both of them produced one witness each in their dcfcnce. The learned trial Court after examining the whole case, vide its judgmcrt dated 12‑2‑1986; convicted Ishaque Masih. the petitioner, and his three co‑accused under section 302/34, P.P.C. and sentenced each of them to life imprisonment with a fine of Rs.5,000 each or in default to two years' further R.I. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation.

6. Of the four convicted persons the appeal was filed by Niamat Masih, Rehmat alias Rehman Masih and :shaque Masih. The appeal was, however, dismissed through the impugned judgment.

7. Here before us the petition has been filed by Ishaque Masih alone. The learned counsel for the petitioner, besides vehemently decrying the prosecution evidence on other aspects of the case, referred us to the statements of the two eye‑witnesses, namely, Muhammad Amin (P.W. 6) and Kashmira (P.W. 7) who stated at the trial that they saw the assailants inflicting blows at the deceased from a distance of 10 to 15 karams. He also referred us to the site plan wherein the witnesses were alleged to have seen the occurrence from a distance of 66 karams and submitted that it was highly improbable that the witnesses would have seen the assailants inflicting injuries on the deceased from 10 to 15 karams or for that matter from 66 karams in the light of the torch. He further submitted that there is nothing in the case of the prosecution to show as to how the petitioner and his co- accused knew that the deceased at that particular hour would come to urinate at that particular place. The motive too, he submitted, is nothing but fabrication because no effort was made by the police to recover the woman alleged to have been abducted. He thus submitted that the petitioner has been falsely implicated in the case.

8. After considering the arguments of the learned counsel for the petitioner in the light of the evidence we think that the entire prosecution evidence requires re‑appraisal in this case. We, therefore, grant leave in the matter. MA.K./1‑53/S Leave to appeal granted. ,