1989SCMR619 (PLP)

Date of hearing. 5th December, 1988. NASIM HASAN SHAH, J.‑‑This is an appeal, by leave of this Court, against the judgment and order of the Lahore High Court dated 2‑5‑1979 passed in Criminal Appeal No.640 of 1977 and Criminal Revision No.767 of 1977. The appellant feels aggrieved by the acquittal of Sher Zaman and Inayatullah (respondents 1 and 2 herein). According to the prosecution, there was an altercation between Muhammad Saeed on the one hand and Suleman and Parvez, the conductors of Bus No.3891, on the other, over the payment of bus fare of a sick child of Muhammad Saeed, whom he was holding in his lap while travelling in the bus on 2nd of May, 1970. As they alighted from the bus at about 3 p.m., near the bus stop of village Mowara , there was a quarrel between the two which developed into a fight and there was an exchange of abuses and hurling of brick‑bats at each other as a result of which Muhammad Saeed was injured. He was removed, on a cot, to another place from where he had to be taken in another bus to the hospital. Here the respondents and Oamar Zaman (an absconder) and the owners of the bus arrived there in a car armed with fire arms. Sher Zaman and Inayatullah fired from their weapons, namely, the gun and the pistol but the shots were ineffective and, thereafter, Oamar Zaman fired his pistol causing a fatal injury to Abdul Ghaffar, a close relative of Muhammad Saeed, who had come in the meantime to take him to the hospital. The incident was witnessed by the deceased's father, Khan Muhammad, Aurangzeb the son of Muhammad Saeed and Ashiq Ali, a maternal‑cousin of Khan Muhammad. The statement of khan Muhammad was recorded in the Civil Hospital at 7‑10 p.m. by the S.H.O. of the Police Station Kahuta, District Rawalpindi. The respondents were arrested on 14th of May, 1972, while Qamar Zaman was taken into custody on 18th of May, 1972. They were allowed bail in the first instance but later on the bail order was recalled but Qamar Zaman absconded and his whereabouts are not known till to date. However, the other two respondents were booked for the murder of Abdul Ghaffar and the trial Court upon an appraisal of the ocular testimony of Khan Muhammad, Aurangzeb and Ashiq held them guilty for the murder of the deceased Abdul Ghaffar and vide judgment dated 16‑6‑1977 convicted Sher Zaman and Inayatullah under section 302 read with section 34, P.P.C. and sentenced them to imprisonment for life. Further, the trial Court rejected the defence plea that it was Muhammad Ramzan son of Gulab Khan who was the real culprit. On appeal, the High Court, however, exonerated Sher Zaman and Inayatullah from any criminal liability on the reasoning that there were two versions of the incident; one implicating the respondents and the other involving Muhammad Ramzan and in the circumstances Sher Zaman and Inayatullah were entitled to the benefit of doubt. The grievance of the counsel for the appellant is that the High Court, in its judgment, has not ronsidered the implications of the ocular testimony and has not discussed it at any length. Further, the counsel contended that the High Court was in error in holding that there were two versions of the incident, when in fact there was only one version and the High Court had made this erroneous view the. basis for the acquittal of the respondents without examining the facts of the case. Kh. Ahmad lqbal, learned Advocate for the appellant, has taken us through the evidence and in his submissions prayed for the setting aside of the judgment of acquittal passed by the High Court. It appears that as a result of re‑investigation conducted by the D.S.P. Iftikhar of C.I.A. Rawalpindi, it was opined that Muhammad Ramzan son of Gulab Khan be challaned as the person who fired at Abdul Ghaffar deceased while the respondents and Oamar Zaman etc. were considered to be innocent. But this was obviously a trumped up version to favour the real culprits. Subsequently, as is evident from the statement of Ch. Ghulam Hussain P.W.20, the real culprits were properly identified as Qamar Zaman (absconder) and Sher Zaman and Inayat Ullah (respondents 1 and 2 herein), whereas Ramzan accused was got discharged because he was found to have no hand in the occurrence and that the P.Ws., who were implicating Ramzan accused, were in fact the close relatives of the three challaned accused persons namely Qamar Zaman (presently absconder) and Sher Zaman and Inayatullah. Thus, the impression of the learned Judge in the High Court that there were two versions of the occurrence was unfounded and this had become quite evident at the trial as the challan against Ramzan was cancelled. The eye‑witnesses gave a consistent version in which the respondents herein and Qamar Zaman (absconder) were mentioned as the real culprits. Clearly Muhammad Ramzan was introduced as an accused by the defence to cause confusion and divert the investigation into wrong channels. The learned counsel for the State has also submitted to the same effect and we agree with him. Neither Raja Muhammad Anwar, Senior Advocate nor Mr. M. A. Siddiqui, Advocate‑on‑Record on behalf of respondents Nos. 1 and 2 have appeared and we have been deprived of the benefit of their point of view. However, on careful perusal of the record we are satisfied that the judgment of the learned Single Judge of the High Court is incorrect and unsustainable and must, therefore, be set aside. The result is that this appeal is allowed. The judgment and order of the High Court dated 2‑5‑1979 is set aside and the judgment and order of the learned B trial Court dated 16‑6‑1977 is restored. The respondents 1 and 2 shall be taken into custody forthwith to serve out their sentence. M.A.K./K‑90/S Appeal accepted.