1988 PLP 1140 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed by Muhammad Aslam petitioner‑complainant and is directed against the judgment of the Lahore High Court, Lahore whereby the appeal of Muhammad Akram respondent was accepted and he was acquitted. Muhammad Akram respondent had been charged for an offence under sections 302/452, P.P.C. and was convicted under section 302, P.P.C. and sentenced to death plus fine on two counts; as well as he was convicted under section 452, P.P.C. and sentenced to three years' R.I. plus fire by the trial Court. On appeal he was given the benefit of doubt and acquitted as stated above. The deceased in this case are Muhammad Aslam and his wife Mst. Rashida Bibi. The occurrence took place at Peshiwela on 27th August, 1983 in the house of the two deceased at Mouza Thatha Deweka, District Gujranwala. F.I.R. was lodged by the present petitioner who is brother of Mst. Rashida Bibi deceased and Sala of Muhammad Aslam deceased on the same day at 11/12 p.m. Muhammad Akram respondent was arrested four days after i.e. on 31st August, 1983. From the spot were recovered two crime empties on 28th August, 1983. At the arrest of Muhammad Akram respondent gun was recovered at his instance on 31st August, 1983 and according to the report of the fire‑arms expert the crime empties matched with the gun. However the recovery evidence had not been considered reliable for the reason that although crime empties were recovered on 28th August, 1983 and gun was recovered on 31st August, 1983 both these items were kept by the police and were not sent to the fire‑arms expert until 12th September, 1983 and 8th October, 1983. Since these items remained at the Police Malkhana together, the original crime empties could have been substituted. There are two eye‑witnesses of the occurrence namely Muhammad Aslam the present petitioner and Ghulam uncle of Mst. Rashida Bibi deceased who were stated to be present in the house of the two deceased. But they had been disbelieved by the trial Court for the reason that they were merely chance witnesses and resided at a different village and that they might have not been present at the time of the occurrence. The motive which has been relied upon by the appellate Court is that a few days before the occurrence Muhammad Aslam deceased had gone to the village of the present petitioner and Ghulam for the purchasing of a buffalo. In his absence Muhammad Akram respondent came to his house and knocked at the outside door. He had gone there with a bad intention as Mst. Rashica Bibi deceased was alone in the house. She did not open the door but climbing on the roof of the house identified the intruder as Muhammad Akram respondent and asked him what he wanted. He told her that her husband had sent him to spend the night in the house. On this Mst. Rashida Bibi deceased abused him and he went away. Mst. Rashida Bibi deceased complained about the matter to her husband Muhammad Aslam deceased who went to the village of her brother and uncle and informed Muhammad Aslam petitioner and Ghulam about the incident. They came alongwith him to complain about the incident to the father of Muhammad Akram respondent namely Muhammad Siddiq who was Lumbardar. On this Muhammad Akram respondent was abused by his father who also gave him a shoe beating. It was in this background that Muhammad Akram respondent trespassed into the house of the two deceased while the two eye‑witnesses aforementioned were sitting there and he fired two shots at the two deceased thereby killing them. It was submitted by the learned counsel for the petitioner that there was no background of previous enmity between the parties and that only Muhammad Akram respondent had been named as the single accused person in this case. Therefore there was no possibility of substitution. It was next submitted that the items of recovery might have not been sent separately to the fire‑arms expert due to the negligence of the police. But even if they had no corroborative value, seeking of corroboration was not necessary in the light of the testimony of the two eye‑witnesses who had no motive to falsely implicate Muhammad Akram respondent. It was next submitted that reasons advanced by the High Court for doubting the presence or testimony of the two eye‑witnesses in this case were not sound when satisfactory explanation had been provided in the F.I.R. about their presence in the house of the two deceased at the time of occurrence and that furthermore when they resided only at a distance of three miles from the spot and they had come to make a complaint about the earlier incident to the father of Muhammad Akram respondent. After hearing learned counsel leave is granted in this case to consider that in the absence of previous enmity whether satisfactory explanation had been given by the two eye‑witnesses in this case for their presence on the spot at the time of the occurrence, and furthermore whether disbelieving their testimony in the circumstances of the case was in accordance with the well‑established principles of safe administration of criminal justice. Warrants of arrest to be issued against Muhammad Akram respondent. M.I./M‑422/S Leave granted.