2004 PLP 351 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

This petition by Muhammad Din complainant is directed against a judgment dated 11-3-2002 dismissing Criminal Appeal No.151 of 1997 whereby the acquittal recorded by a learned' Additional Sessions Judge at Kasur through his judgment dated 14-3-1997 in favour of the first six respondents was affirmed.

2. In an occurrence which had allegedly taken place at about 11-00 a.m. on 2-6-1993 which happened, to be the day of Eid-ul-Azha, one Haji Ahmed Din son of Nizam Din had lost his life while one Ahmad Din son of Ghulam Muhammad had received three fire-arm injuries on his person but had survived. Four real brothers, named Muhammad Sabir, Muhammad Hussain, Muhammad Hassan and Munawar and one Sarwar son of Palla were accused of having done the above-noticed damage at the instance of their sixth accused, namely. Hall Ahmad Din son of Walt Muhammad who also happened to be a brother of the first four accused persons.

3. The prosecution evidence led at the trial consisted, inter alia, of ocular testimony offered by the injured Ahmad Din son of Ghulam Muhammad (P.W.9), Haji Ahmad son of Jalal Din (P W.10) Ibrahim son of Ali Muhammad (P.W.11) and Muhammad Din son of Nizam Din complainant (P.W,12); the evidence of motive which had been even supported by Nizam Din Taili (P.W.8); the recovery of fire-arm weapons and the positive report of the. Forensic Science Laboratory (Exh.P.X) according to which report the two crime empties recovered from the place of occurrence had been found to have been fired from the .12 bore gun recovered at the instance of Sabir accused'.

4. The learned trial Judge discarded the evidence relating to the motive on the ground that Iqbal son of Palla was a pivotal witness in the said connection but had neither been examined by the Investigating Officer nor had he been produced by the prosecution at the trial as a witness which according to the learned trial Court meant that the occurrence had not taken place in the manner alleged by the prosecution. The further ground offered for finding the motive not proved was that enmity was always a double-edged weapon.

5. The motive alleged by the prosecution was firstly the contest of the election between Sabir accused and a son of Muhammad Din complainant in which election Sabir accused had- got defeated while the immediate motive was the quarrel which had taken place between the parties on the day of occurrence regarding the skinning of a sacrificial goat of Haji Muhammad (P.W.10) by Nizam Taili (P.W.8). The learned counsel for the complainant submits that the first part of the motive had not been denied by the defence and that the second part of the motive which was the immediate cause leading to the occurrence in question had been sufficiently established through the testimony of Nizam Taili (P.W.8), Ahmad Din son of Ghulam Muhammad (P.W.9), Haji Muhammad (P.W.10) and Muhammad Din complainant (P.W.12). Adds that in this view of the matter the finding of the learned trial Judge to the contrary was a finding based on complete ignorance of the material available on record.

6. The testimony of the injured witness of the occurrence, namely Ahmad Din son of Ghulam Muhammad (P.W.9) was brushed aside on the ground that his "behaviour' at the time of occurrence was unbelievable because after receiving the injury on his person he had neither run away from the place of occurrence nor did he turn back and had remained stationary and further that he was an uncle of the deceased who had enmity with the accused persons and finally that having one been convicted under Articles 3/4 of the Prohibition Order of 1979 he had ceased to be a reliable witness in terms of Articles 3 and 17 of the Qanun-e-Shahadat Order of 1984. Muhammad Din complainant (P.W.12) was found untrustworthy because he had also been once convicted under a Martial Law Regulation and because he was a brother of the deceased and was thus inimical towards the accused persons.

7. The learned counsel for the complainant vehemently argued that the learned trial Judge had completely misread the provisions of Articles 3 and 17 of the Qanun-e-Shahdat Order, 1984 and had grossly misapplied the same. He added that Ahmad Din (P.W.9) was an injured witness of the occurrence who had received three fire-arm injuries on his person and whose presence at the place of occurrence thus stood established beyond all reasonable doubts. Likewise it was submitted about Muhammad Din complainant (P. W.12) that he was also a natural witness of the occurrence because the occurrence in question had taken place at his Dera. He added that sufficient corroboration in the form of recoveries, report of Forensic Science Laboratory, the medical evidence and the evidence relating to motive was available on record in verification of the eye-witness account which material had been completely ignored by .the learned trial Judge.

8. Learned counsel further argued that the reasons which had weighed with the learned trial Judge in discarding other pieces of evidence were also based on mere conjectures and surmises and had no nexus with the evidence available on record.

9. The learned counsel next contended that the relevant and crucial pieces of evidence which were available on record had also escaped notice of the learned Division Bench of the Lahore High Court.

10. Having heard the learned counsel for the complainant-petitioner and having examined the available record, we are of the opinion that the case in hand does warrant a reappraisal of the entire evidence to find out whether the findings and the conclusions reached by the learned trial Judge and affirmed by the Honourable High Court were or were not correct.

11. This petition is, therefore, allowed and leave is granted for the above purpose.

12. Warrants shall issue for the arrest of the six accused-respondents which warrants shall be addressed to the S.H.O. of Police Station Khudian of District Kasur for execution and which warrants shall, however, carry an endorsement under section 76 of the Cr.P.C. directing that upon the arrest of the said accused persons they shall be released from custody if each one of them executed a bond in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned Sessions Judge, Kasur committing himself to make himself available as and when required. N.H.Q3M-941/S Leave granted.