2000 PLP 1492 (SCMR)

CH. MUHAMMAD ARIF, J.

Through this petition under clause (3) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner/complainant in a murder case, has sought leave to appeal against judgment, dated 7-11-1995 made by a Division Bench of the Peshawar High Court Bench, D.I. Khan acquitting respondents Nos.1 and 2 therein.

2. Respondents Nos7t and 2 as also their brothers Faiz-ur-Rehman and Khub Nawaz Khan were tried by a learned Additional Sessions Judge, Bannu for the murder of Noor Muhammad. The prosecution case was that all the accused, in furtherance of their common intention, armed with deadly weapons caused the death of Noor Muhammad Khan and also attempted at the life of Abdul Qadir (Khan) complainant.

3. The occurrence took place on 3-1--1992 at 10-00 a.m. in 'Nullah Pani', village Ghanii Khel, within the jurisdiction of Police Station Domel, Bannu when complainant-Abdul Qadir alongwith Noor Muhammad deceased and P. Ws. Gul Zaman, Abdul Wadood and Shah Baraz were present in their lands near 'Nullah Pani' village Ghani Khel. Respondent Nos.1 and 2 namely Masoodur Rehman and Muhammad Ali alias Waleedur Rehman, fired at Noor Muhammad. As a result of the fire shot of respondents Masoodur Rehman, Noor Muhammad was hit and he fell to the ground. The shot fired by accused Muhammad Wali alias Waleedur Rehman however, proved ineffective. Thereafter, accused Waleedur Rehman, Faizur Rehman and Khub Nawaz opened fire at the complainant who was hit with the shots of accused Waleedur Rehman. Complainant also fell to the ground and at that juncture, the accused made good their escape. Besides the complainant (P.W.10) the occurrence was alleged to have been witnessed by Abdul Wadood (P.W.11), Gul Zaman and Shah Baraz (abandoned as unnecessary). Motive for the offence was alleged to be a dispute over the Nullah and trees standing thereon. The petitioner/complainant was taken to Police Station Domel, Bannu in an injured condition. He reported the matter there at 10-25 hours vide Exh.P.A. Subsequently, the dead body of Noor Muhammad was also brought to the police station and the report of the complainant was reflected in formal F.I.R. (Exh.P.A.) by A.S.-I. Hukam Khan (P.W.13).

4. After holding trial, the learned trial Court convicted respondent Masoodur Rehman for ' Qatl-i-Amd'. Observing that the prosecution evidence was not sufficient within the meaning of section 304-A, P.P.C. for awarding the punishment of 'Qisas', he was held guilty of 'Qatl-i-Amd' liable to Ta'zir punishable under section 302(b), P.P.C. He was sentenced to undergo life imprisonment on that account. Further observing that the complainant had not charged him for firing at him or any other person of complainant party with the intention of committing 'Qatl-i-Amd', it was held that charge under section 324, P.P.C. was not made out against him.

5. Accused Wali Muhammad alias Waleedur Rehman was convicted under section 324, P.P.C. and sentenced to undergo 10 years' R.I. with a fine of Rs.2,000 or in default of payment of fine to undergo further two months' S.I. He was also held liable to pay Rs.3,000 as 'Daman' to the complainant for injuries caused to him. In the event of his failure to pay 'Daman', he was directed to' be kept in Jail until such payment within the meaning of section 337-Y, P.P.C.

6. Both the convicts/respondents were held entitled to the benefit of section 382-B, Cr.P.C.

7. Accused Faiz-ur-Rehman and Khub Nawaz Khan were acquitted of the charges vide judgment, dated 7-8-1994.

8. Both the respondents appealed against their conviction as above, before the High Court. Their appeal was allowed by the Peshawar High Court, D.I. Khan Bench vide judgment, dated 7-11-1995, finding that prosecution had failed to bring home the guilt to the accused as the evidence against all the accused was indivisible and, therefore, they (the convicts/respondents Nos. l and 2) are entitled to be treated at par with their acquitted co-accused/brothers. As regards the plea that the complainant was an injured witness whose testimony should not be brushed aside easily, the learned Judges observed that such statement of an eye-witness can only lead to the conclusion that he was present on the spot but " - - - - not at all to the conclusion that whatever he tells would be true as well". Regarding the evidence about abscondence of the accused, it was observed that singly this fact " - - - - cannot lead to conviction specially when both the convicted appellants were Government servants and no police officer had gone to their place of duty - - - . "

9. We have heard the learned counsel for the petitioner and are inclined to grant leave to consider whether the prosecution evidence against the accused has been properly appreciated by the learned Judges of the High Court while directing their acquittal? So be it.

10. Let bailable warrants of arrest issue against respondents Masood-ur Rehman and Muhammad Wali alias Waleedur Rehman in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the trial Court. Q.M.H./M.A.K./A-37/S' Leave granted.