1986 PLP 2413(2) (MLD)

RUSTAM S. SIDHWA, J.‑‑This is a revision petition by Khurshid Ahmad, petitioner, against the judgment of the learned Sessions Judge, Sialkot, dated 21‑9‑1971, acquitting Sardar Khan, respondent, of the charge under section 302, P.P.C,

2. The brief facts of the case are that Sardar Khan, accused and others had taken possession of a part of Shamilat Deh measuring 1 Kanals. The other proprietors of the village took exception to their act of taking illegal possession of the common property and they, including Ghulam Qadir, deceased, instituted a civil suit against Sardar Khan, accused, and a number of other defendants. In that suit, status quo was ordered to be maintained by the learned Civil Judge. In the meantime, the parties quarrelled in their village Bal and both the factions were involved in cross cases under sections 107 and 151, Cr.P.C. From one side, the accused and his seven companions were arrested and from the other side, Ghulam Qadir and Riasat Ali were arrested in the security proceedings. Both the arrested parties were later on released on bail. A day prior to this incident, Mubarik and Mahmood had manhandled Inayat Karim, the brother of the deceased, who was irrigating his field. On the fateful day at about Diger time, the women of the complainant party and the women of Sardar Khan, accused, and others quarrelled near the disputed Shamilat Deh and the situation was pacified by Ghulam Qadir, deceased, Jalal Din, Khurshid Ahmad, Lal Din and Dilawar, who were chatting and smoking a Huqa at the Haveli of Jalal Din P. W. The wife of Sardar Khan, accused, went to her house, which is situate in close proximity of the disputed Shamilat Deh. She went home while hurling abuses and she narrated the incident of quarrel to her husband Sardar Khan, accused. Sardar Khan, accused, felt enraged and he came out armed with his licensed gun and held out a Lalkara that he would give the Shamilat Deh to Ghulam Qadir, deceased. After hearing the Lalkara, Ghulam Qadir, deceased, attempted to run away towards village Ramzan Garha, which adjoins village Bal. The accused gave a hot chase and Ghulam Qadir, deceased, was cornered when he tried to seek shelter in the courtyard of Muhammad Malik. Khurshid Ahmad, Jalal Din and other witnesses ran after the accused and they also reached the courtyard of Muhammad Malik almost simultaneously and saw the accused firing at Ghulam Qadir in that courtyard. Ghulam Qadir, deceased, was hit on his left upper arm and the left side of his chest, who fell down and died instantaneously. Sardar Khan, accused, then scaled over the wall and went upstairs through the staircase of Muhammad Shari and ran away.

3. I have heard the arguments of the learned counsel for Khurshid Ahmad, petitioner, and that of Sardar Khan, respondent and have also perused the record. The learned trial Judge whilst acquitting Sardar Khan, respondent, inter alia held‑‑ (1) That the motive as set up by the prosecution had been changed in that though in the F.I.R. it was asserted that the womenfolk of the complainant party and the womenfolk of Sardar Khan, respondent, and others, had quarrelled near the mosque and they were pacified by Ghulam Qadir, deceased, and the eye‑witnesses, but at the trial it was stated that only the wife of the respondent and the wife of the deceased had quarrelled with each other. (2) That it was not understood why Sardar Khan, respondent, had chosen Ghulam Qadir, deceased, for his attack, when Lal Din P.W.12, who was also a plaintiff in the civil suit filed against the respondent and a party in the cross security proceedings was also present and was in front of the Haveli of Jalal Din P.W.11, and was allowed to escape. (3) That since Jalal Din P.W.11 and Lal Din P.W.12 were seventy‑five and sixty years old respectively, they could not have run at the same speed as the deceased so as to have been able to see the actual firing by the respondent which killed the deceased. (4) That it was not understood why the deceased ran towards the house of Muhammad Malik when he could have tried to escape by entering the houses of Khushi Muhammad etc. which were nearer. (5) That no independent witnesses, who could have seen the occurrence, were produced. (6) That the empty cartridge recovered from the spot was not mentioned in column No.3 of the inquest report and since the recovery witnesses were interested witnesses, the recovery carried no value.

4. The shift in the story as regards motive is not ex facie such as can totally displace the motive altogether or place the ocular account in such jeopardy that no credence can be given to it. The fact that the respondent did not choose Lal Din P.W.12 as victim is because his wife had not quarrelled with Lal Din P.W.12's wife. The fact that Jalal Din P.W.11 and Lal Din P.W.12 were not expected to run at the same speed as the excited respondent and the terror‑striken deceased are only hypothetical observations and the distance travelled by these two witnesses not being more than eighty yards, nothing would have prevented the witnesses from being able to see the actual occurrence. The laxity on the part of independent witnesses to come forward to give evidence is too well known to require any repetition. The fact that no independent evidence was produced cannot effect the case, if otherwise the witnesses which were produced were present and did see the occurrence. Even though Lal Din P. W.12 was a co‑plaintiff in the suit brought by him with other co‑villagers against the respondent and others and also was involved in the security proceedings, the same would not make him particularly inimical to the respondent. Even otherwise, the dispute was about the possession of a part of Shamilat Deh land and the parties were pressing their rights as public co‑owners and enmity was not such that the eye‑witnesses were only looking for an opportunity to falsely implicate Sardar Khan, respondent, as an accused for the real assailant. The occurrence was a broad daylight occurrence which occurred just opposite the house of Jalal Din P.W.11. The actual killing took place only eighty yards away from his house. Jalal Din P.W.11 has explained his presence at the spot. The recovery of the empty could not be made on the night of 6‑1‑1971. As such its presence could not be noted in the inquest report, which was prepared on that date. The findings of the trial Judge appear to be heavily over weighted with hypothetical observations and ingenious inferences. In these circumstances, interference in the revisional jurisdiction is called for and the judgment deserves to be set aside.

5. For the foregoing reasons, this petition is accepted and the judgment of the learned Sessions Judge, Sialkot, dated 21‑9‑1971 acquitting Sardar Khan, respondent, of the charge of murder is set aside. I hereby, direct the learned Sessions Judge, Sialkot, to hold a re‑trial of Sardar Khan, respondent, under section 302, P.P.C. for the murder of Ghulam Qadir, deceased. Noting herein contained shall influence the trial Judge in any way when dealing with the case, who shall apply his own independent mind to the evidence on the record and the law applicable to the matter and give his own independent judgment. S.A. Petition accepted.