1988 PLP 340 (SCMR)

SHAFIUR RAHMAN, J.--Not the complainant, but the widow of the deceased and the State, have by separate petitions, sought leave against the judgment of the Lahore High Court, dated 31-5-1981 whereby the conviction of the respondents under sections 302/34, 120-B and 201/34, P.P.C. was set aside on acceptance of their appeals and they were acquitted of the charges. On the 4th of February, 1976 at 2-00 p.m. the dead body of Malik Amir Bakhsh Khokhar deceased was found lying in an abandoned car outside the gate of the Nishtar Hospital, Multan. Murid Hussain, the brother-in-law of the deceased lodged the report about the occurrence the same day at 2-20 p.m. None was named as the accused in the F.I.R. The investigation of the case remained with respondent No.1 from 4-2-1976 to 11-2-1976 when a special team headed by Khawaja Muhammad Tufail (P.W.23) was sent from Lahore to take up the investigation. A number of Investigating Officers were replaced one after the other to conduct the investigation. An approver Arshad Javed (P.W.4) came forward and stated that at the behest of certain important functionaries in the province the murder of Malik Amir Bakhsh had been committed and the two respondents had shot and killed him in the premises of the bungalow used as residence by respondent No.1 and thereafter the car and the dead body had been abandoned outside Nishtar Hospital. The respondents were arrested and a licensed pistol was got recovered at the instance of respondent No.

1. The trial Court believed the motive attributed for the offence and the testimony of the approver found sufficient corroboration on record and convicted the two respondents. Qamar-uz-Zaman was sentenced to death while Babar respondent was sentenced to life imprisonment and a fine of Rs.2,000 or in default to suffer R.I. for one year. The same sentence was imposed on them under section 120-B, P.P.C. They were also sentenced to seven years' R.I. under section 201/34, P.P.C. While seized of the question of the confirmation of the death sentence of respondent No.1 and appeals of both against their conviction and sentence, the High Court re-examined the entire case afresh and came to the conclusion that the testimony of the approver did not appear intrinsically to be true and creditworthy and sufficient corroboration was not forthcoming. The benefit of doubt was extended to the respondents and they were acquitted of the charge. When the petitions came up for hearing before us, we found that the State's petition was being argued by a counsel Mr. Dil Muhammad Tarar on which we directed that it is a case which should more appropriately be argued by the Advocate-General himself. After an adjournment, we got the assistance of Mr. Khalil Ramdey, Advocate-General. In its concluding para. the High Court itself made the following observations with regard to the handling of the case:-- "Before parting with this case, we record with regret that sufficient indication exists on the file to show that there was, interference with the investigation of this case as a result of polarised forces working at different stages to promote and impede the unravelling of the truth. This case has suffered) as a result of this interference, though what would have been its result if there had been no negative interference, is difficult to predict." There are certain other features of the case which have been brought to our attention the important fact being that the initial investigation in the case was carried out by the respondent No.1 himself as Incharge of the Police Station where the First Information Report was lodged. In the statements of Kh. Muhammad Tufail (P.W.23) and Saifullah, Sub-Inspector (P.W.1,9) it has clearly come that all traces of crime found in the car were got removed by respondent No.1 by getting it washed while he was Incharge of the investigation. Saifullah, S.I. (P.W.19) also stated that six months before the occurrence respondent No.1 had asked him to assist in doing some one to death but he had not at that stage disclosed the identity. The manner in which the investigation was conducted and respondent No.1 behaved with Mst. Rashida (P.W.17) and Syed Mustafa Gilani (P.W.22) suggests that the respondent No.1 wanted to keep on to the investigation with a view to deal with the incriminating material himself. It also appears in the statements of Sajjad Hussain (P.W.18) and Saifullah, S.I. (P.W.19) that respondent No.1 had himself dictated the F.I.R. which had been signed by Murid Hussain (not produced). The mention of disappearance of ring watch and purse of the deceased which was suggested by Saifullah, S.I. (P.W.19) was ignored. It is also to be noted that the entire police investigation file was allegedly lost from the custody of police and had to be substituted by secondary material. These facts, apart from the circumstantial evidence produced at the trial, necessitate a thorough examination of the whole case over again at our level to ensure that the requirements of law for safe administration of criminal justice are observed and fully taken care of. In the circumstances, we grant leave to appeal in both the petitions. Bailable warrants in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of A.C., Multan shall issue against the respondents. M.I./R-30/S???????????????????????????????????????????????????????????????????????????????????????? Leave granted.