1999 PLP 40 (SCMR)

SH. IJAZ NISAR, J.

This appeal by leave of the Court is directed against the judgment dated 1-8-1993, passed by the Lahore High Court, Lahore in Criminal Appeal N.o.250/1991.

2. The facts, in brief, are that on the night of 3rd August, 1988, Anaar Khan P.W.12 alongwith Ahmad Khan deceased was sleeping at his Dera. At about 4-30 a.m. Fareed appellant armed with a hatchet, Munir son of Ahmad with Kulhari, Akrarn with Sota, Afzal and Munir son of Manik with .12 bore guns and Khalid with hatchet, came there. Fareed appellant raised a Lalkara whereupon Afzal fired a gunshot hitting the deceased on his chest and chin. The appellant inflicted a hatchet blow on his head. Munir gave a hatchet blow on his chest, Akrarn inflicted a Sota blow on his head, while Munir son of Manik gave hatchet blows on his head and neck. Bashir P.W.. 11, who was sleeping in the Verandha, tried to intervene, but he was also injured by Fareed appellant, Khalid and Akram with their respective weapons. Ahmad Khan succumbed to the injuries on the spot, whereafter the accused left the scene with their respective weapons. Bashir Ahmad P.W. became unconscious and was removed to the hospital.

3. The motive for the offence was that about 12/13 years prior to the occurrence a fight had taken place between the parties in which Fareed appellant and his brother Salehun were injured, as a result whereof a case of attempted murder was registered against Ahmad Khan deceased and his son Bashir Ahmad P.W., who were later acquitted. Anaar Khan P.W.12 reported the matter to the police by lodging the F.I.R. Exh.PK.

4. During investigation, Fareed appellant led to the recovery of blood stained hatchet P.1 on 12-10-1988, vide Memo Exh.PH, attested by Ghaus Muhammad FC. P.W.8 and Karim Nawaz, Inspector, Narcotics Staff, Sargodha, P.W.15. Salehun, (not named in the F.I.R.) also led to the recovery of blood stained Toka. During investigation all the accused nominated in the F.I.R., except Fareed appellant, were found innocent and were got discharged by the police. Fareed and his brother Salehun aforementioned were, however, challaned.

5. Feeling dissatisfied with the investigation, Bashir Ahmad P.W. filed a private complaint against all the six accused mentioned in the F.I.R. The entire proceedings were conducted in the complaint case.

6. By judgment, dated 4-3-1991, the learned Additional Sessions Judge, Blialwal, convicted Fareed appellant only, under section 302, P.P.C. and sentenced him to death plus a fine of Rs.50,

000. He was also convicted under section 307, P.P.C. and sentenced to undergo 5 years' R.I. plus a fine of Rs. 10,

000. The other accused were, however, acquitted.

7. On appeal, a Division Bench of the Lahore High Court upheld the conviction and sentence of the appellant and dismissed his appeal. He then petitioned to this Court. Leave was granted vide order dated 11-5-1994 to consider whether the evidence of two close relatives of the deceased (son and sister's son) which was not relied upon against as many as five acquitted accused could form basis for the conviction of the appellant particularly when it was the prosecution's own case that there was a background of previous enmity between the parties.

8. We have heard the learned counsel for the appellant and the learned State Counsel. We regret the manner in which the investigation of the case was carried out by the police. The complainant had nominated six accused in the F.I.R., but the police had challaned Fareed appellant and his brother Salehun (not mentioned in the F.I.R.). Both were allegedly armed with hatchets and caused hatchet injuries to the deceased and his injured son. In the post-mortem examination fire-arm injuries were also found on the person of the decreased but the police did not care to find out as to who had caused those injuries and what was the reason for disbelieving the version of the complainant party. It appears that the police including the senior officers took the investigation lightly and did not pay the required attention to it, compelling Bashir Ahmad complainant to file a private complain which too was not properly dealt with by the learned trial Court. The learned trial Court did not give any sound reasons for disbelieving the eye-witnesses against the five acquitted accused. It simply convicted the appellant because he was alleged to be armed with a hatchet during the occurrence and the same had been recovered at this pointation. It completely lost sight of the fact that it was recovered more than 2 months after the occurrence and the appellant could have easily destroyed it. No public witness was examined to prove it and both the recovery witnesses were the police officers. Though, the learned High Court did not rely on this piece of evidence, it, nevertheless, maintained the conviction and sentence of the appellant on the solitary statement of Bashir Ahmad, the injured P.W., without caring to take notice of the fact that he had been disbelieved qua five other accused persons. The learned High Court also failed to take note of the fact that he too was not a disinterested person because of the presence of enmity between the parties. The learned Division Bench also did not keep in mind the law laid down by this Court about the evidentiary value of interested and inimical witnesses, and the circumstances under which the evidence furnished by them could be acted upon. No effort was made to find out what was the basis of getting the five accused discharged by the Police during investigation and on what material Salehun, who was not nominated in the F.I.R., had been challaned by the Police alongwith Fareed appellant. The learned High Court did not discuss the presence' of fire-arm injuries on the person of the deceased and the effect of not challaning the accused to whom those injuries were attributed in the F.I.R.

9. In view of what has been discussed above, the prosecution has failed to bring home guilt to Fareed appellant beyond all reasonable doubt, we, therefore, allow the appeal, set aside his conviction and sentence and acquit him of the charge. He shall be released forthwith, if not required in any other case. N.H.Q./F-30/S Appeal accepted