1982 PLP 387 (SCMR)

(On appeal from the judgment of the Lahore High Court dated 16‑3‑1980 in Cr. A. 728/79, M. R. No. 230/79 and Cr. Revision No. 743/79).

Art. 185(3)‑Leave to appeal‑[Murder‑case]‑Certain features of case deserving closer scrutiny in order to ensure safe and sound administration of criminal justice‑Leave to appeal granted. Ch. Muhammad Abdul Wahid, (Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Cr. P. 18‑R/80). Nemat Khan, Advocate Supreme Court with lqbal Ahmad Qureshi, Advocate‑on‑Record for Petitioner (in Cr. P. 209/80). M. A. Bajwa, Advocate Supreme Court for Respondents (in both appeals). Date of hearing : 10th June, 1981. SHAFI‑UR‑REHMAN, J.‑Arif Hussain, his uterine brother Muhammad Ashraf, their cousin Abid Hussain and one Asghar Ali Shah were tried for committing the murder of Abrar Hussain on 11‑7‑1978 in village Ibbenwali, Police Station Sadar, Wazirabad, District Gujranwala. The trial Court convicted the first three and sentenced them to death acquitting Asghar Ali Shah. While seized of the murder reference and a criminal revision against the acquittal of Asghar Ali Shah the learned Judges in the High Court maintained the conviction of Arif Hussain and Muhammad Ashraf and also sentence of death but acquitted Abid Hussain and maintained the acquittal of Asghar Ali Shah. Two petitions have been filed one by the complainant seeking leave to appeal against the judgment in so far as it records the acquittal of Abid Hussain and Asghar Ali Shah and the other petition hat been filed by the two convicts who have been sentenced to death. This order disposes of both the petitions,

2. There were two versions of motive and occurrence one given by the prosecution and the other by the defence. The prosecution alleged that about two and a half years before the occurrence Abrar Hussain deceased had injured Muhammad Ashraf, a case under section 324, P. P. C. registered, had remained pending for about two years but only three months before the occurrence a compromise had been effected but the ill‑will continued and accounted for a concerted attack on the deceased on that day. According to the defence the deceased had illicit relations with the wife of Muhammad Ashraf and that on one such visit he was attacked and injured by the inmates of the house while the accused persons were away from the haveli.

3. Out of three witnesses produced at the trial Mukhtar Ahmad (P. W. 5) happened to be a brother of the deceased. Sube Shah (P. W. 4) was the father of the deceased but the trial Court accepted Ghulam Muhammad (P. W. 3) as an independent witness and based the conviction of the three on his statement as supported by the other witnesses. Asghar Ali Shah was acquitted because be had been attributed only a lalkara. The learned Judges in the High Court found that Ghulam Muhammad P. W. could not be taken to be an independent witness for he had his own axe to grind. Considering all the eye‑witnesses to be interested they looked for corroboration and found in the case of Arif Hussain and Muhammad Ashraf from the recovery of clothes which were stained with human blood.

4. There are certain features of the case which deserve closer scrutiny in order to ensure safe and sound administration of criminal justice. For example the recoveries are said to have been effected a week after the arrest of the convicts and the recovery witnesses being interested the Investigating Officer alone has been believed for proving it. The prosecution case that the deceased was attacked while he was near the village pond and after being injured removed well inside the Haveli of the accused and then the witnesses were allowed to remove the dead body from inside their haveli without any resistance required consideration in the light of the defence plea that the deceased had been attacked and injured while in the haveli of the accused. There was no trail of blood found from the pond to the haveli to support the prosecution case.

5. The learned counsel for the complainant has not pressed his petition m so far as the acquittal of Asghar Ali Shah is concerned, but as we are allowing leave to appeal in the petition filed by the convicts we also allows leave to appeal in the petition filed by the complainant against the acquittal of Abid Hussain so that the entire case is reconsidered in the light of the observations made. Bailable warrants of arrest in the sum of Rs. ten thousand with two sureties in the like amount shall issue against Abid Hussain returnable to Assistant Commissioner, Wazirabad. Leave granted.