1988 PLP 1051 (SCMR)

NASIM HASAN SHAH, J.‑‑This is a petition for‑leave to appeal directed against the judgment and order of the Lahore High Court dated 6‑11‑1982 passed in Criminal Appeal No.231 of 1980 and Murder reference No.53 of 1980, whereby respondent No.2 (Muhammad Hussain) who stood convicted under section 302, P.P. C. and sentenced to death, has been given the benefit of doubt and acquitted. The facts, which form the background, are that one Atta Mohammad P.W.9 (the petitioner before us) was a resident of Jabairpur and posted in the year 1977 as Revenue Patwari in the Estate of Hardo Saba. Ghulam Mohammad deceased was his real maternal‑uncle. On the fateful day i.e. 26‑10‑1977 Atta Muhammad P.W.9, alongwith his maternal‑uncle Ghulam Mohammad left the village for Chakwal at about 8.45 a.m. and when they reached Chakwal city at about 9.15 a.m. and were on Jhelum Road, Atta Mohammad, P.W.9 sat by the road side in order to urinate while Ghulam Mohammad kept going ahead. fihen the latter reached near a shop known as "New Sarkal Cycle Works", Muhammad Hussain, respondent No.2 herein, suddenly came in front of Ghulam Mohammad. He was armed with a Chuuri and his face was muffled. After raising a Lalkara that he would teach him a lesson for Talaq to his sister he started showering Chhuri blows on Ghulam Muhammad, as a result of which he fell down and later died. Atta Mohammad, who had by now relieved himself, raised an alarm whereupon Sherbaz P.W.10, Fateh Muhammad P.W.11 and Khaksar Fateh P.W.12 reached the spot and also witnessed the occurrence. One Muhammad Safdar P.W.7 reported the matter to the Police Station which was close by whereupon Muhammad Bashir A.S.I., P.W.13 immediately rushed to the spot in a vehicle with three no lice constables. He saw the deceased lying in an injured condition by the side of the road close to the shop known as "New Sarkal Cycle Works". He also saw the accused, who was about hundred yards from him, going southwards with a Chhuri in his hand. Muhammad Bashir A.S.I. went after him, in a van, and arrested Muhammad Hussain accused, together with his blood‑stained Chhuri P.4. He was sent to Police Station Chakwal under the guard of Norasab Khan F.C. P.W.2. Muhammad Bashir A.S.I. (P.W.13) then turned his attention to Ghulam Muhammad deceased. He found him to be in a precarious condition. He was transported on a tongs. to Civil Hospital, Chakwal but as he was too weak to make a statement, this could not be recorded. However, Atta Muhammad P.W.9, who was also present at the hospital made a statement Ex. PD which was recorded at 9.50 a.m. which formed the basis of the formal F.I.R. which was recorded by the police at Police Station Chakwal at 10.10 a.m. Dr.Asghar Hamid P.W.1, on examining Ghulam Muhammad at 10.30 a.m. in the Civil Hospital, found that he had 16 incised wounds and 5 stab wounds on various parts of his body and later succumbed to these injuries and passed away at 1.02 p. m. At the trial, the prosecution produced Atta Muhammad P.W.9 to prove the motive. He also deposed to the actual incident. Sher Baz P.W.10, Fateh Muhammad P.W.11 and Khaksar Fateh Mohammad P.W.12 were also produced to furnish the ocular account of the incident but Sher Baz P.W.10 and Fateh Muhammad P.W.11 turned hostile while Khaksar Fateh Mohammad P.W.12's statement was not helpful to the prosecution case. The learned trial Court, however, relying on the evidence of Atta Mohammad P.W.9 with regard to the occurrence, the recoveries, the motive and the circumstance of the arrest of the accused at the spot convicted the respondent under section 302, P.P.C. and sentenced him to death. On appeal and reference, the learned Judges of the High Court, however, were of the view that the evidence of motive, namely, the pronouncement of Talaq upon the sister of the accused was not satisfactorily established. They also found that the evidence of Atta Muhammad P.W.9 could not be relied upon and that his presence on the spot was doubtful and concluded that in so far as the ocular testimony is unreliable and untrustworthy and could not be relied upon with any degree of conviction it was not necessary to "labour any further on the other aspects of the case". The conclusion reached was that the appellant appeared to have been convicted and sentenced wrongly and deserves the benefit of doubt. The appeal was, accordingly, accepted and the conviction and sentence passed upon him was set aside. Hence this petition for leave to appeal. We have heard Mr.Talib H.Rizvi, learned counsel for the petitioner, and also perused the record. It appears to us that the learned Judges of the High Court have not given due consideration to the special features of the case, namely, that the accused was arrested immediately after the occurrence holding a blood‑stained Chhuri in his hand from near the place of occurrence‑‑a potent circumstance establishing the identity of the accused and his participation in the crime‑‑ in respect whereof, except for a bald denial the accused did not pleed any other version as to the place, manner and time of his arrest; coupled with the circumstance that the F.I.R. was recorded at the hospital within half an hour of the incident, the medical evidence corroborated the ocular account and the recovery of the knife and blood‑stained clothes all pointed irresistably towards the guilt of the accused. The question arises, therefore, whether miscarriage of justice has not been occasioned by giving the benefit of doubt to the accused in the circumstances of this case? Leave granted. Bailable Warrants in the sum of Rs.25,000 with one surety in the like amount, to the satisfaction of the A.C.Chakwal, shall issue) against respondent No.2. M.I./A‑210/S????????????????????????????????????????????????????????????????????????????????????? Leave granted.