1996 PLP 1036 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This petition for special leave to appeal, which is directed against the judgment of the Lahore High Court, Multan Bench, Multan, dated 5-4-1995, arises from the facts that in an occurrence which took place on 17-12-1990 at about 8-45 a.m. in the area of Village Rakh Azmat Wala, Police Station, Dajal, District Rajanpur, Ahmad Bakhsh was murdered by firing of Klashnikov. Khuda Bakhsh alias ' Khudi' respondent No.2 herein and Rahim Bakhsh alias Rahiman were charged and tried by the Presiding Officer, Punjab Special Court No. VII constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, at Dera Ghazi Khan. The learned Special Judge, while acquitting Rahim Bakhsh alias Rahiman co-accused, convicted Khuda Bakhsh alias Khudi under section 302, P.P.C. and "sentenced him to death as Qisas" and further directed "to place before the High Court under section 374, Cr.P.C. the record of the case for confirmation of the said death sentence. " Appeal filed by Khuda Bakhsh respondent against his conviction and sentence was allowed and he was acquitted on 5-4-1995. Hence this petition for leave to appeal against the judgment of acquittal.

2. The occurrence took place at about 8-45 a.m. on 17-12-1990 and it was witnessed by Gul Muhammad petitioner (P.W. 4) and Abdul Sattar (P.W. 5.). Their evidence disclosed that at the time of occurrence Gul Muhammad, first informant and Ahmad Bakhsh deceased, on hearing the report of fire shots for the direction of the house of Rasool Bakhsh, rushed towards his house. At some distance from that house they noticed Khuda Bakhsh alias Khudi, respondent No.2 and co-accused Rahim Bakhsh alias Rahiman firing in the air with their Klashnikov and rifle and also raising ' Lalkara' by the former that he had come to teach a lesson to Rasool Bakhsh and Ahmad Bakhsh for getting a case of theft registered against him. Upon this, Khuda Bakhsh alias Khudi respondent fired with his Klashnikov hitting the neck of Ahmad Bakhsh who fell dead instantaneously. Both the respondent and his acquitted co-accused decamped from the spot and took refuge in the house of one Faqira after being given chase by the witnesses and other people.

3. The medical evidence shows that Ahmad Bakhsh had received a fire?arm entrance wound 1/2 c.m. x 1/2 c.m. in size going deep with inverted margins, with slight burning and scorching around on the upper part of right-?side of neck, just below right jaw, 7 c.m. below and in front of right ear with corresponding wound which was sufficient to cause death in the ordinary course of nature.

4. Khuda Bakhsh alias Khudi respondent and his co-accused were arrested the same day for the said house while the former was holding the Klashnikov which was taken into possession and sealed into a parcel. Thirty empties of Klashnikov recovered from the spot on the day of occurrence were found to match with the Klashnikov.

5. To prove its case, the prosecution produced nine witnesses. Gul Muhammad, petitioner/first informant (P.W.4) and Abdul Sattar (P.W. 5) brother-in-law of the deceased furnished eye-witness account of occurrence and supported the prosecution case. The recovery witnesses are Abdul Sattar (P.W. 5) and Syed Sher Shah, S.H.O. (P.W. 9). The report of the Arms Expert is in positive. The fate of the case depends upon the credibility of these two prosecution witnesses.

6. Khuda Bakhsh alias Khudi respondent and his co-accused when examined under section 342, Cr.P.C. professed innocence and attributed their false implication to the previous enmity between the parties.

7. The learned Judges of the Division Bench in the High Court held that the motive, besides being absolutely far-fetched, was shrouded in mystery and "was not directly linked to the deceased"; that the medical evidence was in direct conflict with the ocular account of occurrence. In this context, contradiction in distance of firing given by the two P.Ws. and Dr. Ali Asghar (P.W: 1) weighed with the learned Judges. Besides, the two eye-witnesses were held to be interested and hence unworthy of reliance. Notwithstanding the availability of the independent witnesses, failure to examine them was seriously noticed. Ultimately, on accepting his appeal, respondent No.2 was also acquitted.

8. S. M. Tayyab, learned counsel for the petitioner, submitted that the learned Judges of the High Court omitted to notice that medical evidence, at best, proved weapon used by the assailants, number and nature of injuries sustained by the deceased did not furnish any material in identifying the assailants. In this context, reliance was placed on Ahmad v. Muhammad Nawaz PLD 1989 SC

440. The learned counsel contended that the eye-witnesses of the occurrence were erroneously disbelieved as interested witnesses, in that, notwithstanding their relationship inter se or with the deceased, they were reliable witnesses and that, in any case, such a relationship per se was not enough to ignore their testimony; that the recovery of empties from the spot had matched with the Klashnikov seized from Khuda Bakhsh alias Khudi respondent on the very day of occurrence who was apprehended from the house where he had taken refuge and amply corroborates the testimony of the eye-witnesses in a day-light occurrence and lastly he placed reliance on State v. Rab Nawaz (PLD 1974 SC 87) and Mushtaq Ahmad v. Siddiqullah PLD 1975 SC 160 to contend that in the presence of dependable witnesses, the absence or weakness of the motive or holding that motive was shrouded in mystery, pales into insignificance.

9. Leave to appeal is granted to consider whether in the facts of the case the learned Judges were right in acquitting respondent No.2 under section 302, P.P.C. Bailable warrants in the sum of Rs.30,000 each to the satisfaction of the Illaqa Magistrate concerned shall issue against respondent No.2. N.H.Q./G-552`/S ??????????????????????????????????????????????????????? Leave granted.