1997 PLP 48 (SCMR)

Aftab Farrukh, Senior Advocate Supreme Court and Tanveer Ahmad Khan, Advocate‑on‑Record for Petitioner. M. Latif Khosa, Advocate Supreme Court and S. Abul Aasim Jaffari, Advocate‑on‑Record for Respondent No.

1. Date of hearing: 10th November, 1996. FAZAL ILAHI KHAN, J.‑‑‑Petitioner seeks leave to appeal against the judgment/order dated 15‑5‑1995 of learned Division Bench of the Lahore High Court, Lahore passed in Murder Reference No.266/92, in Criminal Appeal No.201/92 and in Criminal Appeal No. 189 of 1992.

2. According to prosecution the occurrence took place at about 5 p.m. on 21‑4‑1991 and its report was lodged by Faqir Hussain petitioner/complainant. It was stated in the report that the complainant alongwith his brother Bashir Ahmad (P.W.2) and Muhammad Sharif (given up) were present in the house of the complainant when Muhammad Shakeel and Tahir Hameed respondents/accused called deceased outside. After a while Zia‑ur‑Rehman (P.W.4), brother of the deceased, came running into the house and informed that the aforementioned 2 accused have picked up a quarrel with Atiqur Rehman. Hearing this the complainant and the aforementioned 2 witnesses came out of the house and saw Muhammad Shakeel and Tahir Hamid accused/respondents grappling with Atiqur Rehman, Nazir Ahmad co‑accused was also present at the spot at the relevant time. That in their presence Muhammad Shakeel accused/respondent fired with his pistol at the deceased which hit him on his back and neck who fell down on the ground. They wanted to apprehend the accused but he succeeded in leaving the spot. The injured was then taken to Civil Hospital, Sahiwal but he died immediately on reaching the hospital.

3. Motive for the occurrence was that the deceased used to desist the accused for pursuing his evil conduct and a quarrel had taken place between the deceased on one side, Muhammad Shakeel, Tahir Hamid and Nazir Ahmad on the other side which matter the complainant had patched up subsequently.

4. After completion of the investigation the accused were put on trial in the Court of Sessions Judge where prosecution led its evidence. All the three accused denied the charge in their statements under section 342, Cr. P.C. and did not produce any evidence in their defence. The learned trial Judge relying on the ocular evidence supported by medical evidence and motive found the prosecution successful in establishing the charge against Muhammad Shakeel and Tahir Hamid accused and on conviction under section 302/34, P.P.C. Muhammad Shakeel was sentenced to death by way of Qisas and ordered him to pay compensation to the legal heirs of Atiqur Rehman deceased in the sum of Rs.50,000 failing which to undergo 5 years' R.I. He was ordered to be hanged by neck till he is dead provided death sentence is confirmed by Lahore High Court. However, Tahir Hamid accused was sentenced to 20 years' R.I. and to pay compensation of Rs.50,000 to legal heirs of the deceased Atiqur Rehman or in default to undergo 5 years' R.I., per judgment dated 18‑7‑1992.

5. This judgment .was appealed against by the convicts. Nazir Ahmad accused was, however, acquitted of the charge. Faqir Hussain complainant filed a revision petition for enhancement of the sentence. All the 3 matters i.e. Murder Reference and Criminal Appeal by the convicts and the Revision Petition filed by the complainant/petitioner were heard together and disposed of by the impugned judgment. The learned High Court accepted the appeal of the convicts, set aside the judgment and order of learned Sessions Judge and acquitted both the accused/respondents of the charge. Murder Reference was, therefore, answered in negative and the revision petition dismissed.

6. Leave is granted for reappraisal of evidence and to consider, inter alia, whether the occurrence which took place on broad daylight and its report promptly lodged and there being direct evidence available, minor discrepancies and the expert evidence has rightly prevailed with the learned High Court in setting aside the order of the trial Court convicting the accused keeping in view the manner to which investigation was made. Reliance was placed by the learned counsel of the petitioner on Sardar Ali and others v. The State (PLD 1967 SC 217) and Roshan and 4 others v. The State (PLD 1977 557). Bailable warrants in the sum of Rs.50,000 with 2 sureties each to the satisfaction of District Magistrate, Sahiwal, be issued against the respondents Nos. l and

2. N.H.Q./F‑398/S ???????????????????????????????????????????????????????????????????????????????????????????? Leave granted.