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Petition for Special Leave to Appeals No. 120 of 1967, decided on 2nd October 1967....

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated 27th March 1967, in Criminal Appeal No. 774 of 1965).

Art. 58(3)‑Special leave to appeal‑Granted where it was pointed out that High Court had omitted to consider relevant evidence on record.

Ijaz Hussain Batalvi, Advocate Supreme Court, instructed by Abdul Razzaque Raja, Attorney for Petitioner.

Nemo for Respondents Nos. 1 to 4.

Raja Said Akbar, Advocate‑General West Pakistan instructed by Ijaz Ali, Attorney for the State.

Date of hearing: 2nd October 1967.

This is a petition by Muhammad Shah, against an order passed by the High Court of West Pakistan by which a learned Single Judge acquitted the respondents of all charges in a murder case. The respondents had been sentenced to transportation for life each, by the trial Judge.

The prosecution story was that the deceased had lodged a complaint against the respondents under section 447 of the Pakistan Penal Code and it was pending in a Magistrate's Court. On the 10th of February 1965 the complainant and the accused persons attended before the Magistrate at Gujrat but the case was adjourned for want of time. The respondents are said to have left Gujrat earlier than the deceased. The P. Ws. arid deceased boarded a tonga of Ghulam Haider (P. W. 12), to take them back to their village Kotbala. At about 1 p.m., when they reached a place on the Grand Trunk Road in between Corali and Kalra, about 3 miles from Gujrat City, they were set upon by the respondents. Azam absconder, was armed with a gun while the rest were armed with saris, except for Inayat. The tongs, of the deceased was stopped upon which Bashir and Talib Hussain (P. Ws.), who were sitting on the back seat, got down and Akram, Ashraf and Rehmat, respondents, attacked Bashir (P. W.) and inflicted injuries on his person with their dangs. Bashir and Talib Hussain retaliated with their Bolas but apparently caused no harm to their assailants. Muhammad Shafi (P. W.) and the deceased, who were on the front seat, also got down from the tongs and tried to run away. At this stage Muhammad Azam is said to have fired a shot with his gun, hitting the deceased on his abdomen. He fell down and the tonga driver ran away with his tonga when the gun was fired. One Ali Haider was also accompanying the deceased in the tonga, but he was not cited as a witness in the case. The culprits are then said to have run away from the spot. The two injured persons, namely, Bashir (P. W.I and the deceased were put into a truck which passed by and taken to the hospital at Gujrat. The deceased died soon after.

The defence of ‑the respondents was that the parties were present outside the Magistrate's Court at Gujrat till 4 p.m., when the case was adjourned. They denied any knowledge of the occurrence and it was suggested on their behalf that the occurrence could not have taken place at 1 p.m. as alleged. It was suggested that the deceased himself did not attend the Magistrate's Court on that day.

The learned Judge who acquitted the respondents, mainly relied on certain discrepancies in the evidence of the eye‑witnesses and the fact that according to the evidence of the Magistrate and his reader, the parties had attended before him at Gujrat on that day till the Court time was over. As in those days the Court time lasted till 4 p.m. it was inferred by the learned Judge that the prosecution story about the occurrence having taken place at about 1 p.m. was incorrect.

It has been pointed out by Mr. Ijaz Hussain Batalvi that this latter finding is vitiated by omission to consider other relevant evidence on the record which clearly pointed to the fact that the occurrence must have taken place at about 1 p.m. In this connection he invited our attention to the statement of Dr. Ghulam Ahmad who had examined Bashir (P. W.) and the deceased for their injuries. According to the Doctor, Bashir had reached the hospital at 1‑45 p.m., and apparently the deceased was also taken there at the same time injured, but alive. This would clearly indicate that the occurrence must have taken place round about 1 p.m. The important material was missed by the learned Judge from consideration. It is suggested by Mr. Ijaz Hussain Batalvi that the Magistrate may have adjourned the case earlier in the day because he was to be busy with some work other than Court work, and not necessarily at 4 p.m. There is a good deal of force in this contention.

The learned Advocate‑General, who appears for the State, supports the petition. After hearing the learned counsel for the petitioner, we think this is a fit case in which the evidence should be re‑examined by this Court in the interest of justice. Leave to appeal is granted. Non‑bailable warrants will issue against the respondents through the District Magistrate.

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