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Criminal Petition No. 410 of 1979, decided on 17th April, 1983.

(Against the judgment of the Lahore High Court. dated 19‑7‑1979 passed in M. R. No. 35/78 and Cr. A, No. 1094/1977).

Constitution of Pakistan (1973)‑

‑‑ Art. 185 (3)‑Leave to appeal‑Murder‑Appeal against acquittal Contention that reasons given by High Court for disbelieving recovery of hatchet not sound and if recovery believed same would be sufficiently corroborated by ocular testimony‑Eye‑witnesses though related to deceased but nothing on record to suggest having motive to falsely implicate accused and as such not interested witnesses and their evidence should be accepted without corroboration‑Held: Leave to appeal granted to see whether High Court considered prosecution evidence in accordance with well‑established principles of appreciation of evidence.

Muhammad Rafiq Khan Chohan, Advocate Supreme Court with Sh. Masud Akhtar, Advocate‑on‑Record for Petitioner.

Sh. Ijaz Ali, Advocate‑on‑Record for Respondents.

Date of hearing : 17tb April, 1983. ‑

ASLAM RIAZ HUSSAIN, J

.‑Nazir respondent was tried by the Additional ,Sessions Judge, Gujrat, for the murder of Khalid Mahmood Akhtar, brother of Khadim Hussain complainant (P. W. 6), by the judgment dated 29‑11‑1977.

The occurrence in this case took place at about 6 p.m. on 29‑4‑1974 and the F. I. R. was lodged by Khadim Hussain complainant (P. W. 6) brother of the deceased (who was an eye‑witness) at Police Station Kuthlia Sheikhan, District Gujrat.

The motive for the occurrence is that about 5/6 days before the present incident Nazir accused respondent was standing in front of the complainant's house. His brother (Khalid Mahmood deceased) aged 16/17 years forbade him to stand there. This led to exchange of hot words between them. The matter was, however; hushed up at a result of intervention of some of the co‑villagers. But Nazir respondent nursed grudge against the deceased.

At Peshiwela on the day of occurrence, the deceased was present in his house along-with his brother Khadim Hussain complainant, Rehmat Khan and Muhammad Sharif, P. Ws. The deceased felt the call of nature and went out towards the garden of Amir Khan in order to ease himself. Nazir accused‑respondent, who was already present there armed with a hatchet attacked him, shouting, lalkaras. Khalid Mahmood Akhtar (deceased) ran for his life but the accused chased him. On raising the alarm the afore mentioned P. Ws. also came out of their house and saw that Nazir accused respondent overtook the deceased and gave him hatchet blow on his head as a result of which he fell down. The accused then fled away along-with the hatchet. Khalid Mahmood Akhtar died at the spot. As already mentioned the matter was reported to the police by Khadim Hussain complainant (P. W. 6). During the investigation, the Investigating Officer recovered the hatchet (P. 5) used by the accused in the crime from near the garden. On examination it was found to be stained with human blood.

The post‑mortem examination of the deceased revealed one incised injury measuring 3 x 1/2" x 2 " on the top of head interloposperior, with the skull cut underneath.

3. At the trial the prosecution retied on the testimony of Khadim Hussain (P. W. 6), brother of the deceased and Rehmat Khan (P. W. 7) uncle of the deceased. The third eye‑witness namely Muhammad Sharif, who was an independent person and

had supported the prosecution case before the police in his statement under section 161, Cr. P. C. appears to have been won over when the trial began after 3 years. He was, therefore, given up. The prosecuton case, rests on the ocular testimony of the aforementioned two eye‑witnesses, coupled with the recovery of the blood‑stained hatchet (P. 5) ; the evidence of motive and the medical evidence.

4. The learned trial Judge convicted Nazir accused‑respondent vide his judgment dated 30‑11‑1977 and sentenced him, inter alia to death, but on appeal the High Court acquitted him vide the impugned judgment.

Hence the present petition.

5. We have heard the petitioner's counsel as well as the learned State counsel and have also gone through the impugned judgment. The High Court appears to have looked at the testimony of the eye‑witnesses with suspicion on the ground that the two eye‑witnesses could not have seen the occurrence from a distance of 160 yards and that the occurrence must have finished by the time they came out. The High Court also took the view that the eye‑witnesses being close relations of the deceased implicit reliance could not be placed on their testimony the recovery of the blood‑stained hatchet (Exh. P. 5) was also found to be doubtful.

The petitioner's counsel submitted that the reasons given by the High Court in paragraph 12 of the impugned judgment for disbelieving the recovery of the hatchet are not sound and that if the recovery of the hatchet was believed it would have sufficiently corroborated the ocular testimony of Khadim Hussain and Rehmat Khan P. Ws. He submitted further that although these two eye‑witnesses were related to the deceased but there is nothing whatsoever on the record to suggest that they had any motive to falsely implicate him and as such they are not interested witnesses in the accepted sense of the said expression. He, therefore, submitted that their testimony could be believed even without corroboration, but that in the present case sufficient corroboration is forthcoming in the shape of recover of the blood‑stained hatchet; which is proved through reliable evidence an that it is further supported by the evidence of motive and the medical evidence.

6. We are of the view that these contentions need consideration and consider it to be a fit case for reappraisal of evidence to see whether the High Court has considered the prosecution evidence in accordance with the well‑established principles of appreciation of evidence in criminal cases. Leave is, therefore, granted for the said purpose.

Non‑bailable warrants be issued against Nazir accused‑respondent.

M. A. K . Leave granted.

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