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Criminal Petition No.83 of 1980, decided a 12th June, 1983.

(Against the judgment of the Lahore High Court, Lahore, dated 8‑12‑1979 passed in Criminal Appeal No.408 and Murder Reference No.124 of 1978).

‑‑‑Art.185(3)‑‑Penal Code (XLV of 1860), 5.302/34‑‑Criminal Procedure Code (V of 1898), S.417‑‑Murder‑‑Acquittal‑‑Leave to appeal granted to consider contention that reasons given by High Court for disbelieving eye‑witnesses were not found to justify acquittal of accused‑respondents.

M.B.Zaman, Advocate Supreme Court with Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Sh. Nasim Hassan, Advocate Supreme Court with S. Wajid Hussain, Advocate‑on‑Record for Respondents Nos. 1 to 3.

S.S. Qureshi, Advocate Supreme Court with Ijaz Ali Sh., Advocate -on‑Record for the State.

Date of hearing: 12th June, 1983.

This petition is directed against the judgment of the Lahore High Court, Lahore, dated 8th December, 1979, acquitting the three respondents.

2. Allah Wasaya, Ghulam Muhammad and Khadim Hussain respondents were tried for the murder of Abdur Rahman. All of them were convicted by the learned trial Court under section 302/34, P.P.C. Allah Wasaya was sentenced to death and a fine of Rs. 2,000 (1 year's R.I. in default) while the remaining were sentenced to imprisonment for life and a fine of Rs. 2,000 each (1 years' R.I. each in case of default). On appeal the High Court acquitted them by its impugned judgment.

3. The occurrence in this case took place at 5 p.m. on 2nd May, 1976 at Chah Haryawala Dakhali, Thatha Gurmani, District Muzaffargarh The F.I.R. was lodged by Mehar Hussain (P.W.8) father of the deceased at 8‑30 p.m. on the same evening. It was recorded by Muhammad Yousaf (P.W.12) S.H.O. Police Station Mahmud Kot, Muzaffargarh. After recording the F.I.R. the S.H.O. reached the spot and apart from blood‑stained earth recovered .32 bore empties (P.7 and P.8) and one .12 bore empty (P.9). After the accused were arrested the blood‑stained hatchet (P.10) was recovered from Allah Wasaya, .32 bore pistol (P.11) from Khadim Hussain and 12 bore gun (P.12) was recovered from Ghulam Muhammad. Out of these the hatchet was found to be stained with human blood and the 12-bore pistol recovered from Ghulam Muhammad matched with the .12 bore empty cartridges found from the spot.

3(a) Motive for the offence is stated to be that about 10 years earlier Asghar brother of Allah Wasaya (accused) was murdered and the accused suspected Abdur Rahman deceased for the said murder.

(b) The prosecution story briefly, is that on 2nd May, 1976 the complainant went to Chah Haryawala Thatha Gurmani to borrow tractor where his son‑in‑law was thrashing his wheat while be was there, the three accused also turned up. Allah Wasaya accused had a hatchet and the other two co‑accused were armed with the pistols of .32 bore and 12 bore with which they murdered Abdur Rahman (deceased) and injured Ghulam, Hyder, P.W.9.

The post‑mortem examination revealed 11 injuries on the person of the deceased caused by three kinds of weapons, namely, .32 pistol .12 bore gun and hatchet. Ghulam Hyder (P.W.9) was also hit by e .12-bore pellet during the incident. His injury is described by the doctor as "a round gun‑shot wound of entry 1/4" x 1/4" on left side of the face, between left ear and left eye".

During the cross‑examination the doctor ruled out the possibility of this injury being self‑suffered or caused by a pointed iron bar. It was a bone deep injury and the pellet had apparently fallen down.

At the trial, the prosecution relied on the ocular testimony of Mehar Hussain (P.W.8) the first informant (father‑in‑law of the deceased) Ghulam Hvder (P.W.9), Khair Muhammad (P.W.10) and Ghulam Qasim (P.W.11). It also relied on the afore‑mentioned recoveries, the medical evidence and the motive.

As already mentioned the trial Court convicted all the three accused but the High Court acquitted them by the impugned judgment.

4. The learned counsel for the petitioner submitted that in view of the unequivocal opinion of the doctor to the contrary the learned Judges of the High Court have erred in holding that the injury on the temple of Ghulam Hyder (P.W.9) was not a gunshot injury but self‑suffered injury. He argued further that the learned Judges had erred in not relying on the testimony of P.Ws. 9,10 and 11, who are tenants of the deceased and are not in any way related to him. They are natural witnesses and have good reason to be present on the land where the occurrence took place. The High Court, therefore, wrongly disbelieved them. He pointed out that, in fact, the learned Judges have not discussed the testimony of Khair Muhammad (P.W.10) and Ghulam Qasim (P.W.11) at all. He also pointed that the reasons given by the learned Judges o the High Court in paragraph 11 (P.30 of the paper‑book) of the judgment for disbelieving the eye‑witnesses are not sound.

5. We have also heard the learned respondent caveator in reply. We are of the view that the afore‑mentioned contentions raised by the petitioners require consideration. Leave is, therefore, granted for the said purpose.

Non‑bailable warrants shall issue against all the three respondents.

S.Q. Leave granted.

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