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Criminal Petition for Special Leave to Appeal No: 80 of 1979, decided on 7th May, 1983.

(On appeal from the judgment of the Lahore High Court, Bahawalpur, dated 20th January, 1979 in Criminal Appeal No. 81 of 1976/BWP).

‑‑‑ Art. 185 (3)‑Penal Code (XLV of 1860), S. 302/34‑Appraisal of evidence‑Appraisal of prosecution evidence made by High Court in full accord with well‑settled principles of law‑Leave to appeal refused.

----S. 302/34 ‑ Evidence, appraisal of ‑‑ Prosecution case itself supporting cogent reasons for doubting claim of eye‑witnesses as to their presence at scene of offence and having witnessed crime‑Held, with such skeleton ocular evidence and defects in timing and documents contemporaneously prepared, it is not possible to hold that accused were guilty of charge framed against them beyond reasonable doubt.

Ashiq Hussain Malik, Advocate Supreme Court for Petitioner.

Atta‑ur‑Rehman, Advocate Supreme Court and Shaikh Ijaz Ali, Advocate‑on‑Record for the State.

Date of hearing : 7th May, 1983.

‑This is a petition for leave to appeal from the judgment of Lahore High Court dated 20‑1‑1979 by which a joint appeal filed by the two respondents, Ghulam Qadir and Noor Muhammad who are brothers inter se, was allowed, and in result their conviction under section 302/34, P. P. C. for which they were awarded life imprisonment was set aside.

The crime occurred on 16‑7‑1975 at about 9‑00 p. m. near Basti Kotli in the area of Khanpur Police Station, District Rahimyar Khan, and it was reported by Faqir Bakhsh, petitioner herein. In the F. I. R. Faqir Bakhsh stated that, he and his two brothers Ahmad Bakhsh (deceased) and Gaman had gone to Basti Maikan at a distance of about one mile to visit their ailing sister Mst. Jiwal. While they were returning to their village, he and Gaman heard alarm of Ahmad Bakhsh who was following them, and he saw, with the aid of torch‑light, that Ghulam Qadir and Noor Muhammad were giving hatchet blows to Ahmad Bakhsh with the result that the victim fell down and deed on the spot. His son, Latif and Khan Muhammad also reached the spat and witnessed the crime. The assailants threatened them not to intervene as they had avenged the earlier murder of their brother Yar Muhammad and ran away.

Faqir Bakhsh leaving the others to guard the dead body of his brother left, by himself, to lodge the report with the Khanpur Police Station at a distance of 9 miles, but on the way when he had just covered about two miles, he found Mushtaq Ali A. S. I. at Sehja Minor holding Nakabandi alongwith Abdul Ghafoor Lambardar and Ghulam Muhammad the village Chaukidar, and he lodged the report with him at 00‑30 a.m. on 17‑7‑1975, which was registered later on at the police station at 3‑30 p. m.

The motive of the crime was that about 15 years ago Faqir Bakhsh alongwith his brothers Ahmad Bakhsh and Gaman and five others were tried for the murder of Yar Muhammad, a brother of the accused, but they were acquitted. After that, there was litigation between the parties and one case was pending when the present occurrence took place.

Both the accused were arrested on 27‑7‑1975. On the same day, Ghulam Qadir accused led to the recovery of a hatchet, a vest and a Chaddar, all blood‑stained, from underneath the chaff lying in his Kotha. Noor Muhammad accused also led the police party and produced a blood stained hatchet, a blood‑stained vest and a blood‑stained Chaddar after digging out the articles from the ground underneath his Kotha. All these articles were proved to be stained with human blood according to the report of the Chemical Analyser.

At the trial, the prosecution produced Faqir Bakhsh and his son Latif as eye‑witnesses of the crime and sought to rely on the circumstantial evidence as to the recovery of blood‑stained weapons of offence namely hatchets and clothes at the instance of the accused and also the motive.

The Sessions Judge, Rahimyar Khan who tried the case believed the evidence produced by the prosecution and held both the accused guilty under section 302/34 and sentenced them to life imprisonment.

On a joint appeal filed by the convicts, learned Judges of the Division Bench of the High Court, on reappraisal of the evidence, held that the ‑presence of the two eye‑witnesses at the scene of crime was open to serious doubts for the reasons stated by them in details in the judgment. According to learned judges, the ailment of Mst. Jiwal was not something unusual or exceptional which demanded a call being made by all the three brothers. It is also in evidence that a wind‑storm was blowing which had impaired the visibility, and but for the torch allegedly carried by Faqir Bakhsh, no identification of the culprits was possible. Faqir Bakhsh's claim that he started for the police station all alone was also, in the opinion of the learned Judges, open to serious doubts for the reason that the night was stormy and there was no dearth of persons who could accompany him for the journey of 9 miles to the police station, for, he could not have anticipated the presence of Mushtaq Ali S‑I. at a distance of only two miles. According to learned Judges, the only other eye‑witness Latif, who is son of Faqir Bakhsh, the rest two Gaman and Khan Muhammad having beer, given up by the prosecution, was, by all standards a chance witness. Learned Judges also did not place reliance on the evidence as to the alleged recoveries of incriminating weapons of the offence and the clothes at the instance of the accused for several reasons.

Mr. Ashiq Hussain Malik learned counsel appearing in support of the petition submitted that the High Court has not fully appreciated that the two eye‑witnesses produced by the prosecution were natural witnesses of the crime and the evidence given by them was fully supported by the circumstantial evidence regarding the recoveries of the weapons of offence ante clothes at the instance of accused.

"Having gone through the record of the case, we are clearly of the view that the appraisal of the prosecution evidence made by the learned Judges of the High Court is in full accord with the well settled principles of law. The reasons given by the learned Judges for doubting the claim of the two eye‑witnesses as to their presence at the scene of offence and having witnessed the crime are very cogent and have full support in the prosecution case itself. We entirely agree with the observations of the learned Judges that with such a skeletion ocular evidence and the defects in the timing and the documents contemporaneously prepared, it is not possible to hold that the accused are guilty of the charge framed against them beyond reasonable doubt.

For these reasons, the petition is dismissed.

M.Z.M. Petition dismissed.

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