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Criminal Petition for Special Leave to Appeal No. 18‑K of 1984, decided on 15th January, 1985.

(Against the judgment of the High Court of Sind, dated 5‑2‑1984 passed in Criminal Appeal No. 86 of 1983 and Criminal Revision No. 109 of 1983).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Penal Code (XLV of 1860), S. 302/149‑‑Appeal against acquittal‑‑Contention of petitioner being that parties were neighbours; were known to each other intimately; no possibility of mistaken identity of assailants existed there was no previous hostility between parties and eye‑witnesses not likely to involve accused falsely; presence of complainant proved by fact of injuries received by him; complainant not shown to have any previous enmity with accused party which could be said to have induced him to involve accused falsely or to attribute fatal injury to him and that no intrinsic flaw has been found in testimony of eye‑witnesses‑ Submission of petitioner appearing to have sufficient force so far as acquittal of at least one of accused concerned‑‑Leave to appeal granted to reappraise prosecution evidence to consider as to whether or not High Court was justified in disbelieving prosecution evidence in relation to that accused.

Badrudduja Khan, Advocate Supreme Court and Nazir Ahmad Siddiqui, Advocate‑on‑Record for Petitioner.

S. M. Abbas Advocate‑on‑Record for the State.

Date of hearing: 15th January, 1985.

‑This petition by Ashiq Hussain complainant is directed against the acquittal of respondents 1 to 5 of the charge of murder by the High Court.

2. The occurrence in this case took place on 29‑6‑1978 at 8‑p.m. in front of House No. 4/15 Liaqatabad, Karachi, wherein the respondents are alleged to have attacked and killed Shakuruddin (deceased) and injured his son Ashiq Hussain P.W. 1. The F.I.R. was lodged at 10‑30 p.m. on the same night by Ashiq Hussain aforesaid.

3. Both the parties are neighbours. It is alleged that at about 8 p.m. while Ashiq Hussain was watching T.V. in his house, a stone came from the adjacent house hitting his younger sister Yasmeen. Ashiq Hussain went out and made an inquiry about it, where after Mst. Sharifan (a lady of the family of the other side) started abusing him. Soon thereafter all the accused‑respondents came out. They were armed with Dan das, except Muhammad Bashir (respondent) who was armed with a hatchet. They attacked Ashiq Hussain petitioner (P.W. 1). In the meanwhile Ashiq's father, Shakuruddin (deceased), also came out and on the instigation of Siddiq respondent, Muhammad Bashir respondent, gave a hatchet blow on his (Shakuruddin's) head. Thereafter, the other respondents also inflicted Danda blows on Shakuruddin, resulting in his death at the spot. Ashiq Hussain (an injured witness) and the dead body of Shakuruddin were taken to the hospital. The hospital authorities informed the S.H.O. Police Station, Liaqatabad (Karachi), who rushed to the hospital and recorded the statement of Ashiq Hussain P.W., which formed the basis of the F.I.R.

The accused‑respondents were arrested on 30‑6‑1978, but on incriminating recoveries were made at their instance. At the trial, therefore, the prosecution relied mainly on the testimony of Ashiq Hussain P.W. 1 (who was himself injured during, the incident‑‑son of the deceased) Noor Muhammad P.W. 2 (brother‑in‑law of the deceased) Iqbal Muhammad P.W. 3 (who was not named in the F.I.R.), and Muhammad Akram P.W. 4 (another son of the deceased). It also relied on the evidence of motive and the medical evidence which inter alia revealed a sharp‑edged injury on the head of Shakuruddin (deceased) and presence of injuries, caused by Danda blows on the person of Ashiq Hussain complainant.

4. The trial Court believed the prosecution evidence and convicted all the accused‑respondents under sections 302/149, P.P.C. and sentenced each of them inter alia, to imprisonment for life. It also sentenced Muhammad Rafiq respondent under section 324, P.P.C. and sentenced him, inter alia, to 2 years' R.I.

5. All of them filed an appeal before the High Court which acquitted all the accused of the aforementioned offences. Feeling aggrieved Ashiq Hussain petitioner (complainant) has filed the present petition.

6. Learned counsel for the petitioner portended before us that the parties were neighbours and knew each other intimately; as such there was no possibility of mistaken identity of the assailants. He submitted further that there was no previous hostility between the parties before the incident mentioned above as the motive for the attack, and that the eye‑witnesses were therefore not likely to involve the respondents falsely. He submitted further that, in any case, the presence of Ashiq Hussain P.W. (complainant who had himself sustained injury during the incident), cannot be disbelieved, nor had he been shown to have any " previous enmity with the accused party which can be said to have induced him to involve the accused falsely or to attribute fatal injury to Muhammad Bashir respondent. He also submitted that no intrinsic flaw has been found in the testimony of the eye‑witnesses and it could, therefore, 'be believed without corroboration, specially in view of the fact that no previous enmity existed between the parties.

7. We feel that the above‑mentioned submissions have sufficient force, at least as far as the case of acquittal of Muhammad Bashir respondent, is concerned. We, therefore, grant leave to reappraise the prosecution evidence to consider as to whether or not the High Court was justified in disbelieving the prosecution evidence in relation to Muhammad Bashir respondent.

The petition is dismissed with regard to the remaining respondents.

Bailable warrants in the sum of Rs.20,000 with two sureties each in the like amount to the satisfaction of the trial Court, shall be issued against Muhammad Bashir respondent.

M. Y. H. Leave granted

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