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Criminal Appeal No. 48 of 1982, decided on 25th March, 1986.

(Against the judgment dated 12th January, 1981 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 973 of 1979 and Murder Reference No. 236 of 1979).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal‑‑Re‑appraisal of evidence‑‑Leave to appeal granted to complainant to re‑appraise evidence in interest of safe administration of criminal justice and to ensure that judgment of acquittal recorded by High Court was in accord with it.

‑‑S. 302‑‑Murder‑‑Trial Court believed motive and time of occurrence but disbelieved recoveries and convicted respondent‑‑High Court re‑appraised entire evidence and disbelieved motive against deceased as well as time of occurrence‑‑Presence of eye‑witnesses also disbelieved‑‑Supreme Court, on re‑appraisal of evidence found that conclusions drawn by High Court were not unreasonable‑‑Acquittal o ' respondent not violating any principle of law and being in accord with principles recognized by Courts for safe administration of criminal justice did not warrant interference‑‑Appeal dismissed.

Ahmad v. Crown P L D 1951 F C 107 ref.

Tariq Azam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Sardar M. Ishaq Khan, Advocate Supreme Court and M.A. Siddiqui, Advocate‑on‑Record (absent) for Respondents.

M. Bilal, Advocate Supreme Court for Advocate‑General, Punjab Rao M. Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing: 25th March, 1986.

‑Leave to appeal was granted to the complainant to reappraise the evidence in the interest of safe administration of criminal justice and to ensure that the judgment of acquittal recorded by the Lahore High Court on 12th of January, 1981 was in accord with it.

Sardar Khan, P.W. 6 was a contractor of Rawalpindi Municipality. He had his nephew Muhammad Bashir, deceased, working for him as a Munshi and Supervisor. Earlier he had employed Sultan Mahmood, respondent, as a mason. However, finding him. dishonest and his work unsatisfactory, he had terminated his employment. He requested a number of times for re‑instatement but the deceased as well as Sardar Khan refused it to him. He got inimical to the deceased and Sardar Khan and actually resorted to firing ineffectively at Sardar Khan on 22‑2‑1977 for which separately a case under section 307, P.P.C. was registered and is pending trial.

On the 25th of May, 1978 at about noon, Sardar Khan and Muhammad Bashir, deceased, alongwith Muhammad Akram (P.W.7) were at the site at the back of T.B. Hospital where a store was being constructed. It was mid‑day meal break. All the labourers had dispersed. Muhammad Akram (P.W.7), a labourer, was still there attending to the levelling of the ground. Muhammad Bashir deceased was resting on a cot under the shade of a wall. Sardar Khan was at another corner. At that stage, Sultan Mahmood aged 18 years alongwith his first cousin Maqsood Ahmad aged 16 years appeared on the scene. Sultan Mahmood called out that he would teach a lesson to the deceased for not effecting a compromise and re‑employing him. The deceased tried to get up from the cot when he was given a Chhuri blow on the right side of his chest by Sultan Mahmood. On receiving the injury, he leaned forward when the respondent Maqsood Ahmad inflicted knife blow on his back. On the alarm raised by Sardar Khan and Muhammad Akram (P.W.7), they fled away alongwith the Chhuris. Bashir died at the spot. Sardar Khan went to the Police Station 'B' Division, Rawalpindi, and lodged the report about the occurrence at 12‑45 p.m.

Dr. Muhammad Zafar, Medical Officer, District Headquarters, Rawalpindi on 21‑5‑1978, conducted the post‑mortem examination on the dead‑body of Bashir and found the following two ante‑mortem injuries on his person:‑

"(1) An oblique stab incised wound 2" x 1" x abdomen deep with omentum coming outside the wound in front of lower part of chest right side 4‑1/4" below right nipple, at 5 o 'clock position.

(2) An incised wound 1 " x " muscle deep on back of chest left side 10" below top of left shoulder near spine."

Muhammad Sultan, S.I. (P.W 12) attended to the investigation on 9‑6‑1978. Sultan Mahmood led to the recovery of the blood‑stained Chhuri P.1 from the graveyard of Mohallah Eidgah where it was lying buried. On 10‑6‑1978, Maqsood Ahmad led to the recovery of the blood‑stained Chhuri P.3 from the old brick‑kiln.

At the trial, both the accused denied their participation in the occurrence. Sultan Mahmood admitted that he was an employee of Sardar Khan (P.W.6) but stated that he had voluntarily given up that employment and was not seeking re‑employment. He admitted that earlier a case had been registered against him at the instance of Sardar Khan but stated that it was false.

The Trial Court considered Sardar Khan P.W. to be interested and an inimical witness, looked for an independent corroboration and found it in the statement of Muhammad Akram and believed the motive and the time of the occurrence. The recoveries were disbelieved and both the respondents were found guilty of the offence under section 302/34, P.P.C. and convicted, while Sultan Mahmood was sentenced to death and a fine of Rs.5,000, Maqsood Ahmad was awarded life imprisonment on account of his impressionable age (15 years at the time of the occurrence) and a fine of Rs.5,000.

On appeal and while seized with the question of confirmation of death sentence of Sultan Mahmood, the High Court re‑appraised the entire evidence and found that there was no particular motive against Muhammad Bashir, deceased, for which the two respondents could have taken his life ignoring the presence of Sardar Khan (P.W.6) against whom their enmity was allegedly directed. As regards, the exact time of the occurrence, the High Court found that it was a few hours before the time disclosed in the F.I.R. and this conclusion was drawn on the basis of medical opinion with regard to stomach contents, the overwriting in the Inquest report and the availability of the shade of the wall at the time when the occurrence took place. The presence of Sardar Khan and Muhammad Akram at the time of occurrence was disbelieved as their account of occurrence was not as of a truthful witness and there were improvements in their statement.

The learned counsel for the appellant has informed us at the very commencement of the hearing of this appeal that Sultan Mahmood has been killed in an encounter with the police who were executing the non‑bailable warrant of his arrest issued by this Court while granting leave to appeal to the complainant. This appeal, therefore, abates so far as Sultan Mahmood, the main culprit, is concerned. As regards, the prosecution case against the respondent Maqsood Ahmad the learned counsel for the appellant has pointed out to the strong motive which was equally directed against Muhammad Bashir who was objecting to reconciliation and his re‑employment and to the consistent and forthright statement given by the two eye‑witnesses to the occurrence.

We have re‑appraised the evidence and taken note of the grounds on which the High Court proceeded to record the acquittal of the two respondents. None of the reasons given appeared to be unreasonable or manifestly wrong which alone could as held in Ahmed v. Crown PLD 1951 F C 107 justify an interference in an acquittal. If Sardar Khan and Muhammad Bashir both happened to be present and it was Sardar Khan who had earlier been fired at and attacked then he would not have been left untouched in the occurrence. Though by subsequent improvement in the statement of witnesses it was sought to be established that the deceased was obstructing re‑employment of the main accused the case initially set out was that the tussle was going on between Sultan Mahmood and Sardar Khan who had been also earlier made the target of ineffective firing.

We agree with the learned counsel for the appellant that the contents of the stomach themselves cannot be a safe pointer to the time of death or the time of occurrence resulting in the injuries and independently it would be hazardous to base any conclusion thereon. However, in the present case, two other factors have been considered alongwith this material in order to cast a reasonable doubt on the prosecution case. Keeping in view the direction of the sun and the wall the shade of which was being utilised by Muhammad Bashir, it has been concluded that at about noon there could be no shade where the occurrence took place and the severity of the sun would be such as not to permit the deceased to rest in the open sun. This conclusion has not been shown to be incorrect or not capable of being drawn from the evidence on the record. If the occurrence had taken place an hour or so earlier there would be a number of labourers available to state about it.

Considering all aspects of the case, we find that the acquittal of the respondent does not violate any principle of law and is in accord with the principles recognised by Courts for safe administration of criminal justice. The judgment of the High Court does not require interference. The appeal is, therefore, dismissed. Maqsood Ahmad who is in prison on execution of non‑bailable warrants of arrest issued by this Court shall be released forthwith unless his detention is required in some other case.

M.I. Appeal dismissed.

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