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Criminal Petition for Special Leave to Appeal No. 297 of 1980, decided on 17th November, 1980.
(On appeal against the judgment and order of the Lahore High Court, Lahore, dated 27‑4‑1980 in Criminal Appeal No. 590 of 1976 and Criminal Revision No. 806 of 1976).
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), 5.417‑‑Penal Code (XLV of 1860), Ss. 304‑1/149 & 325/148‑‑High Court acquitting all accused persons on ground that prosecution version was improbable and doubtful while defence version appeared to be more probable‑‑Complainant contending that defence version was most improbable and in any case plan and evidence showed that accused persons killed deceased and injured prosecution witnesses at Dera of complainant which was at quite a distance from place where incident took place, as per defence version‑ Held, such aspect of case going to very root and required consideration and examination with a view to finding out if order of acquittal passed by High Court was based on safe principles of dispensation of criminal justice‑‑Leave to appeal granted to consider and examine same.
Muhammad Asif Jan, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.
Mian Ata‑ur‑Rehman, Advocate Supreme Court and Ijaz Ali, Advocate‑on‑Record for Respondents.
Date of hearing: 17th November, 1980.
Hidayat Khan, Lal Khan, Azmat Ali, Mubarik Ali, Mansab Ali, Kifayat Ali, Faqir Hussain, Nawazish and Ghulam Ali stood their trial before the Additional Sessions Judge, Sargodha under sections 148, 325, 149 and 302, P.P.C. for having committed rioting and the murder of Sher Muhammad deceased and for having caused grievous and simple injuries to Faiz Muhammad, Fazal Muhammad, Khadim Hussain and Muhammad Ismail P.Ws. in the prosecution of the common object of the unlawful assembly. The occurrence took place on 14‑7‑1974 at about 1 p.m. in Killa No. 15, Square No. 59 in the area of Chak No. 138 S.B. five miles from Police Station Sillanwali. The learned trial Court convicted all of them under section 304/1 read with section 149 and sentenced them to 5 year's rigorous imprisonment each and to pay a fine of Rs.200. He further convicted them under sections 325 and 148, P.P.C. and awarded one year's R.I. under each count.
2. The High Court disbelieved the prosecution version and acquitted all nine of them.
3. During the investigation all the accused except Ghulam Ali were arrested on 15‑7‑1974 while he was arrested on 16‑7‑1974. A hatchet P.8 found by the Serologist to be stained with human blood was recovered from Hidayat and Dangs were recovered from the remaining 8 accused.
4. At the trial the accused except Nawazish and Faqir Hussain denied participation in the occurrence. Nawazish and Faqir admitted the occurrence. Faqir Hussain took the plea that on the day of occurrence he was sitting with a Barat in the garden near Square No. 59. They heard the alarm of Nawazish Ali and rein towards the place wherefrom the cries were coming. They found Nawazish and Sher Muhammad deceased exchanging abuses on the watercourse. Sher Muhammad gave a Kassi blow on the head of Nawazish and wanted to give him another blow when Faqir Hussain and other Baratis intervened. He was injured in the melee that followed. The other injured P.Ws. also meanwhile reached the spot and 'the deceased was injured at the hands of the Baratis.
5. Nawazish stated that on the day of occurrence, his cousin Hidayat was irrigating his field during his turn of water. At about noon time he found that the flow of water had diminished. He sent Nawazish to have a round and investigate. When Nawazish reached near Killa No. 25 he found that Sher deceased had cut the water and was irrigating the said Killa. He asked him not to do so and got a Kassi blow on his head. He raised an alarm and the Baratis from a nearby garden accompanied by Faqir Hussain reached the scene of occurrence and tried to rescue him from the clutches of Sher Muhammad and were injured in the bargain.
6. The learned High Court came to the conclusion that the prosecution version is improbable and doubtful while the defence version appears to be more probable.
7. The learned counsel has stressed before us that the defence version is most improbable and in any case the plan and the evidence shows that the accused person. killed the deceased and injured the prosecution witnesses at the Dera of the complainant which is at quite a distance from the place where the Khal flows and they had no business to do so.
8. This aspect of the case which goes to its very root requires consideration and examination with a view to finding out if the impugned order is based upon safe principles of dispensation of criminal justice and we, therefore, grant leave to appeal against it. Bailable warrants in the sum of Rs.10,000 to the satisfaction of Sessions Judge, Sargodha, shall be issued.
M. Y. H. Leave granted.
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