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Petitioner: AMANULLAH KHAN VS Respondent: MAQSOOD JAVAIDHonorable Justice Saad Saood Jan
1988 S C M R 489
1988 S C M R 489
Present: Aslam Riaz Hussain, Muhammad Afzal Zullah and Saad Saood Jan, JJ
Haji AMANULLAH KHAN--Petitioner versus MAQSOOD JAVAID and others--Respondents
Criminal Petition No.89 of 1984, decided on 22nd December, 1987.
(From the order dated 20-2-1984 of the Lahore High Court, Lahore in Criminal Appeal No.104 of 1981 (Murder Reference No.63 of 1981) .
Penal Code (XLV of 1860)--
---S.302--Trial Court acquitting all accused except respondent who was found guilty of causing death of deceased--High Court, on appeal, acquitting respondent also--Leave to appeal against acquittal of respondent granted to examine contentions (i) that High Court erred in not accepting testimony of eye-witnesses, and (ii) that plea of alibi taken by respondent was not supported by any reliable evidence.
M.B. Zaman, Advocate Supreme Court and Ijaz Ali Sheikh, Advocate-on-Record for Petitioner. Nemo for Respondent No.1.
Faiz Muhammad Bhatti, Advocate Supreme Court and Ijaz Ahmad Khan, Advocate- on-Record for Respondent No.2.
Date of hearing: 22nd December, 1987.
ORDER
SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the judgment dated 20-2-1984 of the Lahore High Court whereby the conviction and sentences of death and fine of Maqsood Javaid, respondent, on a charge under section 302 of the Pakistan Penal Code were set aside and he was acquitted. The allegation against him was that he had caused the death of Aminullah, a student of F . C . College, Lahore.
2. The occurrence took place on 17-3-1978 at 10 p. m. within the precincts of Newton Hall, a hostel of the College. According to the prosecution, a day earlier some students belonging to Jamiat Tulba Islami led by Nasim Ahmad (absconder) and Waqar Ahmad, co-accused, wanted to hold a meeting in the College. Aminullah deceased and Khan Muhammad Jamali (PW.13) were opposed to the holding of the meeting within the College premises 'as the Principal of the College had placed a ban on such meetings. This led to a scuffle between the deceased and Khan Muhammad Jamali (PW.13) on the one side and Nasim Ahmad and Waqar Ahmad on the other. The Principal and the Vice-Principal intervened, separated the parties and pacified them. Nevertheless, Nasim Ahmad and Waqar Ahmad felt offended and decided to take revenge.
3. It was alleged, by the prosecution that at the relevant time Aminullah deceased, Muhammad Iqbal (PW.10), Abdul Qadoos (PW.12) and Khan Muhammad Jamali (PW.13), together with some others were sitting in the lawn of the Newton Hall. A white Toyota Wagon, driven by one Hafiz Suleman, came there and was parked near the gate of the Hall. Sixteen persons, including the respondent, armed with different. weapons including revolvers, came out of the wagon. Hafiz Suleman started firing in the air and shouting lalkaras. Waqar Ahmad and Abrar, co-accused, pointed towards the deceased and Khan Muhammad Jamali (PW.13). On this the deceased and Khan Muhammad Jamali (PW.13) started running towards their room in order to seek shelter. They were chased and surrounded in the gallery of the Hall by the assailants. Nasim Ahmad and the respondent gave dagger blows in the abdomen of the deceased while some others started beating Khan Muhammad Jamali (PW.13). Thereafter the assailants drove away in the wagon.
4. After the occurrence the deceased and Khan Muhammad Jamali (PW.13) were taken to the United Christian Hospital but the hospital authorities declined to admit them. They were then removed to Sir Gangs Ram Hospital. The deceased was examined at 11 p.m. by Dr. Aftab Ahmad. He had two stab wounds in his abdomen. Despite treatment he succumbed to his injuries after a few days. Khan Muhammad Jamali (PW.13) had five blunt weapon injuries on his person. The occurrence was reported to the police on the next day by the Warden of the hostel. In his report none of the assailants was mentioned by name.
5. After the investigations the police challaned 16 persons. Nasim Ahmad absconded before the trial while Hafiz Suleman absconded during the course of the trial. The learned Sessions Judge acquitted all the accused except the respondent whom he found guilty of an offence under section 302 alone for causing the death of the deceased. On appeal and reference, the High Court acquitted him also.
6. The respondent pleaded not guilty at the trial. He stated that he had been falsely implicated as at the relevant time he was present in Faisalabad in order to take part in a wrestling competition. He produced two witnesses in support of his version. The High Court accepted his plea of alibi.
7. The case of the prosecution against the respondent rested on the statements of three eye-witnesses, namely, Muhammad Iqbal (PW.10), Abdul Qadoos (PW.12) and Khan Muhammad Jamali (PW.13).
The learned counsel for the petitioner contends that the learned R Judges in the High Court erred in not accepting the testimony of these witnesses, one of whom, Khan Muhammad (PW.13), was injured during the course of occurrence. All these witnesses resided in the hostel where the occurrence took place and there was no reason at all why they should have falsely attributed the death of the deceased to the respondent and Nasim Ahmad. The plea of alibi taken by the respondent was not supported by any reliable evidence. According to one of the witnesses produced by the respondent in support of his plea of alibi, written record was available with regard to the wrestling competition yet that record was not produced or got summoned by the respondent at the trial.
8. The contentions raised on behalf of the petitioner need examination. Leave to appeal is granted. Let warrant of arrest be issued by the District Magistrate, Lahore, against the respondent.
S.Q./A-160/S????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.