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Petitioner: BASHIR AHMAD VS Respondent: MUMTAZ AHMAD
1988 S C M R 960
1988 S C M R 960
Present: Aslam Riaz Hussain, Actg C. J., Mohammad Afzal Zullah and Javid Iqbal, JJ
BASHIR AHMAD‑‑Petitioner
versus
MUMTAZ AHMAD and 2 others‑‑Respondents
Criminal Petition for Special Leave to Appeal No.102 of 1985, dated on 22nd February, 1988.
(On appeal from the Judgment dated 28‑1‑1985 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeal No.18 of 1983/Murder Reference No.7 of 1983).
Penal Code (XLV of 1860)‑‑
‑‑S.302/34 ‑‑Constitution of Pakistan (1973), Art .185(3)‑‑Leave to appeal, grant of‑‑Re‑examination of evidence‑‑Petition against acquittal‑‑Conviction and sentences under S.302/34, P.P.C. set aside in appeal on ground that eye‑witnesses were interested and chance witnesses, prosecution case had some improbabilities and incriminating recoveries were insufficient for basing conviction‑‑Leave to appeal granted for re‑examination of evidence so as to see whether miscarriage of justice had not taken pace‑‑Warrants of arrest against acquitted accused, issued.
Ch. Khalil‑ur‑Rehman, Senior Advocate Supreme Court and Rana Maqbul Ahmad Qadri, Advocate‑on‑Record for Petitioner.
M. Saeed Baig, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for the State.
Nemo for Respondents Nos.1 and 2.
Date of hearing: 22nd February, 1988.
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from the judgment, dated 28‑1‑1985 of the Lahore High Court, Bahawalpur Bench; whereby in a case of double murder, the appeal of respondents Nos.1 and 2 was allowed and they were acquitted.
2. The prosecution case, as summed up in the petition, was as follows: ‑‑
"Bhola deceased is son of Mahabat deceased, and the petitioners were residents of Chak No.239/EB. They had no landed property in the village. Ghulam Muhammad and Hassan son of Rana owned 8 acres of land. About 21 years before the occurrence, Bhola got 5 acres of land from Ghulam Muhammad and Hassan, including the share of his sisters on mortgage for a money consideration of Rs.10,000. This was under a written agreement. The possession of the land was also delivered to deceased Bhola. Later Bhola got 3 acres of land on lease from respondents Mumtaz Ahmad and Riaz Ahmad (since dead). The lease was for a period of 5 years and the lease money fixed at Rs.7,000. This amount had been paid by Bhola to Mumtaz Ahmad and Riaz Ahmad (since dead). Deceased Bhola approached the lessors for delivery of possession of the land leased, or the return of lease money. The accused, however, neither handed over the possession of the land nor returned the lease money. This has strained the relations of the parties.
That on the day of occurrence i.e. 22‑3‑1978, Bhola deceased, his son Mahabat deceased went to Square No.47, for utilizing their turn of water, which would commence at 9‑12 a.m. As they reached Square No.47, Kills. No.15, the two respondents and Riaz Ahmad (since dead) also reached there. They were armed with Kassis. They started arguing with Bhola deceased over the amount of lease money. Bhola raised alarm saying that the accused were out to take water from their turn. He called the petitioner and his son Mahabat deceased. The two sons, Mahabat deceased, and the petitioner came to the spot. Mahabat deceased was ahead of the two. Riaz Ahmad (since dead), opened the attack, giving two Kassi blows to. Bhola, and he was done to death. As Mahabat deceased approached the place of occurrence, the two respondents attacked him with their respective Kassis. They got his neck severed of his body. The cries attracted Goma (not examined), Saleem Khan, (PW.6), and Sardar (PW.7) to the spot. Leaving Saleem Khan, Sardar and Goma with the dead body, the petitioner went to the Police Station for lodging report."
3. The defence plea was of denial by the said two respondents. According to the learned counsel for the petitioner, the third accused, namely, Riaz Ahmad who died before the commencement of the trial was, as pleaded by the defence, responsible for the occurrence.
4. The learned Trial Judge found the said respondents guilty under section 302/34, P.P.C. and awarded sentence of death to each. The sentence of fine was also imposed.
5. A Division Bench of the High Court treated eye‑witnesses as interested and chance witnesses and, after considering some improbabilities in the prosecution case, came to the conclusion that the eye‑witness account did not inspire confidence. Accordingly incriminating recoveries were not treated as sufficient for basing conviction thereon. However, they were also found not to be free from doubt.
6. After hearing the learned counsel, we consider it a fit case for re‑examination of evidence so as to see whether miscarriage of justice has not taken place. Accordingly, leave to appeal is granted.
7. Warrants of arrest shall be issued against Mumtaz Ahmad and Daray Khan, respondents, for appearance before this Court.
M.I./B‑43/S???????????????????????????????????????????????????????????????????????????????????????? Leave granted.