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Petitioner: DAULAT HUSSAIN VS Respondent: ABDUL KHALIQ
1970 P Cr
1970 P Cr. L J 1049
[Supreme Court]
Present: Muhammad Yaqub Ali, M. R. Khan and Wahiduddin Ahmad, JJ
Mirza DAULAT HUSSAIN‑Petitioner
Versus
ABDUL KHALIQ AND ANOTHER‑Respondents
Criminal Petition for Special Leave to Appeal No. 199 of 1969, decided on 26th February 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 4th April 1969, in Criminal Appeal No. 737 of 1968/Murder Reference No. 209 of 1968).
Penal Code (XLV of 1860), S. 302‑Eye‑witnesses stating accused to have fired at back of deceased whereas medical evidence disclosing injuries on chest and abdomen; F. I. R., lodged not by an eye‑witness but by person receiving information from another; plea of alibi raised not disproved‑Held: Circumstances justified High Court in acquitting accused.
Ch. Muhammad Abdul Waahid, Advocate Supreme Court instructed by M. B. Khizar Tamimi, Senior Attorney for
Nemo for Respondent No. 1.
Kamal Mustafa Bokhari, Assistant Advocate‑General West Pakistan instructed by Ijaz Ali, Advocate‑on‑Record for
Dates of hearing: 25th and 26th February 1970.
ORDER
WAHIDUDDIN AHMAD, J.‑Respondent 'Abdul Khaliq was convicted under section 302, P. P. C. by the learned Sessions Judge, Jhelum by his judgment dated the 20th September 1968, and was sentenced to death for the murder of Akhtar Hussain deceased. His conviction was set aside by a Division Bench of the West Pakistan High Court, Lahore, in Criminal Appeal No. 737 of 1968 (Murder Reference No. 209 of 1968), by judgment dated the 4th April 1969. The petitioner seeks leave to appeal against the said order of the High Court.
The prosecution story is that Mst. Akhtar Begum P. W. 23, the sister of Abdul Khaliq, was originally married to one Muhammad Khan. She developed illicit intimacy with Akhtar Hussain deceased, a Mughal of village Mota Gharbi of Police Station Dina, District Jhelum. As a result of this Muhammad Khan divorced her and she married to Akhtar Hussain. Respondent did not like this 'marriage. He, 'therefore, came down from Karachi where he was employed as a Shunting Porter in the Humpyard, Railway Station, Karachi Cantt. and on the 27th of August 1967, at 6‑00 a.m., fired three shots with a pistol at Akhtar Hussain deceased as he came out of the bath room attached to the village mosque, resulting in his instant aneous death. The occurrence was witnessed by Muhammad Sadiq P. W. 17, Khadim Hussain P. W. 18, Salamat Beg P. W. 19 and Sanawar P. W. 21. The mother of the deceased, Mst. Inayat Begum P. W. 22 also saw the petitioner running away from the scene of occurrence. The First Information Report, Exh. P. A. was recorded at the Police Station at 7‑15 a.m. at a distance of four miles from the place of occurrence at the instance of Shafqat Hussain complainant P. W. 24, a cousin of the deceased who had settled at village Dina. Respondent was 'arrested on the 2nd October 1967, by Malik Abdul Qadir, H. C./A. S. I. P. W. 25, from Humpyard, Railway Station, Karachi Cantt.
The learned Judges of the High Court did not accept the testimony of the eye‑witnesses and accepted the plea of alibi advanced by the respondent.'
Ch. Muhammad Abdul Waahid learned counsel for the petitioner, contended that the account given by the eye‑witnesses should have been accepted by the High Court. In this connection he referred us to the appraisal of the evidence made by the learned Sessions Judge. We have considered the evidence produced by the prosecution and are satisfied that the learned Judges of the High Court were quite justified in rejecting it. The evidence of the prosecution shows that Khadim Hussain and Salamat Beg P. Ws. went to take bath in the ghusalkhana of the village mosque where there are four bath‑rooms and on reaching there Khadim Hussain p: W. found Akhtar Hussain deceased drawing water from the well of the mosque. Thereafter, the deceased went to the bath‑room and took his bath. He" then went out of the bath‑room and was followed by the respondent who shot at him from behind in front of the village mosque. The medical evidence; however, shows that the deceased received injuries on his chest and abdomen. Thus the eye‑witnesses' account does not tally with the medical evidence. Apart from this, the First Information Report also was lodged in this case not by a person who was an eye‑witness of the scene of occurrence but who had heard it from Ghulam Qadir Chowkidar. Further it is difficult to believe that the respondent had been keeping close watch on the activities of the deceased from Karachi. It is in evidence that the deceased came to the village in question only about two days before the date of occurrence and the learned Judges of the High Court were perfectly justified in observing that "there is nothing to suggest as to how the petitioner was able to keep a close and constant watch on the movements of the deceased so as to rush to the village from Karachi within a day of his arrival. What were the sources of his information, the means of his communication, the mode of his travel so as to explain his precise and punctual arrival at the time, have remained a closely guarded secret".
In the circumstances of the present case, the learned Judges of the High Court were fully justified in accepting the plea of alibi raised by the respondent. It is in evidence, that the respondent was employed as a Shunting Porter in the Humpyard, Karachi. He was marked present in the diary, Exh. P. M. and muster‑sheet, Exh. P. M. secured from the Station Master Mirza Azizullah P. W. 3, vide Memo. Exh. P. C., which show that the respondent was present on duty from 6th of August to the 1st of September 1967. The prosecution made an attempt to show that these were forged entries but they could not succeed to prove it. In our opinion, the High Court was quite justified in relying on this piece of evidence in. favour of the respondent.
After carefully considering the facts of the present case we are satisfied that the High Court has considered all the evidence produced by the prosecution and was quite right in rejecting it. There is no force in. this petition, which is dismissed.
Petition dismissed.