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Petitioner: NOOR ELAHI VS Respondent: Ch. ZAFAR-UL-HAQHonorable Justice MUHAMMAD YAQUB ALIA. K. Brohi,Chaudhri Nazir Ahmad Khan,Khawaja Abdul Waheed
1969 P Cr
1969 P Cr. L J 221
[Supreme Court]
Present: Hamoodur Rahman, Muhammad Yaqub Ali and Abdus Sattar, JJ
NOOR ELAHI-Petitioner
Versus
Ch. ZAFAR-UL-HAQ AND OTHERS-Respondents
Petition for Special Leave to Appeal No. 323 of 1967, decided on 17th October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 26th October 1967, in Criminal Appeal No. 661 of 1966).
Penal Code (XLV of 1860)--------S. 302-Complaint case and challan case proceeding simultaneously-Special procedure laid dowry by Supreme Court-Courts below thereafter differing in their conclusions and High Court acquitting accused-Special leave to appeal granted by Supreme Court to re-examine evidence in interest of safe administration of justice.
A. K. Brohi, Senior Advocate Supreme Court (Rustam Sidhwa, Advocate Supreme Court with him) instructed by Siddiq & Co., Attorneys for Petitioner.
Chaudhri Nazir Ahmad Khan, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Respondents Nos. 1 and 2.
Khawaja Abdul Waheed, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.
Date of hearing: 17th October 1968.
ORDER
MUHAMMAD YAQUB ALI, J.-----On 13th April 1963, at about 2 p.m. Muzaffar Khan was shot dead in Mohalla Chaudhri Warris Khan, Rawalpindi. The F. I. R., was lodged at Police Station `C' Division within twenty minutes by Nur Elahi, petitioner, who claimed to have witnessed the occurrence and charged that the deceased was proceeding towards his house when Ikramul Haq, respondent, at the instigation of his father Chaudhri Zafar-ul-Haq, and brother Nawazul Haq fired pistol shots at the deceased which felled him to the ground and caused instantaneous death. Mst. Pukhraj, P. W., who was attracted by the alarm entreated the accused to spare the deceased, but Chaudhri Zafar-ul-Haq called her a bitch and gave her soti blows. Two other persons, namely, Faiz-ud-Din and Fazal Elahi were said to have seen the occurrence. As a result of the investigation conducted by the police and confirmed by the C. I. D., it was reported that Muzaffar Khan had died at the hands of one Banaras Khan and another Ch. Ikramul Haq, but Ch. Zafar-ul-Haq and his sons were falsely implicated by Nur Elahee informant. The names of the latter were accordingly inserted in column II of the report under section 173 of the Code indicating thereby that no case for prosecution was made out against them.
Nur Elahee thereupon filed a private complaint under section 302/34, P. P. C. against Ch. Zafar-ul-Haq and his sons Ikramul Haq and Nawazul Haq which was heard along with the inquiry under Chapter XVIII of the Code of Criminal Procedure against Banaras Khan and the other Ikramul Haq. A question then arose at the commitment stage as to how the complaint case and the challan case were to be dealt with. The matter being brought before the High Court a learned Single Judge gave certain directions which militated against section 239, Cr. P. C. Finally this Court in Criminal Appeal No. 9 of 1965 decided on 12th November 1965, laid down a special procedure for the trial of the two cases.
The Additional Sessions Judge, Rawalpindi, following the special procedure laid down by this Court found:-
(i) That Muzaffar deceased had developed illicit relations with. Mst. Jamila Khatoon (daughter of Jehandad and niece of Zafar-ul-Haq, accused) and had thereafter married her and this annoyed the accused party. Thus the motive for the offence stood clearly established ;
(ii) That the eye-witnesses of the Challan case, namely, F. C. Abdur Razzaq, C. W. 1, Muhammad Iqbal, C. W. 5, Muhammad Ashraf C. W. 6, Muhammad Bashir, C. W. 7 and Muhammad lqbal, C. W. 8, wore not at all present at the time of the occurrence and their statements were false and that F. C. Abdur Razzaq, C. W. 1, had been put forward as a false witness by his superior officers;
(iii) That the supporting witnesses of the Challan case, namely, Muhammad Iqbal Khan, D. S. P., C. W. 3 and Ch. Ali Muhammad S. H. O., C. W. 4, the officers of the local Police who had carried out the investigation, had acted partially in favour of the accused party and their statements being false and biased, could not be accepted as reliable and that Ch. Muhammad Siddiq, D. S. P., Crime Branch, C. W. 2, and Ajmair Shah, Inspector Crime Branch, C. W. 10, who took over investigation later from the local police, took little interest in the investigation of the case and straightway endorsed the view of the local police and thus their statements were of little value and help to the accused;
(iv) That the statements of the defence witnesses, namely, Capt. Aurangzeb, D. W. 3, Mirza Muhammad Shafi, D. W. 4 and Ch. Maula Dad Chohan. D. W. 5, were false and contained material discrepancies and that the demeanour of D. Ws. 3 and 4 clearly showed that they were not telling, the truth and that D. W. 5 apart from being closely related to the accused, was blantantly untruthful;
(v) That the four eye-witnesses of the occurrence, namely, Noor Illahi, P. W. 3, Fayaz-ud-Din, P. W. 4, Fazal Illahi, P. W. 5 and Mst. Pukhraj, P. W. 6, were natural and probable witnesses of the occurrence; that even though P. Ws. 4, 5 and 6 were related to the deceased, they had no motive to falsely implicate the accused; that Mst. Pukhraj, P. W. 6 bore the stamp of injuries on her person and her presence at the spot could not be doubted; that Noor Illahi, P. W. 3 was neither related to the deceased nor to the other P. Ws., and was totally a disinterested witness; and that; in short, all these four eye-witnesses, were disinterested and impartial and the occurrence having taken place in broad day-light, there was no question of any mistaken identity.
It was consequently held that "the accused had not acted in furtherance of any common intention and the murder of Muzaffar deceased was attributable to the individual act of Ikram-ul-Haq accused and the causing of simple injuries with blunt weapon to Mst. Pukhraj, P. W. 6 was the individual act of Ch. Zafar-ul-Haq accused." Ch. Ikramul Haq was Sentenced to death under section 302, P. P. C. and Ch. Zafar-ul-Haq to pay a fine of Rs. 500 under section 323, P. P. C.
On appeal by Ch. Ikramul Haq and Ch. Zafar-ul-Haq, respondents, the High Court has set aside their respective convictions and sentences inter alia on the grounds that the trial Judge had approached the case in an illegal manner by discussing the defence evidence I set and by recording the statement of Ch. Ali Muhammad, Sub-Inspector Police, as a Court witness and thereby enabled the prosecution to cross-examine its own witnesses which caused prejudice to the accused. The evidence, by three prosecution witnesses in the Challan case was preferred to the direct evidence in the complaint case as a contused wound caused with a blunt weapon was found on the head of the deceased which found support from the first Set of witnesses that Banaras Khasi had caused a hockey blow on the head of the deceased which the second set of witnesses had mentioned only fire-arm injuries. The eye-witnesses in the complaint case were also held to be interested being Parachas by caste. Reliance was also placed on the statement of the draftsman that when he visited tire spot to prepare the plan the eye-witnesses in the complaint case did not point out to him the places from which they had allegedly seen the firing.
It is contended by Mr. Brohi that in drawing their conclusion the learned Judges in the High Court omitted from their consideration the peculiar feature of the case, namely, that according to the complainant party the local police had from the very beginning tried to shield Ch. Zafar-ul-Iraq and his sons and for this purpose put up a false case against Banaras Khan and another Ikramul Haq. It was also ignored that under the procedure laid down by this Court the prosecution witnesses in the challan case were to be examined as Court witnesses in the complaint case. Grievance was also made that the reason that all the eye-witnesses were Parachas was not sufficient to disbelieve them. They were found by the trial Judge to be natural witnesses and not shown to bear any enmity to Ch. Zafar-ul-Haq and leis sons. Lastly, it is urged that the medical evidence was not inconsistent with the account given by the eye-witnesses as the head injury of the deceased was likely to have been caused by the fall in the street.
As special procedure for the trial of the complaint case and the challan case was laid down by this Court and the Courts below have differed in their conclusions, we are of the opinion that it falls to this Court to re-examine the evidence for safe administration of criminal justice in this case. Leave to appeal is granted. Bailable warrants against the respondents to issue.
Leave granted.