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Petitioner: ABDUL SATTAR VS Respondent: NASEER AHMEDHonorable Justice SHAFI-UR-RAHMAN
1988 S C M R 222
1988 S C M R 222
Present: Muhammad Haleem, C.J., Shafiur Rahman and Zaffar Hussain Mirza, JJ
ABDUL SATTAR--Petitioner
versus
NASEER AHMED and others--Respondents
Criminal Petition No.435 of 1981, decided on 21st November, 1987.
(Against the judgment and order of the Lahore High Court, Lahore, dated 12-10-1981 in Crl. Appeal No. 336 of 1979 and Crl. Revision No.200 of 1980 (Murder Reference No.125 of 1979).
Penal Code (XLV of 1860)--
---S.302--Appreciation of evidence--Trial Court convicting the accused under 5.302, P. P. C. and sentencing them to death--High Court, after reappraisal of entire evidence, coming to conclusion that there existed enmity between the parties on account of dispute over land and that presence of eye-witnesses and recovery was doubtful, acquitting the accused--Motive not being very strong or otherwise apparent careful appreciation of other evidence found to have been undertaken by both the Courts--Trial Court explaining infirmities noticed by it in prosecution case and High Court considering those infirmities alongwith others and coming to a different conclusion--Facts enumerated in judgment of High Court showing that the view taken therein was in conformity with the principles well-recognized for the safe administration of criminal justice and the benefit of doubt on that account must be extended to the respondents--Leave to appeal against acquittal refused.
Aftab Farrukh, Advocate Supreme Court instructed by Masud Akhtar, Advocate- on-Record for Petitioner.
Maqbool Elahi Malik, Senior Advocate Supreme Court and Ch.Mehdi Khan Mehtab, Advocate-on-Record for Respondents Nos.1 to 2.
Kh.Shaukat Ali, Advocate Supreme Court and Ejaz Ahmad Khan Advocate-on-Record for Respondent No.3.
Date of hearing: 21st November, 1987.
ORDER
SHAFIUR RAHMAN, J.--Abdul Sattar, the complainant, seeks leave to appeal against the judgment of the Lahore High Court dated 12-10-1981 whereby the two respondents were acquitted of the charge of murdering his son Nisar.
The petitioner had purchased agricultural land from one Ismail in Chak No.4 TDA P.S. Gunjial, District Sargodha. His own son-in-law, the respondent No.1 was a tenant of the same. He obtained possession of the land. In that land sugarcane crop and wheat crop were standing and cut by the tenant and Nisar, the son of the complainant according to their respective shares. This had aggrieved Naseer respondent and at about 9.00 p.m. on 7-5-1977 when Abdul Sattar was returning with his son Nisar and one Habib (P.W.10) they were surprised by Naseer and Rashid a brother of Naseer who put to death Nisar by firing at him with a pistol. A report about the occurrence was lodged at 4.30 a.m. on 8-5-1977. From the spot two empties were recovered which matched with the licensed pistol (EX.P.1) of Naseer Ahmed. The respondents denied their participation in the crime and alleged false implication.
The trial Court noted that Abdul Sattar and Habib the two witnesses in the case had suppressed the fact of their relationship but held that that was "no criteria whatsoever to cast any doubt on their testimony as eye-witnesses to the main case." Similarly, one of the recovery witnesses of the revolver Karim Bakhsh was declared hostile but the other evidence was considered sufficient to prove the recovery. Finding the case against the respondents proved they were both convicted under Section 302, P.P.C. and sentenced to death.
While seized of the question of confirmation of death sentence and the appeal filed by the convicts, the entire evidence was reappraised by the High Court and it came to the conclusion that there existed in fact enmity between the parties on account of the dispute over the land and its crops that the presence of the eye witnesses was doubtful and so was the recovery. The learned Judges in the High Court held as follows:-
"In any case, from the perusal of the record the ocular testimony appears to be interested and the P.Ws. had a motive to falsely implicate the appellants merely on the ground of suspicion."
The recovery of the pistol was dealt with in the following words:-
"So far as the recovery of licensed pistol P.I. from Naseer Ahmad appellant is concerned, there is no attesting witness of this recovery made on 20-5-1977 except Ch.Nisar Ahmad S.I. P.W.9. Out of the other two witnesses Muhammad Ramzan was not produced and Karim Bakhsh Lambardar P.W.5 had turned hostile. The defence version is that licensed pistol P.I. of Naseer Ahmad appellant had been produced by some of his relatives before the police which had taken possession of the same on 8-5-1977. The case of the defence further is that in the light of the evidence discussed above, it was doubtful if two crime-empties P.7 and P.8 and one live bullet P.9 were picked up from the spot on 8-5-1977."
There were other infirmities too which were noticed and the benefit of doubt was given to the respondents who were acquitted of the charges.
Mr. Aftab Farrukh, Advocate, the learned counsel for the petitioner, has contended that in view of the close relationship between the complainant and the respondents it is unlikely that a false charge would be levelled against them. Besides, there was an ample scope for identification of the culprits as a torch was being carried by the complainant and he had disclosed the fact that he had identified them in its light. The dispute over the cutting of the crop was also established and believed by the two Courts. The very fact the father in-law has brought the charge against the son-in-law for murdering his son, should evoke credibility.
Where the motive is not very strong or otherwise apparent the other evidence requires careful appreciation and that has been undertaken by both the Courts. Even the trial Court had notice certain infirmities in the prosecution case but explained them. The High Court considering those infirmities alongwith others noted by came to a different conclusion. The facts enumerated in the judgment and reproduced above do show that the view taken is in conform it with the principles well-recognized for the safe administration o criminal justice and the benefit of doubt on that account must b extended to the respondents.
We do not find any merit and the leave to appeal is refused.
S.Q./A-134/8 Leave refused.