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Petitioner: GHULAB VS Respondent: MUHAMMAD SADIQ
1988 S C M R 524
1988 S C M R 524
Present: Muhammad Yaqub Ali, Sajjad Ahmad Jan and Salahuddin Ahmed, JJ
GHULAB and others--Petitioners
versus
MUHAMMAD SADIQ and others--Respondents
Petition for Special Leave to Appeal No,42-P of 1970. decided on 16th April, 1971.
(On appeal from the judgment and order of the Peshawar High Court, Peshawar dated the 3rd November, 1970. in Criminal Appeal No.3 of 1970).
Penal Code (XLV of 1860)
--S.307 read with Ss.148, 149 & 392--Leave to appeal--Attempt to murder--Evidence--Trial Court convicting four out of eight accused and acquitting four others--High Court accepting appeal of convicted accused and rejecting State appeal against acquittal and complainant revision petition for enhancement of sentences of convicted accused --Contentions of petitioner's counsel (i) that Trial Court had given no reason whatever for disbelieving the prosecution case against acquittal accused, and (ii) that the High Court had not appreciated the prosecution and defence versions in their proper perspective in giving preference to version of accused to that of prosecution--Leave to appeal granted to consider whether the acquittal of accused had beer recorded on correct legal principles and proper appreciation of evidence as required by law.
Sved Ghazanfar Ali Shah Bokhary, Advocate Supreme Court instructed by Abdul Waheed Khan, Advocate-on-Record for Petitioners.
Sardar Fakhre Alam, Advocate-General, N.-W.F.P. for Respondents.
Date of hearing: 16th April, 1971.
ORDER
SAJJAD AHMAD JAN, J.--The respondents 8 in number, were tried for offences under section 307/148/149/392, P.P.C. by a Magistrate First Class, Maripur, exercising Section 30 powers. He convicted the respondents 1 to 4, namely, Muhammad Sadiq Aurang zeb, Muhammad Iqbal and Banaras. The first two, namely, Muhammad Sadiq and Aurangzeb, were convicted under section 307, P.P.C. and sentenced to 5 years' R.1. and a fine of Rs.500/- or, in default. further one year's R.I. The third, Muhammad Iqbal, was convicted under section 325, P.P.C. and sentenced to 2 years' R.I. and a fine of Rs.200/-, or, in default further 6 months' R.I. He was additionally convicted under section 323, P. C. and sentenced to 6 months' R.I. on that charge. The sentences were made to run concurrently. Banaras, respondent No.4 was convicted under section 324. P.P.C. and sentenced to one year's R.I. The rest of the respondents, namely, Yaqub, Muhammad Sarwar, Pervaz and Malik Said Rasul, were acquitted of all the charges. The respondents 1 to 4 filed an appeal to the High Court against their conviction and sentences, and the State filed art appeal against the acquittal of the other respondents. A revision petition was also filed by the complainant side for the enhance ment of the sentences of the accused-respondents 1 to 4. All these were disposed of by a common judgment of a Division Bench of the Peshawar High Court dated the 3rd of November, 1970 whereby the learned Judge accepted the appeal of respondents Nos.1 to 4 and rejected the State appeal against the acquittal, as well as the criminal revision for enhancement of the sentences of the respondents, which was filed by the complainant party. The decision of the High Court has been challenged in the present petition for special leave to appeal.
The occurrence took place on the 21st of July, 1967, in the land of village Qazian owing to dispute between the parties over a piece of land which each was (2!aimtng for itself. A civil suit between the wife of Said Rasul, respondent, and Muhammad Ismail P.W.4, was pending in the High Court at that time. As a result of this incident, while P.Ws. Ghulab, Ghulam Ghaus and Ismail were injured on the side of complainant, Iqbal, respondent, was injured from the side of the accused. The injured persons from the complainant party, besides other injuries, also bore fire-arm injuries, whereas Muhammad Iqbal, respondent had only suffered two bruises, which were simple. At the trial, while the prosecution had alleged a concerted attack by the accused party to gain forcible possession of the land belonging to the complainant, Muhammad Iqbal gave a counter version to the effect that at the time of occurrence, he and his uncle, Said Rasul, and his sister's son Abdul Razaq, went to their fields as usual and found that Gulab, Ghulam Ghaus and Ismail, P.Ws. were ploughing the fields belonging to Said Rasul. On the protest of Said Rasul, the aforementioned P.Ws. rushed towards Said Rasul and Iqbal. P.W. Ghulam Ghaus was armed with a gun, while Ismail and Gulab had sticks. Ghulam Ghaus aimed a gun, but before it could be fired, Iqbal pounced upon him and grappled with him, on which Gulab and Ismail started giving him stick blows. Said Rasul, respondent, at that time fired from his licensed gun in the exercise of the right of self-defence. The gun carried by Ghulam Ghaus, P.W. was snatched and with its butt and blows were given to Gulab, Ghulam Ghaus and Ismail. Abdul Razaq had also fired a shot at the complainant party to scare it away.
The learned Judges in the High Court seem to have been influenced in their decision by the circumstance that the learned trial Magistrate had disbelieved the prosecution version with regard to the four accused, who were acquitted by the trial Judge. They also found support for the version given by lqbal, respondent from the fact that according to the evidence of Sheikh Muhammad Din, Examiner of Fire Arms, two of the three empties, which were recovered from the spot, were fired from the licensed gun of Said Rasul, respondent and one from that of Abdul Razaq, who was not an accused in the case and who, according to the version of Iqbal. respondent had also fired from, his gun. It is further remarked in the judgment of the High Court that the complainant party had sought to rope in almost all the male members of the accused family, which made it very difficult to say with certainty as to who were really guilty amongst them .
The learned counsel for the petitioners has pointed out that the learned Judge has really given no reason whatever for disbelieving the prosecution case against the respondents, who were acquitted by him, and therefore, it was not a case where the prosecution evidence had been disbelieved by the trial Court with regard to those persons. It was further submitted that the High Court has not appreciated the prosecution and the defence version in their proper perspective in giving preference to the version of Muhammad Iqbal to that of the prosecution.
We feel that there are features in this case, which merit; consideration as to whether the acquittal of the respondents has' been recorded on correct legal principles and on a proper appreciation of evidence, as required by law. Leave to appeal is granted, Bailable warrants against the respondents shall issue returnable to the District Magistrate, Hazara. S. Q./G-62/S Leave granted.