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Petitioner: ABDUR REHMAN VS Respondent: TAJ DIN
1988 S C M R 905
1988 S C M R 905
Present: Aslam Riaz Hussain, Javid Iqbal and Saad Saood Jan, JJ
ABDUR REHMAN‑‑Petitioner versus
TAJ DIN and 2 others‑‑Respondents
Petition for Leave to Appeal No.41 of 1986, decided on 21st March, 1988.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 18th November, 1985 in Criminal Appeal No.278 of 1983/Murder Reference No.205 of 1983).
Penal Code (XLV of 1860)‑
‑‑‑S.302/307/34‑‑Constitution of Pakistan (1973), Art.1 850) ‑‑Petition against acquittal‑‑Safe administration of criminal justice‑‑Respondents convicted by Trial Court under section 302/307/34, P.P.C. ‑‑Acquittal by High Court challenged‑‑Long standing enmity between parties‑‑Two versions of occurrence‑‑Ocular testimony found to be interested and partisan‑‑On testimony of a police officer defence version considered more probable‑‑Statements made by said police officer contradictory‑ Leave to appeal granted to consider whether defence version had been rightly accepted as probable in accordance with well‑established principles of the safe administration of criminal justice‑‑Warrants of arrest issued against acquitted accused‑respondents.
Dr. Farook A. Chaudhry, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Sh. Masud Akhtar, Advocate‑on‑Record for Respondents Nos.1 and 2.
Kh. Muhammad Asghar, Advocate Supreme Court instructed by Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Respondent No.3.
Date of hearing: 21st March, 1988.
ORDER
JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed by Abdur Rehman petitioner‑complainant against the acquittal of Taj Din and Irshad Ahmad respondents. Both the aforesaid respondents alongwith two others namely Muhammad lqbal and Muhammad Sharif were tried for offences under section 302/307/34, P.P.C. for causing the murder of Ghulam Sabir and injuries to Mist. Jamila P.W. The Sessions Judge Sahiwal acquitted Muhammad Iqbal and Muhammad 5harif, but convicted the present respondents as follows: Taj Din respondent was sentenced to death plus fine under section ;102/34. P.P.C., whereas Irshad Ahmad respondent was sentenced to life imprisonment plus fine under section 302/34, P.P.C. Both of them were further sentenced to 3 years' R.I. plus fine under section 307/34, P.P.C. On appeal the Lahore High Court, Lahore acquitted both the said respondents.
The occurrence took place on 13th
April, 1982 at Deegarwela in Chak No.143/9‑L within the area of Police Station Dera Rahim, District Sahiwal. The F.I.R. was lodged on the same day. The respondents were arrested on 18th April, 1982. The recoveries have not been believed in the instant case by both the Courts below. The prosecution case was based on the ocular testimony of three witnesses namely Abdur Rahman present petitioner father of the deceased, Mushtaq Ahmad and Mst. Jamila who was injured. The motive is that there was civil and criminal litigation going on between the parties. There was an earlier incident at 3 p.m. when Kanungo and Patwari had visited the village for the demarcation of land. It is stated that on this occasion there had been exchange of abuses between the parties and the complainant party which was larger in number gave stick and Sota blows to the accused party. There is a long standing enmity between them. The occurrence is not denied by the defence. But there are two versions of the occurrence one advanced by the prosecution and the other by the defence. The prosecution version is that Irshad Ahmad respondent fired a shot from the roof of the house which hit the deceased on his thigh and Taj Din respondent fired a shot which hit the deceased in his abdomen and his right arm. Irshad Ahmad respondent then fired again and the shot hit Mst. Jamila P.W. Then it is stated that the complainant party hurled brick bats on the accused side in self‑defence. According to the medical evidence the deceased had 8 fire‑arm injuries whereas Mst. Jamila had two fire‑arm injuries. Irshad Ahmad respondent had one incised wound, one scabbed abrasion and one contusion on his person. The injuries were simple in nature. Besides that two D.Ws. were medically examined namely Nur Muhammad D.W. who had three injuries on his person and Taj Din D.W. who had one incised wound, three swellings and one abrasion. About the ocular testimony it was held by the learned Judges of the Lahore High Court, Lahore that it was interested and partisan. Consequently it was in this background that they proceeded to put the prosecution version in juxtaposition with the defence version and then arrived at the conclusion that the defence version was more probable. The defence version was to the effect that the accused party had been assaulted and injured by the complainant side and that the whole incident had started because one of the paTtisans of the complainant party namely Bashir Ahmad an ex‑army man had fired two shots. The accused side retaliated in the course of which injuries were received by the deceased and Mst. Jamila. In support of the defence version Muhammad Riaz Inspector Crimes Branch was produced as D.W.1 who stated that in order to arrest the said Bashir Ahmad he obtained non‑bailable warrants but thereafter this Bashir Ahmad who had absconded was declared a proclaimed offender.
Learned counsel for the petitioner argues before us that there was no justification on the part of the appellate Court to consider the defence version as probable on the testimony of this police officer, who in his statement while being cross‑examined had admitted that the said Bashir Ahmad had appeared before him and he had recorded his statement as till then there was no evidence against him. Consequently he was not arrested by him nor he took any action against him. He had further stated that a direction was given to him by the crimes branch to collect the evidence against the said Bashir Ahmad if he was involved in this case. On the basis of this portion of the statement, learned counsel argued that the said Bashir Ahmad was available to the police officer but he was not arrested. ,According to the learned counsel his introduction by the defence was an after thought and had the defence version been originally so, the said police officer would have arrested him when he appeared before him and his statement was recorded.
Leave is granted in this case to consider as to whether the! defence version had been rightly accepted as probable in accordance with well‑established principles of the safe administration of criminal justice. Warrants of arrest to issue against Taj Din and Irshad Ahmad respondents.
M.I. /A‑19915 Leave granted.