ASHIQ HUSSAIN SHAH vs ASHIQ ALI SHAH AND Another
This petition for leave to appeal challenged the judgment of the Lahore High Court, which acquitted the respondent, Ashiq Ali Shah, of the murder of Amanat Shah. The respondent had been convicted and sentenced to death by the trial court based on evidence including an approver's testimony, extra-judicial confession, and recoveries of weapons. The High Court acquitted the respondent, finding significant evidentiary gaps and failing to exclude the possibility of innocence. Upon review, the Supreme Court examined the prosecution's reliance on the 'last seen' theory, the approver's testimony, and the extra-judicial confession. The Court found the 'last seen' evidence improbable due to existing family enmity, noted the approver's statement was exculpatory and unreliable, and determined the retracted extra-judicial confession lacked credibility and was potentially influenced. The Supreme Court held that the High Court's appreciation of evidence did not suffer from any infirmity warranting interference with an acquittal. Consequently, the petition was dismissed, affirming the principle that an appellate court will not interfere with an acquittal unless the lower court's reasoning is fundamentally flawed or perverse.
- Can the Supreme Court interfere with an acquittal judgment if the High Court's appreciation of evidence is not shown to be infirm?
- Is an exculpatory statement by an approver sufficient to support a conviction?
- Does the existence of family enmity render the 'last seen' theory improbable in a murder case?
ORDER
MUHAMMAD AFZAL ZULLAH, J-Leave to appeal has been sought from judgment dated 19-5-1981 of the Lahore High Court, whereby Ashiq Ali Shah respondent was acquitted, on appeal from trial Court judgment wherein he was convicted and sentenced to death for the murder of Amanat Shah.
2. The prosecution case was that the respondent had illicit connection with Mst. Kalsoom his co- accused wife of Amanat deceased. They decided to kill Amanat with the help of Murad approver.
Accordingly, the respondent and the approver took him away on a false pretext and killed him with Tooka and Chhuri, which were later on recovered at their instance. At the trial, besides the said recoveries and approver's testimony, evidence was led of `last seen together', extra-judicial confession and motive.
3. The learned trial Judge acquitted Mst. Kalsoom for lack of evidence and relying on the prosecution evidence, convicted and sentenced the respon--dent as noted earlier. He had pleaded total denial and innocence appeal, a Division Bench of the High Court acquitted the respondent on it finding that "there are many loop-holes which have not been filled by strong and reliable circumstantial evidence so as to exclude the possibility that the appellant was innocent and was not real murderer."
4. We have heard the learned counsel in support of this petition. There was enmity between the family of the deceased and the respondent for some time, hence it was highly improbable that the deceased would have gone with the respondent and Murad even on a false pretext. Moreover, no independent evidence was led on this important aspect of the case.
5. The testimony of approver in this case is of no use to the prosecution. He made a totally exculpatory statement. No reliance could be placed on it either
6. The extra-judicial confession which was retracted was sought to be established through Nasir Ahmad P. W. 3 whose statement does not inspire confidence. In any case, the element of undue influence could not be safely excluded.
7. The appreciation of above-noted and other evidence by the High Court does not suffer from any such infirmity, which might have furnished, justification for interference by this Court, with a judgment of acquittal. We accordingly dismiss this petition.
Cited by 2 cases
- NOOR AHMED JAVED Versus Mst. LAIBA 2022 PCrLJN 93
- MASUD AHMAD and 2 others vs UNITED BANK LIMITED 1992 SCMR 424