BAGH ALI vs IQBAL AND 2 Other

ORDER

1. WAHIDUDDIN AHMAD, J.-Respondents Iqbal and Abdur Rahman were tried by the learned Additional Sessions Judge, Bahawalpur at Bahawalnagar under section 302/34, P. P. C. For the murder of Muhammad Khan on the 4th December 1966, at Isha time in the fields of village Chaweka at a distance of about 12 miles from the Police Station, Sadar, Bahawalnagar. Both the respondents were convicted by judgment dated the 31st January 1968. Iqbal was sentenced to death and Abdur Rabman to transportation for life. In Murder Reference No. 55 of 1966 (Criminal Appeal No. 85 of 1968), a Division Bench of the West Pakistan High Court, Lahore, by judgment dated the 27th November 1968, set aside the conviction of the respondents and acquitted them.

2. The petitioner seeks special leave to file an appeal against the said order.

3. The prosecution case is that Iqbal respondent suspected his sister Mst. Manzooran to be on illicit relation with deceased Muhammad Khan. Iqbal and Abdur Rabnian respondents are friends. At Isha prayer time, on the fateful night, Sajawara P. W. 2 was smoking huqqa at the house of his uncle Kamal when Riaz son of Haji Joya arrived. Riaz had come to fetch food. Kamal told him that Muhammad Khan bad left after taking his meal and had not yet returned. Riaz informed him that he had met Muhammad Khan in the company of lqbal and Abdur Rahman respondents at the Chak who had told him that they were going to the Tubewell of Sadiq to fetch a donkey. Thereupon, Kamal expressed that it was not proper for Muhammad Khan to go with Iqbal and Abdur Rahman and asked Riaz to go and bring him back. Sajawara and Riaz then went to bring Muhammad Khan back. Riaz had a torch in his hand. After travelling four miles from the basti they came across Muhammad Khan and told him that his father wanted him back. It is alleged that Iqbal, thereupon, fired at the back of Muhammad Khan with a pistol. Muhammad Khan fell down. Sajawara challenged the respondents but they abused him and warned him not to come near them. The two respondents then ran towards the village. Sajawara and Riaz attended Muhammad Khan and found him dead. He had a wound on his head which was bleeding. Sajawara stayed with the dead --body. Riaz went to inform the relatives of the deceased and after a short-while Kamal and Bagh Ali etc., arrived at the scene of occurrence. The First Information Report was lodged by Sajawara P.

4. W. 2 at the Police Station Sadar, Bahawalnagar on the 5th December 1966, at 9 a.m. Which was recorded by Sub---Inspector Muhammad Akbar Khan. The matter was investiga--ted. Iqbal and Abdur Rahman respondents were produced before the police on the 6th December 1966. Iqbal led to the recovery of pistol, Exh. P.

1. From his house along with the five cartridges, Exhs. P. 2 to P. 6.

5. The conviction of the appellant was based on the oral testimony of P. W. 2 Sajawara and P. W. 3 Riaz corroborated by the recovery of pistol and the live cartridges. The learned Judges of the High Court have not accepted the testimony of the eye-witnesses on the following grounds :-

(i) The occurrence took place on the 4th December 1966, at Isha time. The Police Station is at a distance of 12 miles. The matter was reported to the police on bicycle and the First Information Report was lodged after 15 hours at 9 a.m. On the following morning i. e., on the 5th December 1966.

6. The explanation given by Sajawara that he was afraid of the accused persons and that they could not leave the dead body alone was not accepted.

(ii) It was not possible for Sajawara and Riaz to over take the deceased, Iqbal and Abdur Rahman at a distance of 4 miles because they had left the place about 45 minutes before Sajawara and Riaz left to bring Muhammad Khan back.

7. (i.e) That the deceased had taken his food shortly before his murder and in these circumstances, Semi digested food Could not be found in his stomach. The learned Judges of the High Court are of the opinion that it was impossible that the food eaten by the deceased could have reached at the stage of semi digestion within such a short period.

(iv) The deceased in the company of the respondents were coming towards the Tube-well of Sadiq. They would nonracially be expected to go along a path. The place of occurrence, however, is in a field where wheat had been cultivated. This does not fit in the prosecution story.

(v) The prosecution evidence is that the respondents and the deceased were going together.Still no blackening or scorching were present on, the body of the deceased. No bullet was recovered from the wound. There was no exit wound either. This would not be possible if the injury had been caused by firing a pistol at such close range.

8. Mr. Muhammad Rashid Chughtai, learned counsel for the petitioner has contended that the grounds given by the High Court for acquitting the accused are not based on proper appreciation of the evidence led by the prosecution. The con--tention of the learned counsel may be correct in respect of one or two grounds. There is, however, no explanation as to why so much time was taken in lodging the First Information Report. The explanation of Sajawara that he was afraid of the accused persons and that they could not leave the dead body alone was rightly rejected by the High Court. It is in evidence that Sajawara stayed with the dead body. Riaz was sent to inform the relatives of the deceased and after a short while Kamal and Bagh Ali arrived at the scene of occurrence. It was, therefore, quite easy for Sajawara to go in the company of others to the Police Station for lodging the First Information Report. The explanation given by Sajawara is not satisfactory. In these circumstances, the conclusion of the High Court that it was an un-witnessed crime was fully justified. In view of this, the respondents acquittal is based on proper appreciation of the evidence. There is no force in the petition which is dismissed.