MUHABBATI vs NOOR BARKHA AND Other
This petition for special leave to appeal arises from a judgment of the Lahore High Court whereby respondents Nos. 1 and 2 were acquitted of charges under Section 302 read with Section 34 of the Pakistan Penal Code. The trial court had previously convicted the respondents for the murder of Saeed Muhammad based on ocular testimony, recovery of blood-stained weapons and clothes, and an established motive arising from a past abduction and family enmity. The High Court reversed the conviction, holding that the prosecution witnesses were closely related and their testimony lacked independent corroboration. The core legal question before the Supreme Court is whether the High Court committed a grave error and potential miscarriage of justice by entirely omitting to consider crucial circumstantial evidence, specifically the recovery of incriminating blood-stained articles and weapons. The Supreme Court held that the failure of the High Court to evaluate material circumstantial evidence warrants a fresh examination of the evidence. Consequently, the Court granted leave to appeal and ordered the issuance of non-bailable warrants against the respondents, laying down that the wholesale disregard of corroborative circumstantial evidence by an appellate court vitiates an acquittal and justifies interference by the apex court.
- Whether the failure of an appellate court to consider material circumstantial evidence, such as the recovery of blood-stained weapons and clothes, constitutes a ground for granting leave to appeal against acquittal?
- Can the testimony of related eyewitnesses be discarded entirely without evaluating supporting circumstantial evidence?
- Whether the non-consideration of incriminating evidence by the High Court leads to a miscarriage of justice?
- Section 302, Pakistan Penal Code
- Section 34, Pakistan Penal Code
ORDER
1. MUHAMMAD HALEEM, J:-Respondents No3. 1 and 2 have tried for the murder of SaeeD Muhammad , convicted under section 302 read with 34 of the Pakistan Penal Code and sentenced to transportation for life and to pay a fire of Rs. 3,000 o: .n default to undergo rigorous imprisonment for six months, by the, Sessions Judge, Sargodha by judgment dated 13-6-1972. The respondents appealed and a learned Single Judge of the Lahore High Court by judgment dated 4-2-1972 acquitted the respondents Nos. 1 and 2. The petitioner who is the uncle of the deceased now seeks special leave to appeal against that judgment.
2. The prosecution case was that on 26-3-1970 at Peshiwela, SaeeD Muhammad was proceeding to, his village Nasirpur Kalan and had still to cover a distance of one acre more when the respondents, who lay in ambush in : nearby wheat crop emerged from there and attacked the deceased, Noora was armed with a Toka while Umra with a hatchet. Respondent No. 1 inflicted a Toka blow on the neck of SaeeD Muhammad from behind who in order to save himself from further blows, tar, towards the wheat crop but the two respondents chased him and inflicted further blows with their weapons. 'the deceased expired at the spot. Thereafter the two respondents decamped from there towards their Dera. The incident was witnessed by the petitioner, Muhammad A.I, Muhammad Bakhsh and A.I Muhammad. The petitioner, leaving Boota, a Chowkidar at the spot, hastened to Police Station Midh Zanjha where he lodged the (first information report the same day at 6 p. m.
3. The motive assigned was that six years before the incident Nazra, a cousin of SaeeD Muhammad deceased; had abducted Mst. Rasoolan, a sister of respondent No. 1 who had a suspicion that the deceased had a hand in it :vas living with him at that time. Further, on being approached his sister, the deceased declined to do so and got her married to Nazra in village Kala Shadyan, District Gujrat. There was, therefore, bad blood between the parties and they .Were bound down to maintain peace for one year, by an order dated 27-7-1964. On being produced by Karam A.I on 27- 3-1970 at the Dera of Sultan A.I in village Nasirpur Kalan, the blood-stained clothes of both the respondents were seized from their person. Later, they produced the crime weapons. These articles were reported to be stained with human blood. At the trial the prosecution examined Muhabbati (P: W. 9), Muhammad A.I (P. W. 10), A.I Muhammad (P. W. 11) and also led evidence in regard to the seizure of the incriminating articles such as the blood-stained clothes and the weapons. The trial Court accepted the ocular testimony, the evidence as to the seizure of incriminating articles and the motive attributed for killing the deceased and convicted the respondents as aforesaid.
4. A learned Single Judge of the High Court held that the witnesses were closely related to the deceased and, therefore, their ipse dixit could not be relied upon unless there was strong corroboration. This remark equally applied to A.I Muhammad who was said to be a disinterested witness at the trial and his evidence was also treated on the same footing. Finding no corroboration, the learned Judge held the case against the respondents was highly doubtful and acquitted them.
5. The learned counsel for the petitioner has urged that the learned Single Judge has not considered the evidence in regard to the incriminating articles such as the clothes and the weapons which provided strong corroboration as to the participation of such respondent. It is true that there is no treatment of the circumstantial evidence in the judgment and the learned Single Judge has gone only by the relationship and the enmity to hold that the. Witnesses were unreliable and in the absence of corroborative evidence, the prosecution had failed to establish its case beyond reasonable doubt.
6. The non-consideration of- the circumstantial evidence could lead to possible miscarriage of justice and we would accordingly grant leave to appeal to examine the evidence afresh. Non- Bailable warrants to issue against the respondents Nos. 1 and 2, returnable to the District Magistrate, Sargodha.