FAZAL AHMAD Versus MUHAMMAD IQBAL

ALI HUSSAIN QAZILBASH, J.‑‑ This is an appeal by leave filed by Fazal Ahmad complainant against the order of a learned Division Bench of the Peshawar High Court, dated the 24th September, 1979.

2. Muhammad Iqbal and Wajid Ali Shah respondents were tried by the learned Sessions Judge, Abbottabad, under section 302/34, P.P.C. for committing the murder of Mehboob Illahi, their co‑villager, on 20‑4‑1976 at 4‑00 p.m. in the limits of village Dobandi. The report of the occurrence was lodged the same evening at 5‑30 p.m., wherein it was alleged that on the day of occurrence at 5 p.m. the complainant alongwith his brother Mehboob and his servant Taj Muhammad were plucking loquats in the orchard. Mehboob decease was collecting the loquats and packing them in the crates. In the meantime he heard hue and cry, soon came down from the tree an saw that Muhammad Cabal alias Bala had caught hold of his brother Mehboob and Wajid Ali Shah was inflicting chhuri blows upon the deceased. As soon as the two assailants saw the complainant, they made their escape good. His brother was lying on the ground. The occurrence was witnessed by Muhammad Zaman and Taj Muhammad The motive given in the F.I.R. was that the deceased was a witness against the accused in a theft case.

The report was recorded by Momin Shah (P.W.7) who went to Khanpur Hospital where he prepared the inquest report and the injury sheet of the deceased and sent the dead body for post‑morte examination. During the investigation, he took into possession blood‑stained earth and also two baskets full of loquats. Some empty baskets were also lying there. The post‑mortem examination was conducted the next day when the doctor found as many as eleven incised wounds of various dimensions upon the skull and various parts of the face of the deceased. On internal examination he found the scalp injured and the right temporal bone showed an oval cut. The membranes and the brain were injured and the right side of scalp cavity contained blood. The doctor found semi‑digested food the stomach of the deceased. According to him, injury No.1 was dangerous to life and 2 to 6 were grievous.

3. After the completion of the investigation, both the respondents were put to trial, where the learned Sessions Judge after recording the statements of the prosecution witnesses and those of the respondents, convicted both of them under section 302/34, P.P.C and vide his judgment dated 14‑2‑1978 sentenced both of them death and to a fine of Rs.1,000.00 each or in default three month R.I. The fine on recovery was ordered to be paid to the legal heir of the deceased. Both the respondents filed an appeal in the High Court which was accepted and their conviction and sentence was set aside as per the impugned order.

4. Leave in this case was granted to re‑appraise the evident produced by the prosecution.

5. We have heard the learned counsel for the parties and have gone through the record of evidence. The occurrence is alleged to have taken place on 20‑4‑1976 at late afternoon and, therefore, the identity of the accused cannot be disputed. Two witnesses in the person of Fazal Ahmad (P.W.5) and Taj Muhammad (P.W.6) have appeared at the trial in support of the case of the prosecution. The former is the brother of the deceased and the latter his servant Since enmity existed between the deceased and Muhammad Iqbal respondent, none of the witnesses can, therefore, be termed as a independent witness. We have carefully examined the statements these two alleged eye‑witnesses in the light of the findings of the High Court and are of the view that the discrepancies and contradictions highlighted by the learned Judges of the High Court do create doubt about their veracity. The part attributed to the two respondents in the commission of the crime by the prosecution has also been examined by the High Court and rightly repelled because in the first instance no reason, whatsoever, existed for Wajid Ali Shah respondent to take part in the commission of the crime and thus perform a major role of inflicting as many as eleven injuries to the deceased, and, secondly, why Muhammad Iqbal respondent who had a direct motive against the deceased should have gone to the place of occurrence empty handed. It seems that the prosecution, for reasons best known to it, has not come out with true facts of the case at all. Thus the High Court was justified in discarding the ocular evidence produced by the prosecution and in acquitting the

6. As a result of the above, the appeal has no merit and is dismissed. Muhammad Iqbal respondent shall be released forthwith if not wanted in any other case and non‑bailable warrants issued against Wajid Ali Shah respondent are recalled.

M.Y.H./F-59/S Appeal dismissed.