MUHAMMAD TARIQ Versus JAMAL DIN

ORDER

1. SHAFIUR RAHMAN, J.-- The petitioner, a brother of the deceased and a complainant in the case, seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated the 14th of January, 1981 whereby the criminal appeal of the convict respondent No.1 was accepted and his conviction under section 302 P.P.C. (two counts) was set aside.

2. The disputed land where the occurrence took place was state land which was held by the respondent and it is said Safdar Ali was cultivating it as a licensee of the respondent. It was alleged that the respondent suspected that the deceased Safdar Ali might assert his independent right in respect of this land and for that reason he had asked him to desist from cultivating the land. However, Safdar Ali had not vacated the land. On the 25th of June,1976 at 6.20 a.m. Safdar Ali alongwith his brother Naheed Khalid aged about 12 or 13 years had gone to the land for ploughing it and they were in fact ploughing it when the deceased appeared on the scene armed with hatchet felt annoyed over their presence in the land and started giving hatchet blows to him and to Naheed Khalid. Muhammad Tariq (P.W.7) and Hidayat (P.W.8) and Bashir Ahmad, father the two deceased, were attracted to the place of occurrence on their alarm. The two injured expired at the spot. The respondent left the scene and a report about the occurrence was lodged at 8.20 p.m. at the Police Station Sattiana, District Faisalabad. The respondent was arrested on 25-8-1976 and the hatchet was recovered which was reported to be stained with human blood.

3. At the trial the respondent admitted that Safdar Ali was his tenant but denied that he had commanded him not to cultivate the land. He explained the case against him on account of enmity and further stated as hereunder:-

4. "It was a blind murder, because the occurrence took place during the night. I was present in Chak No.66 J.B. that night. Sardar Muhammad was enemy of Safdar Ali, because he had caused hatchet blows to his wife on 20-12-1973. I produce copy of F. I. R. Ex. DB. The complainant lodged this case against me to get my land because I am issueless. I produce copy of lease deed Ex. DC. I was infirm due to old age, so was unable to assault Safdar Ali and Naheed Khalid."

5. The respondent was convicted by the trial Court under section 302 P.P.C. and was sentenced to death and fine.

6. The learned Judges in the High Court while seized of the matter of confirmation of death sentence and the appeal filed by the respondent went into the evidence afresh and also obtained the presence of the respondent at the hearing. While disposing of the appeal the learned Judges observed as hereunder:-

7. "The appellant had appeared before us and as it has been observed, he did not only appear to be about 85 years old but had weak eye-sight, was infirm and was definitely an old man. The occurrence, in the instant case, is reported to have taken place about four years go. Even at that time in our estimate he could have been an old and infirm person, incapable of wielding a hatchet and causing 13 injuries therewith to the two deceased, in the instant case, and thereafter when two of the eye-witnesses as well as father of the two deceased rushed to the scene, he offered a threat to them by waiving his hatchet and warning them not to come near, otherwise they would meet the same fate and then ran away."

8. The presence of the eye-witnesses was doubted by observing as follows:-

9. "So far as the ocular testimony is concerned, we have carefully scrutinised the same and in our opinion the two eye-witnesses were chance witnesses who had no reason to be present near the spot In that view of the matter, in our view, they did not see the occurrence but since they were closely related to the two deceased, they implicated the appellant merely because he happened to be the lease holder of the land which was being cultivated by Safdar Ali deceased as a tenant. If no reliance is placed on the ocular testimony, then the recovery evidence, by itself, is not sufficient to sustain conviction and sentence. The motive version is also not very convincing."

10. The appeal was allowed and the death sentence was not confirmed and he was acquitted.

11. Mr. Muhammad Abdus Saleem, the learned counsel for the petitioner, has contended before us that a single accused had been named in the F. I. R. which was promptly lodged. There was no previous enmity to account for it. The motive advanced by the prosecution had support from the record. The accused-respondent was not as old as he was taken to be by the High Court and he could cause the injuries which were found on the two deceased and also while armed with the hatchet posed a threat to the witnesses.

12. After examining the judgment recorded by the High Court and' the reasons given, we find that the presence of eye-witnesses at the time of occurrence could reasonably be doubted. Besides, the number of injuries caused to the two suggests that they were caused without any interruption from any quarter and without receiving challenge from anyone. In this background the High Court was justified in not believing the eye-witnesses and also not being satisfied with the motive advanced for the crime. It is more a question of re-appraisement of evidence than any legal error having been committed in appreciating the same or otherwise. There is no merit in the petition and leave to appeal is, therefore, refused.

13. M.I. /M-270/S Petition dismissed.