MIR KHAN Versus MUHAMMAD USMAN
This petition for leave to appeal arises from a murder case where the Lahore High Court acquitted seven respondents, setting aside their convictions and sentences previously awarded by the trial court. The occurrence involved three deaths in December 1973, with a prompt F.I.R. lodged. The prosecution's case faced challenges regarding the omission of certain names in the F.I.R. and the reliability of eyewitness testimony given the visibility conditions and the promptness of the report. The Supreme Court examined whether the High Court misread evidence, particularly regarding the independence of eyewitnesses and the impact of the acquittal of other co-accused on the remaining respondents. The Court held that while the acquittal of co-accused generally weakens the prosecution's case, leave to appeal should be granted specifically against those respondents whose recovered weapons matched the crime empties found at the scene. Conversely, leave to appeal was refused regarding the remaining respondents. The judgment reaffirms the principle that forensic evidence, such as the matching of recovered weapons with crime empties, serves as a critical factor in determining whether to grant leave to appeal in criminal matters.
- Does the acquittal of some co-accused automatically necessitate the acquittal of all other co-accused in a criminal case?
- Is the matching of recovered weapons with crime empties a sufficient ground to grant leave to appeal against an acquittal?
- Can an appellate court's misreading of an eyewitness's relationship to the deceased justify a review of the acquittal?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.- -Complainant-side, in a murder case, has sought leave to appeal from judgment dated 10-5-1982 of the Lahore High Court; whereby accused/ respondents Nos.1 to 7 were acquitted and the sentences of death awarded to Usman and life imprisonment to the other respondents besides fine to all, were set aside.
2. The salient features of the case given at the bar from the petitioner side are as follows:
3. Three persons lost life in the occurrence which took place at 7 a.m. during the month of December in 1973. F.I.R. was prompt lodged at 8-30 a.m. The attack by the accused side was with fire-arms. Besides, the said seven respondents three other persons: namely, Khan Muhammad alias Khan, Shaman and Noor Ahmad who were not mentioned in the F.I.R. as culprits, were acquitted by the trial Court Crime empties recovered from the spot matched with weapons recovered from Chiragh, Said Muhammad, Muhammad Amin and Khan Muhammad accused. Khan Muhammad, as noted above, was acquitted by the trial Court. Faiz another accused from whom a gun was allegedly recovered is not shown to have been connected through the matching of any crime empty. There was enough previous enmity between the parties so as to become a cause for the attack as alleged by the prosecution. It may be remarked that same enmity could also be a cause for false implication in such an occurrence. According to the prosecution case as it developed at the trial, the occurrence could be divided into two parts: one, in which the three acquitted accused could not have been seen by some witnesses including the complainant; and the other which was witnessed by only those persons who had no contact with the complainant before he went to lodge the F.I.R. That is how it is explained that three accused and two eye-witnesses could not be mentioned in the F.I.R. The learned trial Court had given benefit of omission in the F.I.R. and had acquitted the said three accused. It convicted all others, awarding them various sentences. The High Court on appeal while maintaining the said acquittal, also acquitted the remaining seven accused (now the respondents in this petition) therefore, the complainant has sought leave to appeal.
4. We have heard the learned counsel for the petitioner as also the learned counsel for the caveator at some length.
5. The learned counsel for the petitioner, it seems, has rightly urged that the deposition of Hafiz Muhammad Ramzan an eye-witness has been misread by the High Court when it observed that he was related to any of the deceased persons. He has also pointed out that Shaukat Hayat another eye-witness was independent, therefore, the explanation offered from the prosecution side regarding the omission of the names of three persons from the F.I.R. should have been accepted; and, in any case, the fact that Hafiz Muhammad Ramzar, did not charge any of those three persons as having been seen by him committed the crime, should have been considered enough to treat him as an independent witness. And that being so, the acquittal of three persons should not have weighed with the High Court while examining the guilt or otherwise of the other seven accused/ respondents.
6. Learned counsel for the caveator, amongst other points, brought to our notice an important feature, namely, that one of the acquitted accused was also apprehended soon after the occurrence by different persons and the fact that his name is not mentioned in the F.I.R, would show that one of the eye-witnesses whether interested or independent, saw the occurrence. He has also pointed out that during the month of December the visibility at early morning time could not be such so as to render the identity of the real culprits beyond any doubt; particularly, when the F.I.R. seems to be too prompt to be true regarding time of occurrence or the time when it was in fact lodged. He has also criticized the recovery evidence and contrary to what the learned counsel for the petitioner argued, contended that the finding of the High Court regarding recoveries should not be disturbed as no misreading of evidence has been even alleged from the complainant-side in this behalf.
7. Other points have also been raised from both the sides. After going through the two judgments and the relevant evidence, we consider it a fit case for grant of leave to appeal against only those accused/ respondents from whom the weapons allegedly recovered matched with the crime empties.
8. Khan Muhammad accused allegedly had led to the recovery of the pistol P.26 and crime empty P.35/1 matched with that pistol But his name not having been mentioned in the F.I.R., he was acquitted by the trial Court and the present petition has not been filed against him. Therefore, this matching of the weapon and a crime empty is of no consequence in these proceedings except that it might reflect upon the case of the prosecution in general. However, the weapon allegedly recovered from Chiragh, Said Muhammad and Muhammad Am' are said to have matched with the crime empties. Leave, to appeal granted against these three persons. Warrants of arrest shall b issued against them.
9. Leave to appeal against the remaining accused/ respondents is refused.
10. M.I./M-292/S Order accordingly.