GULZAR HUSSAIN Versus MUHAMMAD DILAWAR-

1. SHAFIUR RAHMAN, J. ‑‑Leave to appeal was granted to the complainant to examine whether the acquittal of the five respondents on charges under sections 302/149 and 148, P.P.C. was correctly recorded by the trial Judge and whether the dismissal of the State Appeal and the Revision filed by the complainant against their acquittal could be summarily dismissed by the High Court without calling for the record of the case and without observing the law laid down by this Court in Gul Muhammad v. Crown P L D 1956 S C 111.

2. On the 12th of July, 1982 at about Degarwela while Basharat respondent was driving a Landrover and coming from Chakwal side to Village Lakhwal, he blew the horn of the vehicle twice thereby dispersing the cattle which were being driven at that time by Rustam Khan deceased. There was an altercation between them. Akbar Khan PW 7 intervened and separated them. Nevertheless Basharat respondent held out the threat that he will take revenge for insult to him.

3. On the very next day when Rustam Khan the deceased and his brother Gulzar Hussain, the appellant, were cutting grass in their field at about 6‑00 a.m. all the five respondents came there in a Landrover. Muhammad Dilawar and Shaukat Ali respondents were armed with rifles, Muhammad Basharat had a Sota, the other two respondents were empty handed. They came out of the Landrover and raised Lalkara and while chasing Muhammad Dilawar and Shaukat Ali fired one shot each and when Rustam Khan fell on the ground he was inflicted Sota blows by Basharat resulting in his death. On the alarm raised by Gulzar Hussain, Ghulam Mustafa P.W.11 and one Fazal Khan appeared on the scene and witnessed the occurrence.

4. The report of the occurrence was lodged by the appellant at Police Station Chakwal at 8‑30 a.m. the distance being about 10 miles. Ghulam Murtaza SHO PW 12 investigated the case and from the spot, he recovered empty cartridge (Exh.P.5) which was taken in the possession as also the Landrover allegedly used by the respondents. Shaukat Ali and Muhammad Dilawar led to the recovery of their respective rifles, while Muhammad Basharat respondent led to the recovery of the Sota.

5. The respondents had a counter version with regard to the occurrence and their grievance about it and this is narrated in sufficient detail by Muhammad Basharat in the following words:‑

6. "The fact of the matter is that the path from Lakhwal to Chakwal for vehicles passes through the estate of village Vero from the Rohr. The residents of village Vero had been objecting to the wagons taking that route. Previously the fare from village Vero to Chakwal was Rs.2.00, which was raised to Rs.2.50 to which fact also the people of village Vero objected and made concerted efforts not to allow us to take our vehicles through Rohr. On the day of occurrence I brought my wagon with passengers who were Rehmat Ali and Gul Nawaz ca‑accused. Ghulam Qadar Barber, Muhammad Daurez son of Allah Ditta and Talib Hussain, my conductor Muhammad Akram were also in the wagon. As our wagon came near the place of occurrence it was stopped by Rustam Khan deceased alongwith Anwar son of Sarwar, Dilawar son of Nazar Hussain, Rehmat Khan brother of Rustam deceased, Fazal Husain son of Ghulam Husan, Mir Zaman son of Sher Khan, Sawar Khan son of Shaikh Ahmad and Fazal Dad son of Muhammad Khan. There was an altercation. I, Rehmat Ali and Gul Nawaz co‑accused kept sitting in the wagon. The other passengers alongwith my cleaner Akram got down. Muhammad Akram and Talib Hussain were assaulted and beaten. In the meantime another wagon came there which also stopped. Then there was a general commotion in which Anwar son of Sarwar, Dilawar son of Nazar Muhammad and Rehmat Khan brother of the deceased also received injuries. In this melee someone fired with a fire‑arm, perhaps a revolver or carbine. Rustam Khan deceased got hurt and died at the spot. An effort was made to get a case registered against the other side but of no avail. Applications were made repeatedly for the medical examination of Anwar, Dilawar and Rehmat, but the I.O. flouted the orders of the Magistrate in this behalf, because the medical examination of the abovementioned three persons would have completely displaced the prosecution case."

7. A feature in the prosecution evidence which is quite consistent with the defence version must be taken note of at this stage and it was that Ghulam Murtaza the Investigating Officer admitted that he had received an application addressed by the accused respondents to the Magistrate with the order of the Magistrate recorded thereon that Anwar, Dilawar and Rehmat mentioned by the respondents who were, according to the accused, injured in the same occurrence be got medically examined. The Investigating Officer had not complied with that order on the ground that he did not find them injured. For the second time another peremptory order was passed by the Magistrate to get that done but again the Investigating Officer for the same reason did not heed that order.

8. The trial Court while examining the two versions of the occurrence came to the conclusion that the motive for the occurrence, as witnessed by Akbar Khan PW 7, was not consistently made out. The version of the occurrence put up as their defence by the respondents was found to be reasonably plausible and for these reasons the prosecution case was found not free from reasonable doubt. The respondents were, therefore, acquitted by the trial Court by judgment dated 11‑1‑1983.

9. When the State appeal arid the complainant's revision came up before the High Court it was heard in limine and the learned Judges examined the judgment of the learned trial Court and the conduct of the Investigating Officer, of thwarting the defence version by disobeying the command of the Magistrate twice and concluded as follows :-

10. "In these circumstances, irrespective of the fact whether the defence story, stands reasonably made out or not the contradictions, discrepancies and infirmities in the ocular account prevent us from even believing that the prosecution story stands reasonably made out, as to permit the admission of the State appeal. In these circumstances, we have no alternative but to dismiss both the appeal and the revision petition in limine which we do so accordingly."

11. Mr.D.M.Awan, Advocate, the learned Counsel of the appellant, has taken up before us all the grounds which he had taken up before the High Court and which have been serialized in the impugned judgment. In addition it is contended that the law laid down by this Court on the treatment to be afforded and the manner in which such appeals are to be dealt with as held in Gul Muhammad case should have been fully observed. There is, according to the learned counsel for the appellant, a clear case of miscarriage of criminal justice.

12. The law laid down by this Court in Gul Muhammad case concern the propriety and the procedure of handling State appeals against acquittal generally. Such a rule of propriety, procedure, and caution cannot be held to be universal, inviolable and absolute. In exceptional cases and for reasons recorded or otherwise discernible a departure, or an exception could be made, and it appears, has been made in this case.

13. We are greatly surprised at the refusal of the Investigating Officer to obey the commands of the Magistrate properly conveyed to, him in a pending investigation' on an application made by the accused' charged of the offence of murder. The disobedience, its repetition and lack of justification for such a conduct has clearly established and it shows that he was not investigating the case with an open mind and as becoming of an Investigating Officer. By his unexplained conduct a valuable defence which could be available to the accused stood completely destroyed. The benefit of such a conduct can in no` case go to the prosecution.

14. As regards the motive for the occurrence the actual occurrence and version of the respond we find that the appraisal of the evidence by the trial Court suffered from no infirmity and the High Court way justified in approving it and not interfering in case of acquittal.

15. On the facts of this case we find that the treatment given by the High Court to the State appeal against the acquittal and the criminal revision by the complainant suffers from no illegality, infirmity or impropriety to call for our interference. The appeal is, therefore, dismissed.

16. M.Y.H./G‑72/S ??????????????????????????????????????????????????????????????????????? Appeal dismissed

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