ALI MURAD Versus AYUB and another

FAZAL ILAHI KHAN, J.---Leave to appeal is prayed for by the complainant against the order/judgment of the learned Lahore High Court,' Multan Bench, Multan; whereby respondent No,1 was acquitted of the charge of murder of petitioner's father, namely, Ali Baig on acceptance of his appeal against the judgment of learned Additional Sessions Judge in murder reference. The prosecution case set up in the F.I.R. In brief is that Ali Baig deceased had tethered his camel outside his house in the open space when at about 1-30 a.m. (mid-night) he heard barking of his dog. He and his sons Ali Murad (P.W. 6) and Dil Murad (P.W. 8) got up and went outside apprehending some fowl play. He saw in the light of torch Kathu son of Mohabbat armed with Dang, Gul Muhammad alias Gullu armed with Dang, Ayub armed with .12 bore gun and Muhammad Ali armed with a Dang who were taking away the camel. He challenged the thieves to stop but they forbade him not to come forward and stay away from them. The P.Ws. Were, however, successful in overpowering Kathu and on seeing this Ayub respondent fired a shot which hit the complainant who fell down on the ground. Rest of the accused fled away leaving the camel at the spot. On way to the hospital the complainant made his statement before Khadim Hussain, ASI (P.W. 10).

At the trial reliance was placed on ocular testimony of Ali Murad (P.W. 6) and Dil Murad (P.W. 8), the dying declaration, medical evidence, recovery of the cartridge from the spot and recovery of .12 bore gun at the instance of Ayub accused/respondent and the report of Forensic Science Laboratory. On such evidence the offence against Ayub accused/respondent was found proved beyond any reasonable doubt while rest of the accused were exonerated of the charge of murder but convicted under section 382, P.P.C. Etc. Ayub accused/respondent challenged alone his conviction and sentence while the murder reference was placed before the learned High Court for confirmation. The learned High Court accepted the appeal, set aside the conviction and sentence and acquitted the accused/respondent and consequently refused to confirm the death sentence. It was contended by the learned counsel for the petitioner that there was ample direct disinterested evidence in the case fully corroborated by medical and other circumstantial evidence. The witnesses gave natural version of the occurrence and their presence at the spot could not be doubted. That the observation of the learned High Court that the deceased on receipt of the injury might not have been able to speak, wrongly weighed against the direct evidence. The recovery of crime empty coupled with the report of Forensic Science Laboratory lend further support to the prosecution case; hence the learned High Court was not justified in rejecting such overwhelming evidence on mere assumption.

Leave is granted to consider the contention raised. Bailable warrants of arrest in the sum of Rs,20,000 with two sureties in the like amount against respondent No,1, be issued.