MALIK MUHAMMAD vs RAHIMOO and others

ORDER

' MAMOON KAZI, J.---This petition, for leave to appeal, calls into question the judgment of the Balochistan High Court dated 21-3-1996, whereby respondents Rahimoo and others were acquitted of the offences falling under sections 139, 148, 149 and 302, P.P.C., for which they had been tried by the learned Sessions Judge, Loralai and convicted, vide judgment dated 30-7-1995. Each of the respondent was sentenced to 7 years R.I. And to pay a fine of R.s,10,000 and in default, to further suffer one year's R.I.

2. The six respondents alongwith four co-accused had been charged by the learned Sessions Judge, Loralai, for being members of an unlawful assembly and resorting to roiting on 8-8-19)3. It was alleged that on the said date, the said respondents and their co-accused had resorted to indiscriminate firing at Kotra Dad Sub-Tehsil Rakani, District Barkhan, and caused death of one Abdul Ghafoor son of Yar Khan.

3. P.W.4, Naseer Ahmad, Naib Tehsildar, Barkhan, who received information in regard to the incident on the same day at about 12 Noon, reached Kotra Choki alongwith levies staff tried to call the parties, but none of them was ready to leave the place of incident. He then informed the Assistant Commissioner on telephone and on his direction he once again went to Kotra Choki, where information was received by him about the murder of Abdul Ghafoor. In the meanwhile, party of Lal Khan Laljani had already escaped.

4. Naseer Ahmad then inspected the site and also made recovery of 24 empties of 303 bore and 4 empties of China rifle from the spot. He also inspected the dead body and prepared memo Exh.P.4/C. He then left in search of accused. He arrested Memhrab Khan and recorded statements of Haji Muhammad Amir, Din Muhammad, Karim, Fazal and Mahmood.

5. Although, no post-mortem was held on the body of the deceased but the learned Sessions Judge was convinced that the deceased had died an unnatural death on account of two bullet injuries, one on his forehead and the other near his ear received by him during the incident.

6. The accused, in their defence, took a plea of alibi. They also got their evidence recorded under section 340(2), Cr.P.C. The accused also examined witnesses in their defence.

7. Upon the evidence recorded by the learned Sessions Judge, he found that case had been fully established against the eight respondents and, therefore, he convicted them under section 302 (C), P.P.C. And sentenced them, as pointed out earlier. He, however, acquitted four of the accused, as, according to him, no case was made out against them.

8. The learned Judges of the High Court, on appeal, found it unsafe to rely upon the evidence of the witnesses, as all of whom, according to them, were interested witnesses and, therefore, according to them, reliance could not be placed on their evidence without independent corroboration, which was not available. They also found that it was not safe to rely on the same evidence, upon which four of the co-accused had already been acquitted. Thus, they accepted the appeal and acquitted all the eight respondents.

9. Mr. Bilal, learned counsel for the petitioner has argued that the view taken by the learned Judges in the High Court was erroneous because reliance could be placed by the learned Judges on the evidence of witnesses, particularly that of P.W.2, Mir son of Mehar Gul, whose evidence inspires confidence.

10. In our opinion, the entire evidence in the case requires reappraisal. Leave is, therefore, granted.

Bailable warrant in the sum of R.s,50,000 with one surety may be issued against each of the respondents, to the satisfaction of the Trial Court.