ASLAM RIAZ HUSSAIN, J.-Akram, Afzal, Mushtaq and Waris, petitioners were tried along with Ajmal and Sadiq Masih for the murder of Zafar, by Additional Sessions Judge, Lahore.
2. The occurrence is stated to have taken place at 1 O'clock in the night between 26th and 27th July, 1978, at a short distance from Mauzia Bhagwanpura, Police Station Manawan, District Lahore. The F.
I. R. Was lodged by Mst. Hussain Bibi P. W. 6 (mother of the deceased).
The prosecution story as revealed by the statements made by the eye-witnesses at the trial (including their cross-examination) is briefly as follows :- Abdul Wahid etc. Of the accused party had beaten Mst. Hussain Bibi and her daughter (mother and sister respectively of Zafar deceased). In retali--ation, Zafar (deceased) fired at and injured Muhammad Akram, petitioner. Both matters were reported to the police and these criminal cases were thus pending between the parties. On the night of occurrence' Zafar (deceased) and his brother Muhammad Aslam (P. W. 8) went to a fair being held at Mauzia Pir Naseer at a distance of about 2J/3 miles from Bhagwanpura. The accused had also gone to attend the fair. Muhammad Aslam (P. W. 8) and Zafar (deceased) met the accused at the fair. When the decease) and his brother started back for their house at about midnight all the ac: used, armed with hatchets and lathis followed them and at a distance of 2 Killas from the place where the fair was being held they caught hold of Zafar and "captured" him. They then "took" him towards Village Bhagwanpura and threatened him on pain of life, not to make any attempt to escape. When they reached within an earshot of the said village they started at attacking him and giving him blows with their respective weapons. Muhammad Ajmal and Saddiq Masih (acquitted accused) are stated to have caught hold of his bands and feet while Akram and Mushtaq petitioners gaffe him. Hatchet blows and Afzal and Waris (petitioners) gave him stick blows. Aslam and Zafar started raising noise which attracted their mother Mgt. Hussain Bibi (P. W. 6), and their brother-in-law Rashid (P. W. 9) to the spot. The accused threatened them with dire consequences in case they tried to intervene. As a result of the blows given to him Zafar died at the spilt. It is alleged that thereafter the accused removed the dead body from the spot and took it to the haveli of Akram accused/petitioner. Mst.
Hussain Bihi (P. W. 6) went to the police station and lodged the F. I. R. The accused were arrested and during the investigation the Police recovered the dead body of Zafar from the house of Akram petitioner. The blood--stained clothes of Akram and Afzal petitioners were taken into possession by the Police. Akram and Mushtaq petitioners also led to the recovery of blood-stained hatchets (P. 3 and P. 6 respectively), while Afzal and Waris petitioners led to the recovery of their blood-stained sotas.
3. At the trial the prosecution relied on the ocular testimony of Mst. Hussain Bibi (P. W. 6), Rashid Ahmad (P. W. 7) and Muhammad Aslam (P. W. 8), all of whom (as already mentioned above) are closely related to the deceased being his mother, brother-in-law and real brother, respectively. It also relied on the evidence of blood-stained clothes and recovery of weapons of offence recovered from the accused which were also found to be stained with human blood, as well as the medical evidence and the motive.
The accused pleaded innocence. Akram petitioner made the following statement: - "After the occurrence, I came to know that Zafar Ali deceased and two others had come to my haveli to commit theft. Muhammad Afzal and Siddique accused were present at my haveli while they were sleeping there. They got up and raised alarm which attracted some other people to my haveli. Zafar Ali deceased and his companions also inflicted injuries to Afzal and Siddique accused.
The other people who were attracted to the spot tried to capture Zafar Ali deceased and others who had tried to escape and in that process those people caused injuries to Zafar Ali deceased.
The two com--panions of the deceased succeeded in making good their escape. I and my co- accused have been falsely implicated in this case because of previous enmity, with the connivance of police."
In support of this version the petitioners produced five D. Ws.
4. The learned counsel for the petitioners submitted that the previous enmity, admittedly, existed between the parties and the eye-witnesses were hostile and inimical towards the petitioners. He submitted further that the prosecution story has such inherent flaws in it as cast serious reflection on the truth of the entire case. He submitted in the first place that it is extremely unnatural that six accused, who intended to kill Zafar and were armed with hatchets and lath, should first catch hold of Zafar (deceased) at about 2 Killas from the place where the fair was being held and drag him all the way to his own village and attack him only when they reached so near the village that his cries could be heard by the residents of the village. He points out that Mst. Hussain Bibi admittedly lives in the house of her son Zafar (deceased) along with her son Aslam (P. W. 8) and Mst. Maqboolan Bibi her married daughter, but on the night of occurrence, strangely enough, she left her young daughter alone in her house and slept in the house of her married son Mushtaq which happens to be near the place of occurrence. Another strange co-incident is that her son-in-law Rashid Ahmad (P. W. 7), the third eye-witness, who admittedly resides at Shahdara also happened to be sleeping in the house of aforementioned Mushtaq on that very night and thus happened to be present near the place of occurrence with the result that he too rushed to the spot in time to witness the occurrence. The counsel also pointed out that although two of the petitioners are said to have given the deceased blows with hatchets, yet, strangely enough, no incised injury was found on the person of the deceased. He argued that the High Court has misread certain portions of the evidence, on the record regarding the presence of blood on one of the sticks recovered from the accused. He also urged vehemently that the defence version as given by Muhammad Akrami petitioner appears to be more plausible than the prosecution version.
5. Having gone through the record it appears that there is considerable weight in the above-noted contentions and we feel that this is a fit case for grant of Leave for reappraisal of the entire evidence.
Leave is, therefore, granted for the said purpose.