1. MUHAMMAD HALEEM, .J.--Zulfiqar, Nasar Khan, Niaz Ahmad and Inayat Ullah were tried for the murder of Lal Khan, a Councillor, on 31st of December. 1980, at 9-15 p.m. At Chauk Dakhana in Gojra Town, District Toba Tek Singh. Inayat Ullah was acquitted by the trial Court while the other three were convicted under section 302 read with section 34, P.P.C. Zulfiqar was sentenced to death while, the other two to imprisonment for life.
2. The motive which triggered the present incident was a dispute over Local Body's election. The deceased, who was opposed by the accused party, was elected and on the date of election in September 1979, Muhammad Idris, the brother of Nasar Khan, was murdered and in that case Faqir Muhammad father of the deceased and his brother Muhammad Ashraf were implicated alongwith other persons. However, the deceased through his influence got his father and one Idris Ahmad declared as innocent. This Idris Ahmad was not connected with either the complainant or the accused party. The conviction turned on the ocular testimony of Muhammad Sharif (P.W.7) and Muhammad Din (P.W.8) a Paleydar employed at the shop of Muhammad Sharif. Muhammad Ashraf, although named in the F.I.R., was given up as unnecessary witness.
3. The trial Court accepted the ocular testimony while convicting Zulfiqar and the other two accused.
4. On appeal and reference, the High Court acquitted all the three holding that in the absence of independent corroboration, the ocular testimony which was deeply interested and inimical towards these persons could not be accepted. Additionally, the High Court also relied on the statement of the D.S.P. Produced in defence whose testimony mainly related to his investigation and opinion as to the presence of two other witnesses namely, Tufail Muhammad and Naeem Zaffar whose presence, according to him, was most probable and that according to Naeem Zaffar it was Idris who had fired at the deceased. All this militated against the version in the F.I.R.
5. The learned counsel for the petitioner contends that the High Court wrongly took into consideration the material pertaining to investigation as that was inadmissible in evidence and that further the appreciation of the evidence qua its quality was not properly assessed in the facts and circumstances of the case.
6. Upon examining the material on record, we are of the view that the evidence requires re-appraisal in order to avoid miscarriage of justice.
7. Accordingly, while refusing leave to appeal against Inayat Ullah, we will grant leave against the other three namely, Zulfiqar, Nasar Khan and Niaz Ahmad to examine as to whether their acquittal was proper.
8. Bailable warrants in the sum of Rs. 25,000 to issue with two sureties in the like amount in each case to the -satisfaction of the Assistant Commissioner, Gojra.