1994 PLP 1872 (MLD)

SH. RIAZ AHMAD, J.

The respondents Ghulam Mustafa, son of Nazir, Nazir Ahmad and Muhammad Ishaq both sons of Muhammad Sharif were tried by the Additional Sessions Judge at Chunian on charges under section 302/201 read with section 34 of the Pakistan Penal Code for having committed the murder of Muhammad Yusuf (deceased).

2. Vide judgment, dated 23-7-1992, the learned Additional Sessions Judge acquitted the respondents on the aforesaid charge and the State has filed appeal bearing No.1025 of 1992 and the complainant has also filed revision petition bearing No.526 of 1992, to assail the aforesaid acquittal. This judgment shill dispose of both the appeal and the revision.

3. The prosecution case in brief, as stated by the complainant, mother of the deceased Asma Bibi is that her son Muhammad Yusuf had friendly relations with respondent Ghulam Mustafa. On 28-8-1991, she had gone to the field in order to deliver food to her deceased son Muhammad Yusuf and also took alongwith her Rs.8,000 which were to be paid to Anwar P.W. from whom this amount had been borrowed. According to the complainant, she delivered the amount to her son asking him to pay back the loan taken by her to Anwar, P.W. At that time, respondent Ghulam Mustafa was also present with her son. The deceased Muhammad Yusuf could not go to Chunian on the same day for the payment of the amount to Muhammad Anwar. At about 7/8 p.m. respondent Ghulam Mustafa took Muhammad Yusuf alongwith him. Muhammad Anwar P.W. came to Mst. Asma and demanded the borrowed money; she told that she had already given that amount to her son for its Payment to him. Muhammad Yusuf did not return to the house and thus the complainant alongvith one Mansha and Anwar P.W. proceeded to search out Muhammad Yusuf and when they reached near the Dhari of Ghulam Mustafa, they saw Ghulam Mustafa armed with a gun while Nazir and Ishaq were also there armed with Sotas. They were standing in the maize crop. Nazir and Ishaq respondents inflicted Sota blows while Ghulam Mustafa fired at Yusuf hitting his right buttock. On the receipt of these injuries, Yusuf fell down on the ground and breathed his last. The respondents took out the money from his pocket and dragged his dead body to the Dhari. The complainant proceeded to inform the police about the occurrence and thus after due investigation, the respondents were sent up to face their trial.

4. The prosecution has relied upon the testimony of three eye-witnesses to prove its case. Muhammad Mansha P:W.4 and Muhammad Anwar, p,wa were chance witnesses and they had failed to bring on record satisfactory explanation about their presence on the scene of occurrence. Muhammad Anwar, P.W.7, is a resident of Chunian which is at a distance of 9/10 miles from place of occurrence and his presence is doubtful because it was not the prosecution case that a promise was made with him for the repayment of the amount at the house of the complainant. To the contrary, the complainant had given this amount to her son for making its payment to Anwar at Chunian, therefore, the trial Judge has rightly disbelieved Muhammad Anwar. As far as Muhammad Mansha, P.W. is concerned, he was present outside in the street near the house of the complainant and was in fact proceeding to fetch medicines. We are, therefore, of the considered view that no miscarriage of justice has taken place and the learned trial Judge was justified to reject the testimony of these two witnesses.

5. The defence plea is more probable and reacts upon the prosecution, case. According to the defence plea, some thieves had entered the Dhari of the 6 respondent Ghulam Mustafa where he was sleeping to guard the cattle. On the entry of thieves, he woke up and saw that one of the thieves was trying to steal his buffalo. He raised hue and cry whereupon he was fired at and in retaliation, he also fired which injured one of the thieves who was holding the string for taking out the buffalo from the Dhari. According to the respondent Ghulam Mustafa, early in the morning, he made announcement in the mosque that some thieves had trespassed into his Dhari and had also fired at him and had come to steal his buffalo when he also fired at the thief who was trying to steal his buffalo and it was at that time, the deceased was identified as Muhammad Yusuf. Mst. Asma only remaining eye-witness admitted that there was some announcement in the mosque but denied her son was thief coupled with the circumstance that the eye-witnesses also made improvements with regard to the time of the commission of offence inasmuch as in their statements under section 161, Cr.P.C, they stated that the occurrence took place at sunset time while at the trial they stated that it was Isha time. The prosecution story do not inspire confidence and could not be proved. The occurrence, according to the prosecution, allegedly took place in the maize crop. The Investigate Officer admitted that he saw maize leaves stained with blood but strangell enough, they were not taken into possession. As far as dragging is concerned, there was no trail of blood, although an attempt was made to explain about its absence on the ground that there was water in the field. All these circumstances clearly show that the prosecution has been able to prove its case beyond any reasonable doubt and, therefore, the learned trial Judge rightly acquitted the respondents on the said charge. Hence, we do not find any ground to interfere with the acquittal and, thus, the appeal as well as the revision petition both are dismissed. N,H.Q./S-466/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.