1988 PLP 955 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑The petitioner who is a complainant seeks leave to appeal against the acquittal of Salim Akhtar and Muhammad Rashid for the murder of Shabbir Ahmad Usmani. The deceased was married to Mst. Khatoon, a sister of Salim Akhtar wjio was, at the relevant time, residing with her brother on account of marital dispute and had filed a case for her maintenance which was pending in a Court at Gujar Khan. It is not disputed that on the date of occurrence, that is, 22nd September, 1981, he had gone to attend the hearing, and there he was joined by his brother Muhammad Rafique, who came from his own village Daultala which was about 15 miles away. After attending the hearing of the case, the deceased returned alongwith Muhammad Rafique and a military sepoy Shabbir Ahmad and while they were in the house of the deceased, he was stabbed by Salim Akhtar and Islam Din when he was lying in another room on a cot. After the event they fled away. It was alleged that the occurrence was witnessed by Muhammad Rafique (P.W.4), Mst.Sardara Jan (P.W.6) and Shabbir Ahmad, who was not examined at the trial. The evidence of the recovery of knife was not believed and the only evidence on which the conviction rested was the ocular testimony of Muhammad Rafique and Mst.Sardara Jan. Muhammad Rafique is the brother of the deceased while Mst.Sardara Jan is the second wife of the deceased who was then residing with him in the house. The High Court, however, concluded that it was an unwitnessed crime. In holding so the High Court noticed the improbable features of the case such as those mentioned hereafter. Although it was alleged that after the deceased was injured, he came out of his room and fell in the Verandah where he bled profusely. Muhammad Rafique thereupon lifted him and placed him on a cot and in this process his hands and clothes were smeared with blood, but significantly neither the blood was secured from the Verandah nor was it noticed on his hands and clothes. Besides, Muhammad Rafique resided at a distance of 30 miles from Rawalpindi in a village where he dealt with in spare parts. The fact of his having gone from his village to Gujar Khan to attend the hearing and from there to return in the company of Shabbir Ahmad and the deceased to his own house at Rawalpindi was regarded as highly doubtful in the context of his own statement at the trial that he came out from the other room after the deceased was injured and had fallen down and also from the fact of the absence of the blood in the Verandah and on his person. His further statement that he had gone to a policeman for advice and remained with him for two hours before he took the deceased to the hospital and the further fact that Mst.Sardara Jan was present in the house and had gone to the hospital alongwith the deceased were themselves suspicious circumstances. Again Mst . Sardara Jan who claimed to have seen the incident and to have gone to the hospital along with the deceased was not produced for examination until after seven days. The Investigating Officer in his testimony had disclosed that he did not see the lady in the hospital although he stayed there for three hours, itself belied the ipsi dixit of Mst.Sardara Jan and went further to disprove her presence. In that view of the matter, the High Court felt hesitant to accept the presence of Salim Akhtar at the time of occurrence. The presence of injury on the person of Salim Akhtar, which was noticed on the second day, was also not explained by the prosecution witnesses B and Salim Akhtar had himself explained it saying that he received it on account of some natural cause. Therefore, we do not see any ground to reappraise the evidence when the High Court had properly reviewed it and held to be unacceptable for proving the charge of murder. Accordingly, the petition is without substance, and is dismissed. M.Y.H./M‑396/S Petition dismissed.