1996SCMR486 (PLP)

ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal has been sought against the judgment of Sindh High Court, at Karachi, dated 21‑12‑1992, whereby the order of conviction passed by the trial Court against the respondents was set aside and they were acquitted of the charge. 2.' The facts in brief are that Mehdi Khan, the complainant, reported to the police on 9‑2‑1975 at 9‑20 p.m. that he alongwith his nephew Ghulam Qadir deceased resided at House No. 16‑C, Intelligence School near Queens Road, Karachi; that on 8‑2‑1975 Ikhlaq Ahmad accused came with his companions in a car and repeated blew horn. The complainant forbade them for doing so. Upon which the accused and his companions apologized and went away. On the following day i.e. 9‑2‑1975 at 2‑20 a.m. Ikhlaq alongwith his companions came to the complainant's house in two cars. On the knock of the door, the complainant and other family members came out from the house. The accused were armed with Dandas and knives. They attacked on the complainant party and injured them. Mehdi and Ghulam Qadir received the injuries. Ghulam Qadir received serious injuries. He was removed to the hospital, where he died. After usual investigation the accused were sent up to face the trial, under section 302, P.P.C. etc.

3. The learned Additional Sessions Judge found the accused guilty of the charge and convicted them on various counts. The accused challenged their conviction by way of separate appeals before the High Court, which were accepted vide impugned judgment. The prosecution relied upon the confession of Sher Muhammad and Nasim, motive, direct evidence, identification of the accused in identification test and recoveries. The learned High Court giving them the benefit of doubt acquitted them.

4. The learned counsel for the petitioner has assailed the order of acquittal on the ground that there is sufficient direct evidence against the respondents, therefore, conviction can be based on such evidence, as there was no‑previous enmity between the parties. He has not relied upon the confession and recoveries from the accused. It may be pointed out that Ikhlaq Ahmad had absconded after the incident. Sher Muhammad and Kala Khan died during the trial. The learned High Court excluded the confession on the ground that it was recorded after considerable delay and the accused were remanded to the police custody after recording their confession. The confession was also‑ exculpatory. In the identification parade Mehdi Khan P.W. identified the accused Abdul Majeed, Khaliq‑uz‑ Zaman, Nasim and Abdul Rehman, but he did not identify the rest of the accused. Similarly, ‑P.W. Imtiaz Ahmad identified only Kalay Khan accused. Muhammad Iqbal P.W. identified Sher Muhammad and Abdul Rehman. Shabir Hussain P.W. identified Kalay Khan, Sher Muhammad and Abdul Rehman. The learned High Court excluded this piece of evidence on the ground that none of the witnesses identified all the accused, therefore, in view of the defence version that the accessed were shown to the witnesses prior to the identification parade carried weight. The identification was further disbelieved on the ground that the ratio of‑dummies to be mixed with the accused was not in accordance with. law and it was held after long delay. As regards ocular testimony of the eye witnesses, the learned Single Judge has observed as under:‑‑ "No one except Akhlaque Ahmad is named as culprit for the incident that happened on the previous day or the actual incident of this case on the following day. F.I.R. does not give the names of any accused other than Akhlaque Ahmad nor the description or features of other accused are given in the F.I.R. It, therefore; seems that till F.I.R. was lodged, complainant Mehdi Khan did not know any accused other than Akhlaque Ahmad who has absconded. It has also not come in evidence that the rest of the accused were known to the witnesses since prior to the incident. May be that‑Akhlaque Ahmed was accompanied by some of his friends but it cannot be said with precision that the accused before the Court were the same who had come alongwith Akhlaque Ahmad. The statements of the witnesses recorded during investigation under section 161 of Cr.P.C. do not bear any date. The 1.0. Shamshad Khan Exh.43 stated before the trial Court, ' it is correct that the copies of the statements of P.Ws. Imtiaz, Iqbal and Sabir under section 161 of Cr.P.C. provided to the accused do not bear any date". This further shows that even if these three witnesses had named accused other than Akhlaque Ahmed in their statements before police, the same is inconsequential as it cannot be said as to when they were examined by police and how they came to know of the names of other culprits. The omission by the complainant Mehdi Khan to mention names of the appellants other than absconding accused Akhlaque Ahmad is admitted by him as well as by the I. O. who stated that the names of all of the rest of the accused were not given." The learned counsel for the petitioner has taken exception to the above observations and submitted that the accused were not known to the complainant and witnesses prior to the occurrence, therefore, their names could not be given in the First Information Report. As. the witnesses had identified the accused in the Court, therefore, the ocular testimony of the witnesses should not have been excluded by the High Court. This contention has no weight. The complainant Mehdi Khan in his deposition admitted that he knew five of the assailants prior to the occurrence, but he had not mentioned in his report that he knew all the assailants other than Akhlaque prior to the occurrence. The complainant did not give the name of the accused in his First Information Report, though he admitted at the trial that he knew some of the accused. It therefore, cannot be said that the High Court has misread the evidence, or the conclusion laid down by it is perverse. It may also be pointed out that some of the accused were also injured, but their injuries have not been explained by the prosecution witnesses. There is no mention of their injuries in the F.I.R.‑This case does not require reappraisal of evidence. For these reasons, we see no substance in this petition, which is dismissed and the leave refused. N.H.Q./I‑221/S Leave refused.