1984S C M R 42 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑This partition for special leave to appeal is directed against the judgment and order dated 19‑4‑1983 passed by the High Court of Sind, whereby Lal Beg and Bhagio respondents were acquit the, their appeal was allowed and their convictions under section 302 read with section 34 of the Pakistan Penal Code were set aside. They were both tried by the learned Additional Sessions Judge, Kandhkot, for the murder of Akbar Khan Jakhrani and were sentenced to death in addition to pay fine and compensation to the heirs of the deceased,

2. The occurrence in this case took place at 8 a. m. on 20‑4‑1979. when the deceased alongwith Shahbaz Khan complainant and Muhammad Usman (P.W.), had gone from their village to attend a Khairat in the village of Gul Muhammad Jakhrani. It is said that after taking their meals the three were returning to their village along the bank of the Pat‑feeder canal. When they had hardly covered a distance of a furlong they were ambushed by the said respondents, who after declaring the deceased as Man fired at him with their shot guns as a result of which he collapsed and breathed his last on the spot. The assailants after killing the deceased disappeared from the scene.

3. The respondents denied the charge at the trial and alleged that they had been falsely implicated as there was a long‑standing dispute and enmity between the parties, as well as multiple litigation in which both parties are involved.

4. The prosecution relied upon the ocular testimony of Shahbaz Khan complainant who is the nephew of the deceased. The other eye witnesses produced at the trial were Muhammad Usman uncle of Shahbaz. Khan complainant and Muhammad Sallah also a relative of the deceased and complainant. The respondents .were. arrested on 27‑4‑1979 while they were going together at Maghar Phatak although they belong to different villages and a licensed gun allegedly used in the crime was secured from Lal Beg. Two empties are said to have been secured from the scene of occurrence. These recoveries were relied upon as corroborating the ocular testimony.

5. The medical officer found three fire‑arm injuries on the deceased one on the right side of the skull with charring of the skin, one on the chest left side and one on the left hand thumb. The stomach of the deceased was, however, found empty. In the opinion of the doctor the deceased may have taken his last meals about 8‑10 hours prior to his death. He agreed with the suggestion that the first injury might have been caused by placing the muzzle of the barrel on the head, when the deceased was lying on the ground, As to the other two injuries, he opined that they could be sustained in the standing position.

6. Learned Additional Sessions Judge accepted the testimony of the alleged eye‑witnesses Shahbaz Khan, Muhammad Usman and Muhammad Sallah who furnished the ocular account of the incident. He also held that the ballistic. expert's report which. verified that the two .12 bore crime empties secured from the scene of occurrence matched with licensed gun secured from Lal Beg respondent connected the said accused with the crime. The learned Judges in the High Court, however, did not agree with the assessment of evidence by the trial Court. On examining the evidence of the alleged eye‑witnesses, they formed the opinion that their testimony is unreliable as it is inconsistent with the circumstances on record. They held that the witnesses had made material improvement in their version in order to make their evidence consistent with the medical evidence. In this connection it was pointed out that in the F.I.R. and in the police statements the witnesses had stated that they had all taken meals at the Khairat in the morning but in their statements in Court they had stated that Akbar deceased did not take the meals as he was advised by the doctor not to take beef. This improvement was made, in the opinion of the High Court, because the medical officer had found the stomach of the deceased empty. Another improvement referred to by the learned Judges of the High Court relates to the injury sustained by the deceased on the head causing exten sive damage to his brain and other organs. The version initially disclosed by these witnesses was that the two assailants had fired with their guns from a distance but in the Court they stated that Lal Beg fired two shots first as a result of which deceased was mocked down and fell on the ground. Thereafter. Bhagio came near the deceased and putting the muzzle of the gun on the head of the deceased fired a shot. From the medical evidence it is clear that the shot sustained by the deceased on his head was fired at a close range as indicated by the presence of the charring marks. Whereas the other injuries resulted from shots fired from a distance of more than four feet from the deceased. This was, therefore, considered as an improvement in order to bring in accord the ocular testimony with the medical evidence. These circumstances clearly indicated that the witnesses were eager to make substantial alteration in the material part of their account of the manner in which the deceased sustained injuries and, therefore, cast serious doubt on the veracity on their testimony. The learned Judges were, therefore not wrong in reaching the conclusion that the evidence of the eye‑witnesses is of a doubtful character and that the probabilities were that this was an unwitnessed crime committed during the night time. The investigation was also found deficient and improper, in that, there was nothing on the record to show whether the Investigating Officer had made any effort to secure the arrest of the two accused between 20th and 27th April, 1979, when he suddenly found them together at a place away from their respective villages. Finally the learned Judges also did not believe the alleged motive of `kayo kari' as there was nothing on the record to indicate with which woman the deceased . Was allegedly on illicit terms.

7. In support of the petition it was urged by the learned counsel that the learned Judges of the High Court have misread the evidence and based their findings on surmises and conjectures. It was submitted that the evidence of the three eye‑witnesses is not liable to be rejected as they were natural witnesses.

8. After hearing the learned counsel we are, however, not impressed by the submissions and are satisfied that the High Court has evaluated the evidence on the record in accordance with the well‑established principles of law. This case, therefore, does not call for interference by this Court. The petition, therefore, fails and is accordingly dismissed. S. Q. Petition dismissed.