2003 PLP 611 (SCMR)

2. The deceased of the present case was Mst. Imtiaz Begum who was a widow and was residing in Village Ghanoola falling in the area of Police Station Bhalwal where she owned a substantial area of land and was thus described as a big land lady of the area. She had four brothers. Two of the said aforesaid brothers were working as D.S.Ps. in the Police Department during the days of occurrence while the other two including Liaqat Hussain complainant were serving as Bank Officers.

3. Amongst the accused persons. Aslam and Falk Sher are real brothers. Mst. Sakina Bibi is their real sister while Mammun is their brother -in‑law. Aslam, Mst. Sakina and Mammun accused were working as the personal house hold servants of Mst. Imtiaz deceased during the days of occurrence and had been working as such for a fairly long number of years i.e. 3 to 4 years.

4. Liaqat Hussain complainant had alleged that on the day of occurrence he and his Mamoon Zad, namely, Ahmed Yar (given up) had gone to the house of the deceased in village Ghanoola at about 2‑00‑p.m.; that while they were sitting there, Mst. Imtiaz deceased expressed her desire to go to Sargodha to do Eid shopping for her children and also to see Zameer Hussain (a nephew of Liaqat P.W. and Mst. Imtiaz deceased) who was lying, admitted in a hospital in Sargodha; that at that stage the tractor driver, namely Saleem Khan P.W. came there and told the deceased about her turn of water for irrigating her lands at which the deceased took out Rs.2,000 from a total Rs.13,000 which the deceased had knotted in her Dopatta and gave the same to Saleem Khan for purchasing pesticides that Mst. Sakina accused was also present there at that time and thereafter Mst. Imtiaz Bibi deceased told the complainant to come to her orchard at about 5‑00 p.m. from where they would go together to Sargodha. The complainant had further alleged that Mst. Sakina accused then went away to her house and after about 2 hours the deceased went away to her fields. He had further claimed that he along-with the above‑mentioned Ahmed Yar (given up) reached the orchard of the deceased at about 5‑00 p.m. in their motor‑car and saw that Mammun accused had caught the deceased from her neck while Falak Sher accused armed with a gun, Muhammad Aslam accused armed with a carbine and Mst. Sakina, empty‑handed were grappling with the deceased who was resisting, them. The complainant had further alleged that Muhammad Aslam accused then tired a shot at the deceased from her back as a result of which she fell down and died. The complainant had further disclosed that on checking up, it transpired that cash amounting to Rs. 14,000, two gold rings, one wrist‑watch and the Identity Card of the deceased which she was carrying on her, were missing. The complainant had claimed that the accused persons wanted to rob the deceased of her valuables and had murdered her in the process.

5. Mst. Sakina Bibi and Mammun accused were arrested on 9‑4‑1994, while Aslam accused had been arrested prior to the said date. As per the record, Falak Sher accused disappeared after the occurrence; was declared a proclaimed offender and could be arrested on 7‑8‑1996.

6. On account of non‑availability of Falak Sher accused, his case was separated from the case of the other three accused persons who were tried by a learned Additional Sessions Judge at Bhalwal who found all three of them guilty of Qatl‑e‑Amd and robbery through his judgment dated 7‑2‑1996. Consequently, each one of Aslam and Mammun accused, upon their conviction under section 302/34, P.P.C., was punished with death with a tine of Rs.10,000 while Mst. Sakma upon her conviction on the said charge was directed to suffer imprisonment for life. All three of them were punished with seven years' R.I. and a tine of Rs.5,000 or six months' R.I. in default of payment of fine, pursuant to their conviction under section 392/34, P.P.C.

7. As has been noticed above, Falak Sher was arrested on 7‑8‑1996 and upon his trial by a learned Additional Sessions Judge at Bhalwal he was also convicted under, section 302(b)/34. P.P.C., through a judgment dated 14‑10‑1999 and was sentenced to suffer imprisonment for life with a direction to pay him to Rs.30,000 under section 544‑A, Cr.P.C. or to undergo six months' R.I. in default of payment of the said compensation. Upon his conviction under section 392, P.P.C., he was punished with seven years' R.I. and a fine of Rs.10,000 or six months' R.I. in default of payment of fine. 8 Aslam, Mammun and Mst. Sakina impugned the conviction and punishments recorded against them before the Lahore High Court through Criminal Appeal No. 167 of 1996 while Falak Sher challenged the conviction and punishments recorded against him through Criminal Appeal No.6‑J of 2000. Both these appeals were heard and decided by the Lahore High Court on the same day i.e. on 3‑12‑2001 anti allowed through separate judgments. As a result of the acceptance of their appeals, all the four convicts were acquitted of the above‑mentioned charges levelled against them.

9. These two petitions filed by Liaqat complainant, as has been mentioned above, call in question the said acquittal recorded in favour of the said four accused persons.

10. We have heard the learned counsel for the complainant/petitioner at some length and have perused the record.

11. Liaqat Hussain complainant is a real brother of the deceased who was working as alt officer in the Bhalwal Branch of the United Bank, Limited. It was never his case that lie was either on leave on the day of occurrence or that the Bank was closed on the said date. The Banking hours are from 9‑00 a.m. to 5‑00 p.m. although the public hours are only till 1‑00 p.m. He admitted while under cross‑examination that he had no special reason to go to the house in his sister on the day of occurrence at 2‑00 p.m. Therefore, the claim of the complainant that he had gone to the house of his deceased sister at 2‑00 p.m. i.e. during his office hours and that also when he had no special reason for the same, is open to serious exception. Even if it be presumed that Mst. Imtiaz deceased had to go to her orchard then it is not understandable as to why she could not meet tier brother in her house at 5‑00 p.m. to go to Sargodha and why the rendezvous had been fixed as the fields of the deceased. The occurrence had taken place on the 8th day of the month of March when the sun set is around 6‑00 p.m. The deceased allegedly planned to go to Sargodha which is at quite a distance from village ghanoola inter alia, for the purpose of hopping. The deceased having decided to go all the way to Sargodha from her village and it make purchases at night and then to return to her village is also a claim which is not easily digestible. Liaqat complainant was thus more than a chance witness who had no plausible and acceptable explanation for his presence in the house of his deceased sister at 2‑00 p.m. on the day of occurrence or for his presence at the place of occurrence at 5‑00 p.m.

12. Similar was the position of the other eye‑witness offered at the trial, namely, Muhammad Ashraf. He is not a resident of Village Ghanoola where the occurrence had taken place and was in fact resident of Chak No.61 Shumali. The reason offered by him for his presence in Village Ghanoola on the day of occurrence was the proverbial reason of purchasing a buffalo which was never purchased. He is therefore also a chance witness.

13. The purpose for which the crime in question had been cotnmitted was to take away some cash and some other valuable i.e. two gold rings and a wrist‑watch of Mst. Imtiaz deceased. As has been noticed above, three of the aforesaid alleged culprits namely Aslam, Mammun and Mst. Sakina were the personal house hold servants of Mst. Imtiaz deceased who had been working in her house for a fairly long period of time. They thus always had access not only to the valuables allegedly looted by them as a result of the occurrence in question but to much and many more. If it was the desire of these accused persons to lay their hands on the valuables of the deceased then they could have achieved the said object by exploiting some opportune opportunity in the very house of the deceased and they did not have to get together after arming themselves with fire‑arm weapons to grapple with the deceased lady in the open fields where a large number of other persons working in their fields or on the thoroughfare could also be present and then to kill the deceased only to secure Rs.11,000 in cash, two gold rings and one wrist‑watch. It also sounds strange that when at least three male persons out of whom two were armed with fire arms, were available to conanit the alleged looting, why did they have to associate a female to accomplish their alleged design. In view of these reasons and others, the prosecution case does not inspire confidence and falls for short of sounding probable to a man of reasonable prudence.

14. Disappearance of an accused person could have ordinarily offered useful corroboration to the prosecution case. But this is so only in a situation where the prosecution case is reasonably believable to some extent acrd requires some corroboration for proof of the same which is not the situation in the present case. The doubts expressed by the High Court about the availability of crime empty at the place of occurrence when only one shot had been fired from a gun, could not be said to be doubt which was misplaced.

15. Having thus examined all aspects of the matter, we find that it could not be said that the acquittal recorded in favour of the four accused persons by the High Court proceeded on reasons which were perverse or whimsical.

16. Therefore, we find no merit in both these petitition which are accordingly dismissed and leave refused. N.H.Q./L‑28/S Leave refused.