1989 PLP 1234 (SCMR)

USMAN ALI SHAH, J.‑‑This petition for leave to appeal has been filed by Umar Din petitioner and is directed against the judgment of the Lahore High Court, Lahore dated 25‑2‑86, acquitting the accused /respondent from the charge of murder. Masood Akhtar respondent was tried by the Addl. Sessions Judge, Kasur for the offence under section 302, P.P.C. for the murder of Faqir Muhammad deceased. The trial Judge convicted him under section 302, P.P.C. and sentenced him to life imprisonment with fine of Rs.5,000 to be paid on realization to the heirs of the deceased or in default to suffer further R.I. for three years. In appeal before the High Court, he was acquitted vide impugned judgment. The occurrence took place at 8.00 p.m. on 2‑5‑82 at Mauza Jaguwala Chak No.40 at a distance of 7 miles from Police Station Sarai Moghal, District Kasur. The F.I.R. was lodged by Mohammad Ramzan uncle of the deceased at 10.30 p.m on the same day which was recorded by A.S.I. Mohammad Zafar (PW‑14). The accused was arrested on 10‑5‑82 and blood‑stained daggar Ex.P.2 was recovered at his instance on 12‑5‑

82. There were three eye‑witnesses of the occurrence, namely, Muhammad Ramzan (P.W.8), real uncle of the deceased, Muhammad Ali (P.W.14) and Noor Muhammad. The motive for the occurrence according to the prosecution is that during the employment in Agriculture Department Faqir Muhammad deceased had developed illicit intimacy with Mst. Urfana Kausar, sister of the accused. Thereafter Faqir Muhammad got employment in the Sugar Mills Pathuki. About 18/19 days before the occurrence Mst. Urfana Kausar and her mother came to Jaguwala and both Mst. Urfana and Faqir Muhammad managed to perform Nikah on 13‑4‑82 at Pathuki with the only consent of her mother, but other family members of Mst. Urfana Kausar were annoyed with this Nikah. On 2‑5‑82 at 5 p.m. Faqir Muhammad brought Masood Akhtar brother of Urfana to his home, after having the evening meal at 8 p.m. On some pretext of walking the accused took the deceased outside the house and at an out place some hot words were exchanged between them as a result, the accused attacked the deceased with a daggar and killed him. Muhammad Ramzan (P.W.8) uncle of the deceased was pursuing them and according to him the occurrence was witnessed in addition to him by Muhammad Ali and Noor Muhammad. At the trial only Muhammad Ramzan appeared as an eye‑witness. Muhammad Ali was given up and Noor Muhammad did not appear. No explanation is given by the prosecution as to why Noor Muhammad did not appear for giving the statement. Thus in this case the only eye‑witness left is Muhammad Ramzan who being the uncle of the deceased is a highly interested witness and his statement cannot be said to be a natural one. The relations between the accused and the deceased were strained because of the marriage of Mst. Urfana Kausar with the deceased and this fact is borne out from the statement of Muhammad Ramzan and Mst. Nawab Bibi as they had persuaded Qari Muhammad Zafar Alvi, Imam Masjid not to perform the Nikah of Mst. Urfana Kausar with the deceased. Thus it is doubtful that in spite of such strained relations the deceased could choose to go out with the accused at such late hours of night. The medical evidence and ocular account in this case also suffer from contradictions. Muhammad Ramzan in the F.I.R. has stated that accused while sitting on the chest of the deceased, delivered daggar blows at the throat of the deceased. There is no mention by him in the F.I.R. of the injury on the head of the deceased by the accused with a blunt weapon, whereas according to the medical evidence there is extensive fracture of the skull which caused cerebral haemorrhage. This clearly makes the presence of the eye‑witness at the time of occurrence doubtful. Although the prosecution had tried, to make up. the deficiency by recording supplementary statement of the informant by introducing "mooni" to fit in the medical evidence and make it of corroborative nature. Muhammad Hussain Shah (P.W.5) had stated that on 2‑5‑1982 both the deceased and the accused had been roaming with him till 4 p.m. Thereafter he left them and went home, but later on at 6 p.m. he claimed to have seen the dead body of the deceased, whereas according to the prosecution the death of the deceased occurred at 8.00 p.m. which creates an apparent conflict between the statements of Muhammad Hussain (P.W.5) and Muhammad Ramzan informant (P.W.8). In view of the above discussion we are satisfied that the prosecution has failed to prove its case beyond any doubt against the respondent No.1 and thus the learned High Court was justified in the facts and circumstances of the case to acquit Mahmood Akhtar respondent from the charge of murder. The result is that, this petition has no merit and is accordingly dismissed. Leave refused. M.BA./U‑20/S Leave refused.