2002 PLP 1986 (SCMR)

KAHLIL‑UR‑REHMAN RAMDAY, J.‑‑‑Nazar Farid and his brother Munir Ahmed were tried by a learned Additional Sessions Judge at Pakpatan for the murder of one Hakim Ali. Through his judgment dated 12‑6‑1998 the said learned trial Judge convicted both the said brothers under section 302(b) of the P.P.C. and while he punished Nazar Farid with death, Munir was directed to suffer imprisonment for life on the said charge. Each one of them was also directed to pay Rs.50,000 under section 544‑A of the Cr.P.C as compensation to the legal heirs of the deceased or to suffer six months' S.I in default thereof. Criminal Appeal No.202 of 1998 filed by the said two convicts was allowed by the Lahore High Court through a judgment dated 25‑7‑2001 as a result of which both the said convicts were acquitted. Hence this petition, calling in question the abovementioned judgment of the Lahore High Court acquitting the, said two accused persons.

2. The occurrence had allegedly taken place at about 5‑30 p.m. on 21‑1‑1996 which was about sunset time on the said day of occurrence The said occurrence was reported to Jafar Ali, A.S.‑I (P.W.10) at about 9‑00 p.m. while the said A.S.‑I. claimed to be present at Malikpur and the formal F. I. R was then registered at the Police Station Saddar, Pakpatan at 9‑30 p.m. This Malikpur was admitted by the said A.S.‑I. to be 3 or 4 K.Ms. away from the place of occurrence. In spite of the claim of the Investigating Officer that he had reached the place of occurrence at about 9/le p.m. on the night of occurrence yet the dead body of Hakim deceased reached the hospital for post‑mortem examination the next day at about 1‑00 p.m., Needless to mention here that the said hospital was about 8/9 K.M. away from the place of occurrence. Even if it be presumed that the occurrence had taken place about 5‑30 p.m. as alleged, there is no explanation why it had taken the complainant 3‑1/2 hours to report the matter to Jafar, A.S.‑I. who was available only about 3/4 K.M. away from the place of occurrence. Likewise, there was no explanation as to why the dead body had reached the hospital at 1‑00 p.m. on the next day i.e. 22‑1‑1996 when the said hospital was only about 8/9 K.M. from the place of occurrence. From the above -noticed facts and circumstances, it was rightly concluded by the High Court that the, possibility of the occurrence having taken place well after sunset and the further possibility of the occurrence having gone unwitnessed could not be ruled out and in this view of the matter the benefit of the above‑noticed unexplained delays was rightly extended to the two accused persons.

3. Material improvements had been shade by the complainant while under examination at the trial. As per the F.I.R he had declared that he had not seen the two accused persons tiring shot at Hakim deceased but had only seen the two assailants running away from the place of occurrence after causing injuries to the said deceased persons. His case at the trial, however, was that he had actually seen the two accused persons from the front: had seen them firing shots at the deceased and had even given details of the injuries caused by each accused person. Similar was the position of the other two eye‑witnesses.

4. Jehangir complainant, his son Khadim Hussain and his nephew Muhammad Siddique had offered ocular testimony at the trial. As, has been noticed above Jehangir complainant is the father of the deceased while Khadim Hussain and Muhammad Siddique P.Ws. were a brother and a cousin respectively of the said deceased. It was the case of the complainant himself that they were entangled with the two accused persons in criminal litigation and as per their statements at the trial no compromise had been reached between them and the accused persons. They were thus admittedly, inimical and interested witnesses. A daughter of Siddique P. W.4 is the wife of Nazar Farid accused which daughter of the said P. W. had returned home after estrangement with the said Nazar Farid accused. This Muhammad Siddique P.W.4, in the circumstances, could also not be said to be an independent witness.

5. Report of the Forensic Science Laboratory whereby the three crime empties allegedly found at the place of occurrence were found to have been fired from a 7‑MM rifle allegedly recovered at the instance of Nazar Farid accused was offered by the prosecution as a piece of evidence corroborating the ocular testimony. The occurrence had taken place on 21‑1‑1996. Nazar Farid accused was arrested on 1‑2‑1996. The rifle in question had been allegedly recovered from him on 12‑2‑1995 and it was at least seven days thereafter i.e on 19‑2‑1996 that the crime empties in question had been received in the Forensic Science Laboratory. In the circumstances this piece of evidence is not credible and is of no assistance to the prosecution as against Nazar Farid accused. The same also militates against, the participation of Munir accused in the occurrence in question because none of the three crime empties had been found to have been fired from the rifle allegedly recovered at the instance of the Munir accused.

6. Having thus examined the evidence available on record, we find that no exception could be taken to the acquittal of the two respondents by the High Court.

7. This petition which is even otherwise barred by limitation by one day is dismissed and the leave is, therefore, refused. Q.M.H./M.A.K./J‑22/S Petition dismissed.