1989 P Cr (PLP)

Muhammad Arshad Khan for the State. Date of hearing: 31st July, 1985. Nur Muhammad, petitioner herein has filed the instant revision challenging the order, dated 22nd September, 1973, passed by Sessions Judge, Gujrat, acquitting Munir Ahmad, respondent from the murder charge.

2. Briefly the prosecution story was that Munir Ahmad, respondent, had illicit connections with Mst. Sakina Bibi, the deceased in the case. Five/six days before the occurrence the deceased told Mst. Fazalan Bibi (P.W.5) that the respondent had asked her to elope with him but she refused, whereupon he had threatened to kill her.

3. On the fateful night, i.e. 23‑9‑1971, Mst. Sakina, deceased, slept in her house under a mosquito net while her children including her son Khalid Pervaiz (P.W.11) aged 11 years were asleep close to her. At the dead of night, the respondent allegedly trespassed into the house of the deceased and tired two shots, at her as a result of which she died. Khalid Pervaiz (P.W.11) hearing the reports of gun‑fire woke up and in the meantime Ahmad Khan (P.W.9) and Yousuf (P.W.10) both neighbours of the deceased arrived. Yousuf P.W. threw light of torch and saw Munir Ahmad, respondent armed with pistol making away from the spot. Ahmad Khan P.W. then informed Muhammad Khan, brother of Nur Muhammad (husband of the deceased) who went to Police Station Kharaan at a distance of five miles from the spot and lodged F.I.R. Exh.P.A. with Raja Pir Muhammad S.I. (P.W.14) who investigated the case, arrested the respondent and challaned him to Court.

4. Dr. Abdul Majid (P.W.1) who conducted post‑mortem examination noted two gun‑shot injuries on dead body of Mst. Sakina deceased, which resulted in her death. Yusuf P.W. produced torch (P.1) before the police during the investigation.

5. At the trial 16 witnesses were examined including three eye‑witnesses, namely, Ahmad Khan (P.W.9), Yousuf (P.W.10) and Khalid Pervaiz (P.W.11), Khalid Pervaiz P.W. is son of the deceased. Ahmad Khan and Yousuf P.Ws. are neighbourers of the deceased. The respondent denied the allegation when examined under section 342, Cr.P.C. Learned trial Court on consideration of the material on record found the eye‑witness account unreliable as being discrepant and conflicting with medical evidence and acquitted the respondent. As the State declined to file appeal against acquittal, therefore, the husband of the deceased had preferred this revision against the respondent. It was admitted to regular hearing on 13‑5‑1975 and has come up before me for final hearing today after 14 years.

7. I have gone through the record with the assistance of learned counsel for the petitioner as well as for the respondent and State.

8. Admittedly, the night of occurrence was dark. Ahmad Khan (P.W.9, and, Yousuf (P.W.10) lived at some distance from the place of occurrence. It is, I therefore, not believable that having woken up from sleep on hearing report of the gun‑fire they had reached so swiftly at the spot while the respondent was still present there and had identified him in torch light. The assailant, whosoever he was, had chosen dark night for accomplishing his design concealing his identity so he would have disappeared within seconds after firing two shots in quick succession. To overcome this difficulty Ahmad Khan P.W. stated that there was interval of 10 minutes between first and the second gun‑fire while Yousuf (P.W. 10) stated that it was 2 minutes. Khalid Pervaiz (P.W.11) the son of the deceased stated that there was hardly any interval between the two shots. Again‑Ahmad Khan P.W. stated before Committing Magistrate that Khalid Pervaiz P.W. did not tell them anything, but Yousuf P.W. stated that on their inquiry Khalid (P.W.11) told them that the respondent had killed his mother. The aforementioned discrepancies indicate that they had neither seen the occurrence nor the assailant, making away from the spot. Had they seen the occurrence themselves they would not have asked Khalid Pervaiz P.W. about it. Presence of Khalid Pervai7 (P.W.11) is, however, beyond doubt, but he is a child witness. He stated before the Committing Magistrate that P.Ws. arrived 10/15 minutes after the occurrence. He admitted that he was frightened due to firing and had closed his eyes and covered his face with Chaddar. So, in the dark night and in a tension charged moment Khalid Pervaiz P.W. could not be expected to have identified the assailant of his mother in a momentary glance. In the circumstances, to my mind, it is not safe to act upon the testimony of the aforesaid eye‑witnesses and the learned trial Court rightly discarded the same. The order acquitting the respondent passed by the learned trial Court is neither perverse nor violative of any established principle of safe administration of justice in criminal cases. The impugned order is, therefore unexceptionable and calls for no interference. Dismissed. SA./N‑182/L Revision dismissed.