1988 MLD 311 (PLP)

The revision petition is directed against the order dated 23-7-1986 of Additional Sessions Judge, Gujranwala, whereby learned Additional Sessions Judge had acquitted the respondent of the charge under Section 302/34 P.P.C.

2. Imran deceased aged 8-9 years, nephew of Baqir Hussain complainant went out of the house for playing, on 17-8-1985 at about 3-00 p.m. He did not turn up till evening. The search for the child did not bear any fruit. On the following day a Ruqqa was thrown in the house of Zakir Hussain father of the deceased at about 8/9-00 p.m., which, on opening, was found to contain information that the dead body of his deceased son was lying in the jute field of Sardar Arain. On reading the Ruqqa he. became unconscious. He gained consciousness on the following morning, whereafter he summoned his brother Baqir Hussain (complainant), Shahnawaz and Nazir PWs and showed them the said Ruqqa. The Police was informed and the dead body was recovered from the field or; the same day, i.e. 19-8-1985. The respondents were arrested and the challan was submitted to Court.

3. Statements of fifteen witnesses, in all were recorded at the trial. None of the witnesses, including the complainant stated anything about the eye-witness account. None of them made a statement of having seen the deceased last in the company of the respondents. No evidence of judicial or extra judicial confession was led. No evidence of recovery of anything, incriminating or otherwise, from the respondents, was produced at the trial. The only material evidence, apart from the medical evidence, at the trial, was the statements made A by Taj Muhammad PW 11 and Hanif Khan PW 13, both of whom stated that they had seen the respondents taking the dead body of deceased to the fields, on the day, the deceased was lost. Both of them stated that they had not disclosed the fact of having seen the respondents carrying away the dead body of the deceased, to anyone on account of having been threatened with dire consequences by the respondents.

4. The first three that they made disclosure, was after the registration of case. The other material evidence is the statement made by Zakir Hussain PW 9 father of the deceased who stated that 3-4 months prior to the murder of his son B he had a dispute with the respondents as he had refused to give water for irrigation from his tubewell to father of Azad respondent. He added that he had refused to give water as he had come to know that Muhammad Ali respondent was carrying on with his brother's wife (wife of Baqir Hussain complainant).

5. Both Taj Muhammad PW 11 and Hanif Khan PW 13 are related to the deceased as well as the complainant. Their conduct of having not disclosed to anyone including the father of the deceased and the complainant, the fact of their having seen the accused/respondents carrying away the dead body of the deceased, is definitely not compatible with the human conduct. No fear or threats could have stopped them from passing on this information. The whole village community was worried and looking for the lost child. Had they seen such an extraordinary thing, they could not have kept silent. Learned trial Judge, according to my assessment, therefore, rightly rejected their testimonies.

6. The evidence of motive also does not advance the case of the prosecution. Apart from the fact that no conviction can be based merely on proof of motive, the other important aspect of the matter is that the grievance of the accused/respondent's carrying on illicitly with the wife of the complainant and sister-in-law of Zakir Hussain PW 9, would have been to the complainants instead of the accused/respondents. In fact the respondents had taken up the plea that they were involved on that account. It is a case of practically no evidence. The revision petition which was filed fourteen months after acquittal of the respondents, does not possess any substance. The State had also refused to file appeal against acquittal. The revision petition is, therefore, dismissed being without merit. S.A./B-72/L Petition dismissed.