2006 PLP 1517 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Through this petition leave is sought against the judgment, dated 23-10-2002 passed by a learned Division Bench of the Lahore High Court vide which respondent was acquitted (in the case registered vide F.I.R. No.11, dated 14-6-1998 under section 302, P.P.C. for the murder of Dost Muhammad).

2. The prosecution story as given in the F.I.R. is that on the fateful day and time when the complainant along with his brother went to their lands for ploughing Muhammad Iqbal respondent raised a dispute with regard to demarcation of land for which purpose two persons named in the F.I.R. from the locality were called to settle. In the presence of the P.Ws. and the deceased the persons called installed 6/7 Burjies and when the last Burji was being installed Muhammad Iqbal armed with Gainti inflicted a blow on Dost Muhammad who fell down which was followed by second blow which proved fatal and he died at the spot. The motive alleged was dispute over demarcation of land. During trial seven witnesses were produced including the doctor to prove the prosecution case. The trial Court convicted the respondent under section 302(b), P.P.C. and sentenced him to death along with a fine of Rs.50,

000. The respondents' appeal however was allowed by the Lahore High Court vide the impugned judgment and he was acquitted.

3. Petitioner's learned counsel seeks leave on the ground that the learned High Court has not appreciated the evidence on record; that mere relationship of prosecution witnesses with the deceased would not discredit them and that it was a broad-daylight occurrence and there was no reason why the respondent should be falsely implicated.

4. As per the prosecution case it was a broad-daylight occurrence and there could be no question of mistaken identity. If that was so and P.W.5/complainant Rehmat Ullah and P.W.6 Aziz Ahmad had witnessed the occurrence they would not have erred in saying that two Gainti blows were given because as per the medical evidence the deceased received only one injury. And then, their conduct of not rescuing their blood relation or to apprehend the assailant is too unnatural to be true. The Gainti recovered from the spot was not blood-stained, therefore, the said recovery is of no consequence. No independent person appeared to support the prosecution case. In the background of the dispute over demarcation of land and in the face of the conflict between the ocular account and medical evidence, the absence of independent witness would make the prosecution story not free from doubt. In the afore-referred circumstances, the impugned judgment is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused. N.H.Q./R-41/SC Leave refused.