1992 P Cr (PLP)

JUSTICE SAJJAD AHMED SIPRA, MEMBER

The State has preferred the present appeal against the acquittal of the respondent, Muhammad Sadiq, vide judgment, dated 5-11-1991, gassed by Mr. Justice (Retired) Ch. Muhammad Sharif, Judge, Special Court for Speedy Trial, Multan.

2. The charge against the respondent was under sections 302, 377/511, P.P.C. for attempting to commit unnatural offence with Allah Ditta, aged 14 years, son of Shamas Din and subsequently causing his death by firing at him with a pistol on 3-10-1991 at about 1-30/2-00 p.m. in his house situated in Chak No.89/E.B. Police Station Oaboola Sharif, District Sahiwal.

3. The complainant P.W.3, Shamas Din, and the accused/respondent, Muhammad Sadiq, lived in the accommodation provided by one Rana Ghulam Qadir. On the fateful day i.e. 3-10-1991, Allah Ditta deceased had come back from the school and gone to the house of the respondent. The complainant, on inquiring about his only son Allah Ditta, after having fetched the fodder, was informed by his wife that he had gone to the house of the respondent, and as the respondent was believed to be of bad character, therefore, apprehending that his son may not be subjected to some evil act, he took his brother Shcra P.W.6 and nephew Muhammad Hussain P.W.4 with him and went to the house of Muhammad Sadiq respondent. As they reached in front of the house of the respondent, they saw that he was trying to hold Allah Ditta in his grip and Allah Ditta was offering resistance, whereupon, within their view the respondent fired at Allah Ditta with pistol hitting him on his head. Allah Ditta fell on a cot lying nearby and the respondent succeeded in running away from his house. Shamas Din and the other two P.Ws. took Allah Ditta to the hospital, where he was medically examined, but expired after about half an hour.

4. Thereafter, leaving P.W.4 and P.W.6, named above with the dead body of Allah Ditta, the complainant, Shamas Din, went to the Police Station Qaboola Sharif and dictated the F.I.R. Exh.P.B. The police went to the hospital and prepared the inquest report. Dr. Tanvcer Ahmad P.W.5 performed the r autopsy on the dead body of Allah Ditta and observed the following injuries:-- . (1) Afire-arm wound 1 c.m. x 1/2 e.m. x going deep into brain with swelling 8 cm. x 8 c.m. on the right side of head. (2) A fire-arm wound 1 c.m. x 1/2 c.m. x going into brain deep on right side of head about 3 c.m. enterior to injury No.1. (3) A fire-arm wound 1 c.m. x 1 c.m. x bone deep on right side of the head 5 c.m. above right eyebrow. Blackening was present. (4)??????? A fire-arm wound 1 c.m. x 1 c.m. x bone deep with swelling 6 c.m. x 6 c.m. on outer angle of right eye. (5)??????? A fire-arm wound 2 c.m. x 1/2 c.m. x bone deep with blackening on right temporomandibular region. (6) No mark of injury or abnormality was detected on anal parts. According to this Medical Expert the death of Allah Ditta occurred due to this fatal injury to the brain 'which was sufficient to cause death in the ordinary course of nature.

5. The accused/respondent was arrested on 18-10-1991 and on 23-10?1991, he got recovered a carbine which he had buried in the roots of Keekar tree in the garden. After the completion of the investigation the challan of Muhammad Sadiq respondent was sent up.

6. In this case there were three ocular witnesses of the incident, namely, Shamas Din, Shera and Muhammad Hussain. Shamas Din P.W.3 had narrated the incident as stated in the F.I.R. He had testified that Sadiq accused who was not of a good character attempted to commit sodomy with his son who offered resistance and his son was fired at and murdered by the accused. When subjected to cross-examination, he conceded the fact that he never told Rana Ghulam Qadir, Shera or Muhammad Hussain about the character of the accused before this incident and his son was on visiting terms with the accused since the last year and the accused/respondent and his wife also used to visit their house. Towards the concluding lines of his cross-examination, the complainant stated that he was at a distance and could not hear the report of pistol shot and the people told him that his son had been murdered.

7. Therefore, the learned trial Court had come to the conclusion that by conceding, as stated above during the cross-examination, the complainant P.W.3 had demolished the prosecution case in toto. The learned trial Court had further observed that Shamas Din had brought Shera and Muhammad Hussain with him so that they may go to his house to bring Allah Ditta from the house of accused/respondent who was believed to be a sodomist. When Shamas Din said that he did not see the occurrence and people told him that his son had been murdered, then the statements of Shera and Muhammad Hussain lose credence. All the ocular witnesses are the close relatives of deceased and in such circumstances when complainant does not support the prosecution case, the rest of the ocular evidence does not merit any consideration. And had further observed that it may also be noted that both the families were on visiting terms with each other and they used to reciprocate their visits. Allah Ditta had been visiting the house of the accused/respondent' since last year and had the accused been not of a good character, it should have been known to Shera and Muhammad Hussain and Rana Abdul Qadir and the other people of the locality but there is nothing on the record to that effect. That the murder took place in broad daylight and that Ghulam Farid, Ahmad Ali and others also live in the vicinity of the house of accused, yet no independent witness was examined by the prosecution in the present case.

8. Therefore, taking all the above stated factors into consideration, the learned trial Court had extended the benefit of doubt to Muhammad Sadiq accused/respondent and acquitted him of the charges under sections 377/511 and 302, P.P.C., as stated above.

9. The present appeal was filed against the acquittal of the respondent, Muhammad Sadiq, by the State and it was admitted to regular hearing to examine the reason recorded for his acquittal by the learned trial Court.

10. The learned counsel for the State argued that the evidence on the record has not been treated in accordance with the established principles governing the appraisal of prosecution evidence. Further submitted that it stands admitted that the occurrence had taken place in the house of the accused/respondent. Further submitted that no enmity between the accused/respondent and the P.Ws. was established or even suggested. Further argued that there were no material improvements in the testimony of the P.Ws.. qua the incident, and that the ocular evidence was duly supported by the recovery of the crime weapon, and that the police has no reason to plant the him that his son had been murdered, yet as the other two P.Ws. namely; Muhammad Hussain P.W.4 and Sher Muhammad P.W.6, had duly supported the prosecution version, therefore, the acquittal of the respondent/accused was not warranted under the circumstances of the case.

11. On the other hand, the learned counsel for the respondent submitted that a fatal flaw in the prosecution evidence was that the presence of P.W.3, P.W.4 and P.W6 was not established on the spot at the relevant time, as by their own admission during the cross-examination, they were usually employed as labourers at the relevant time of the day. Further submitted that, in any case, as the complainant P.W.3, Shamas Din, who is the father of the deceased had clearly conceded during his cross-examination that he had neither heard the pistol shot nor had witnessed the occurrence, and that the people had told him about the murder of his son, therefore, the testimony of the other two prosecution witnesses of the ocular evidence i.e. P.W.4 and P.W.6, stands shattered, specially in view of the prosecution version that it was the complainant who had contacted them to take them along to go after the deceased. Further submitted that it is on the record that the parties were at visiting terms, that the respondent/accused Muhammad Sadiq was a married person, and that he was fond of the deceased boy, and that there was no proof of the said respondent being of a bad character and that his perverse nature or tendency had not been communicated to any one by the prosecution witnesses, therefore, the story, as set up by the prosecution, was highly implausible. In this respect further pointed out that neither the respondent had been examined for potency nor there were any marks on the deceased or any other evidence such as torn clothes etc. to establish that the respondent was forcibly trying to subject the deceased to his unnatural lust. In this respect further pointed out that at the Mated hours of the day i.e.1-30/2-00 p.m. a person shall make such an attempt in an open room situated next to the rooms in the same compound, where other families were residing, is highly doubtful. Further pointed out that then cot on which the deceased fell was on the side of the room whereas. As stated by P.W.6 Sher Muhammad and according to the site plan, the door was the middle, therefore, it creates serious doubt about the presence of the P.Ws. and their claim to have witnessed the occurrence from a distance. The learned counsel for the respondent further argued that the recovery in question of pistol P.5 and the empties in the pistol, P.6 and P.7 had taken place from the spot which was accessable to all, and hat in any case, the recovery by itself cannot corroborate the testimony. Further pointed out that the delay in the arrest of the respondent and the subsequent recovery is a mystery because there is nothing to show that the respondent had avoided arrest as noted by the learned trial Court. Therefore, summed up her submissions by arguing that the judgment of acquittal brought in by the learned trial Court was eminently in keeping with the safe administration of criminal justice, and that under the facts and circumstances highlighted there was no case ' made out for interference with the same.

12. We have given our anxious consideration to the submissions made by the respective counsel for the appellant and the respondent. We have also examined the entire record minutely with their assistance. We are constrained to observe that the learned trial Court was fully justified in holding that the ocular evidence was of sub-standard type. As pointed out by the learned trial Court, since the complainant P.W.3 had conceded that he had not witnessed A the occurrence as stated above, therefore, the evidence of the other two ocular witnesses i.e. P.W.4 and P.W.6 cannot be relied upon as it was their own case that they had been contacted by the complainant P.W.3 in the first place and` were accompanying him to bring the deceased. Present appeal being devoid of merits, is hereby dismissed. N.H.Q./29/SAC ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.