1990 PLP 1272 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑Leave to appeal has been sought against the judgment of the Lahore High Court dated 9‑5‑1987 whereby the appeal of the petitioner Muhammad Younas was dismissed and sentence of death was confirmed, and the revision petition against the acquittal of Fazal Elahi and Saleem Akhtar, was dismissed. Muhammad Younas, petitioner, has sought the reversal of the order of conviction whereas Abdul Rehman, petitioner /complainant has filed this petition against the acquittal of the two respondents.

2. The prosecution case is that on 25‑7‑1982, Muhammad Younas accused fired a shot with his gun at Abdul Khaliq deceased. Salem Akhtar accused then fired a gun shot in the air and Fazal Elahi shouted a Lalkara. The occurrence was witnessed by P.W. 6 Abdul Rehman and his brother P.W. 9 Muhammad Ali besides some other co‑villagers. Fazal Elahi and Muhammad Younas are brothers whereas Saleem Akhtar is their Khalazad. The motive for the said incident as alleged by the prosecution was that Mst. Irshad Begum sister of Saleem Akhtar was murdered a few years before the present incident. Abdul Khaliq deceased and some others were tried for her murder, but were acquitted. The present murder was committed by the accused persons to take the revenge of Mst.Irshad Begum. The learned Sessions Judge convicted Muhammad Younas under Section 302, P.P.C. and sentenced him to death and fine of Rs.5,000 in default whereof to undergo R.I. for two years. The fine on realization was directed to be paid as compensation to the legal heirs of the deceased. The co- accused Fazal Elahi and Saleem Akhtar were acquitted.

3. Learned counsel for the convict Muhammad Younas, has submitted that there are two eye‑witnesses of the incident i.e. P.W. 6 and P.W.

9. Both are real brothers and uncle of the deceased. The statements of these witnesses have not been accepted by the learned Sessions Judge and the High Court therefore it is not safe for the dispensation of justice to convict the petitioner Muhammad Younas on the evidence of interested witnesses. This contention has no force. The presence of these two eye‑witnesses at the spot has been established. They had seen the incident. They have categorically stated that the petitioner Muhammad Younas had fired with his gun at the deceased. The injuries, I according to the medical evidence, were caused by means of fire‑arms. The case of the two acquitted accused is distinguishable as one of them is alleged to have fired in the air. There is no allegation that he had fired at the deceased, though he was armed with a gun. The other accused had merely raised a Lalkara. The learned High Court in para 13 of the judgment has observed as follows:‑

"We do not find any merit in the revision petition in that, the statement made at the trial that Fazal Elahi had raised a Lalkara, was not found to have been stated in the F.I.R. by the complainant and in the statement u/s 161, Cr.P.C. by Muhammad Ali P.W., while the shot said to have been fired by Saleem Akhtar, even according to the P.Ws. was in the air and was tired after the deceased had already been hit. There is no corroboratory evidence about their participation in the occurrence. The appraisal of evidence done by the trial Judge qua them is well reasoned and is based on facts."

4. There is no escape from the conclusion drawn by the learned High Court in rejecting the revision petition against their acquittal. The evidence was correctly appreciated in its true perspective. The case of the acquitted accused cannot be equated with Muhammad Younas petitioner. Therefore, it cannot be said that the entire case against the three accused rests on the same evidence. Apart from the direct evidence corroboration was sought from motive and the medical evidence.

5. The learned counsel then submitted that the evidence with regard to injuries does not support the ocular evidence as according to the prosecution case, the accused had fired one shot at the deceased but according to the doctor, there were two injuries on the person of the deceased. Though the doctor has given an obliging statement but the learned Sessions Judge and the High Court have accepted the ocular testimony. There is no principle of law that in each and every case doctor's evidence must have preference over the direct evidence. If the witnesses have seen the incident and they, have implicated the accused and their statements have been accepted by the Courts then any conflict with the evidence of expert does not detract the evidentiary value of the eye‑witnesses. We, therefore, see no reason to re‑appraise the evidence, as contended by the learned counsel. The evidence has been properly assessed. As such, there is no force in this contention. The next contention raised by the learned counsel is that according to P.W. 6 the incident had occurred at 12 or 1 p.m. According to P.W.9 the incident occurred at 9 and 10 a.m. but according to doctor, the occurrence had taken place between 5 to 7 a.m. These witnesses had given the time of incident approximately. Additionally, P.W. 6 in the First Information Report had stated that the occurrence took place at 2 p.m. and he explained that by Rotiwela he meant 12 noon or 1 p.m. Minor discrepancies in the evidence' do not mean that the witnesses have not stated the true facts. The conviction is based on material evidence therefore we see no force in this petition. Leave to appeal is, therefore, refused.

6. As regards Criminal Petition No.74‑R of 1987 filed by the complainant Abdul Rehman, against the acquittal of the two respondents, the learned counsel has not been able to satisfy us that the reasons recorded by the learned High Court in Para 13 of the judgment (reproduced above) are perverse and require, re‑appraisal by this Court.

7. The learned counsel's next grievance is that adequate compensation has not been directed by the Court. The compensation has been awarded as such the provision of law has been complied with. There is no ground for interference with the order passed by the learned Sessions Judge with which the High Court had concurred. Leave to appeal to the complainant Abdul Rehman is also refused.

8. Both the petitions have no force and they are dismissed as such. N.H.Q./M‑1381/S Petitions dismissed.