1984 P Cr (PLP)

Date of hearing: 18th August, 1983. By this Criminal Revision, the applicant Muhammad Ismail has called in question the acquittal of the respondents Hidayatullah and Saeedullah who are both brothers, in the Sessions Case No. 129 of 1977. The respondents were tried for the murderous attack on the applicant by VIIIth Additional Sessions Judge, Karachi who acquitted them, vide his judgment, dated 5th February, 1983.

2. It appears that following the attack on the applicant the law was set in motion by the F. I. R. lodged by one Haji Rahim Gul who was with the applicant at the time of occurrence. A few days prior to the occur rence Rahim Gul came in contract with the applicant Muhammad Ismail during their air journey to Karachi. Haji Rahim Gul who was scheduled to go for Haj pilgrimage was accommodated by the appellant in the house of his brother Capt. Ishaque who was then living in Sindhi Muslim Housing Society. On the day of occurrence which took place on 19th November, 1976 at about 8-15 p. m. both the applicant and Rahim Gul after saying their Isha prayers were returning home from the mosque. When they came in a narrow street near the Mosque with the applicant going a bit ahead of his companion, two persons came running and started firing from pistol at Muhammad Ismail, who was severally injured by the bullets. He ran for protection and called out Rahim Gul to give him support. It is said that Muhammad Ismail disclosed the names of the assailants to Rahim Gul telling him that they wanted to kill him on account of old feud. Meanwhile several other persons including the appellant's brother Capt. Ishaque were attracted on commotion. The police after making due investigation sent up the above two respondents to face their trial in the Court. But, as stated above they were ultimately acquitted.

3. Mr. S. S. Shaikh who appeared on behalf of the applicant Muhammad Ismail was heard at great length. The impugned judgment, has also been perused carefully, in the light of the learned Advocate arguments.

4. Besides Muhammad Ismail who was injured in course of the incident; Haji Rahim Gul was eye-witness to the occurrence. Un doubledly Haji Rahim Gul is an independent witness but he has not implicated the respondents. According to him he could not see the faces of the assailants due to night being dark. It appears the police did nut hold identification parade to test Rahim Gul if he could identify the respondents. In any case when he saw the respondents in the Court he frankly admitted that he could not say if they were the assailants.

5. If the evidence of Rahim Gul is excluded, the prosecution is left with the solitary word of the injured himself. It is admitted on both hands that the relations between the parties were bitterly estranged and they were inimical towards each other prior the incident Although Muhammad Ismail claims to have identified the respondents with the help of street light, he is belied both by his own witness Rahim Gul ands by medical evidence. As stated above Rahim Gul could not see the face of the assailants because it was dark at the time of occurrence. It was therefore, doubtful if even Muhammad Ismail could see the faces of the assailants muchless identify them in a momentry glimpse.

6. Apart from above, the learned trial Judge has made a note of the answer given by the doctor who had examined the injuries found On the person of Muhammad Ismail. According to the Doctor Muhammad Ismail could not have been in a position to speak immediately after receiving the injuries. The medical evidence shows that he had as many as 9 injuries mostly on vital parts of his body such as chest, abdomen and lumber region. The learned trial Judge has, therefore, rightly deduced` that after having received severe injuries he could not have spoken to Rahim, Gul and disclosed the names of the respondents to him.

7. In view of above circumstances the learned trial Judge did not think safe to place reliance on uncorroborated evidence of inured Muhammad Ismail., He, therefore, looked for independent corroboration but it was not forthcoming. In short excepting the solitary word of Muhammad Ismail who admittedly had enmity with the respondents prior to the occurrence, there is absolutely no other evidence to connect the accused with the commission of the crime. Therefore, the learned trial Judge has given convincing reasons in support of his order of acquittal.

8. Judged by any standard the impugned judgment is neither perverse not foolish. It appears to be based on sound reasoning. The learned counsel for the applicant has not been able to show that it stems from misreading or misappreciation of evidence. ' It is an admitted fact that even Government did not deem fit to file acquittal appeal against the impugned order. Accordingly there being no justification interfere with the said order, the criminal revision was dismissed by short order dated 18th August, 1983 for reasons to be recorded separately. Above are the reasons for the said order. M. Y. H Petition dismissed.