1988 PLP 1128 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑The two brothers Syed Anwar Shah and Syed Mubarak Shah were tried for committing the murder of Muhammad Umar in their Hujra on 25th of September, 1980 at 8‑50 p.m. In regard to this incident the statement of Muhammad Tariq was recorded at Lady Reading Hospital, Peshawar, at 9‑15 p.m. which was sent to Police Station Kabuli for being incorporated in the F.I.R. Syed Mubarak Shah lodged the counter‑report at the same police station at 9‑20 P. M. alleging the commission of an offence under section 307, P.P.C. read with section 34, P.P.C. by the deceased and his brother Muhammad Tariq. Both the cases were tried separately. Muhammad Tariq in his statement stated that a report was lodged for the abduction of Azad Khan by his father Abdul Qayum against the deceased, but the matter was later compromised; and in regard to the lodging of the F.I.R. Muhammad Tariq complained to Syed Anwar Shah that he had a hand in the lodging of the report against his brother Muhammad Umar; that this annoyed Syed Anwar Shah who called the deceased, his brother Khalid Khan and himself to his Hijra and soon after an exchange of greetings Syed Mubarak Shah caught hold of the deceased while Syed Anwar Shah inflicted a knife blow which caused his death. At the trial the prosecution examined Muhammad Tariq and Khalid Khan. On being examined Syed Mubarak Shah stated that he was falsely implicated in the case admitting at the same time that a cross‑case under section 307/34, P.P.C. was registered at his instance. The trial Court considered the probabilities of the case and ultimately held that the ocular testimony was false and none of the witnesses had witnessed the occurrence. Accordingly, it absolved both the respondents from the charge of murder and acquitted them. There was no State appeal against their acquittal, but a revision was filed in the High Court which too was dismissed. The High Court again carefully assessed the evidence and held that the counter report filed by Syed Mubarak Shah was not proved, and, therefore, no benefit from its contents can be taken for establishing the presence of the deceased and Muhammad Tariq in the Hujra. And as for the credibility of the prosecution witnesses, it upheld the conclusion of the trial Court and dismissed the revision. The learned counsel for the complainant made an attempt in vain to seek benefit of the counter‑report, but legally the report was not admissible in evidence and all that can be said about it is that a report was lodged in point of fact but nothing beyond that. As for the evidence, the Courts below have concurrently reached the same opinion that it did not inspire confidence to support the charge of murder. The learned counsel also attempted to argue that at this stage we should take additional evidence to get the counter F.I. R . proved, but we do not think that this course is possible when the prosecution had an opportunity to get it proved at two stages of the case but failed to take any advantage of it. There being no substance in this petition, we dismiss it. M.Y.H./M‑432/S Leave refused.