1988 P Cr (PLP)

Shaukat Ali Saqib for Petitioner. Date of hearing: 12th July, 1987. This criminal revision filed by the complainant is directed against the judgment of the learned Additional Sessions Judge, Kasur, dated 20-4-1974, whereby Muhammad Shafi accused /respondent was acquitted of the charge of murder.

2. Facts relevant for the disposal of this revision, briefly stated, are that Muhammad Shafi accused was put on trial before the learned Additional Sessions Judge, Kasur, on the charge of committing murder of Sarwar deceased. Prosecution case, as set up in the F.I.R. was that on 18-8-1971 at about 'Peshiwela', Muhammad Sadiq complainant alongwith his son Muhammad Sarwar deceased, Muhammad Din P.W and the accused Muhammad Shafi were playing cards at the shop of Hassan Mochi P.W., who at that time was busy repairing the shoes. An altercation allegedly took place between Shafi accused on one side and Muhammad Sarwar deceased and Muhammad Din P.W. on the other and they exchanged abuses. They were, however, separated by the complainant, one Jamil and Hassan Mochi. Accused then went to his home but others remained sitting in the shop of Hassan Mochi. A little later, the accused came back armed with a single-barrel gun. On seeing him, Sarwar deceased got up. The accused fired at Muhammad Sarwar which hit him on his left chest and left arm. On receiving the gun-shot, Sarwar fell down and expired instantaneously. Motive alleged in the F.I.R. was that the accused picked up a quarrel and killed Sarwar deceased because of a grudge that Sardar Ali, the paternal uncle of the deceased, was not delivering possession of some land which was' allocated to the accused's father Shah Muhammad in. consolidation proceedings 9/10 years before the occurrence.

3. After registration of the case, investigation was taken in hand by Noor Muhammad S.I. P.W.9. He prepared the inquest report and injury statement of the deceased and sent the dead body for autopsy. He then secured the blood-stained earth and some pieces of blood stained leather from inside the shop of Hassan Mochi vide memo. Exh.P.B. Playing cards 52 in number produced by Hassan Mochi were also taken into possession vide memo. Exh.P.C. On the same day, viz. 18-8-1971, Muhammad Din P.W. produced an empty cartridge Exh.PZ which was taken into possession by the Investigating Officer vide memo. Exh.P.A. On that very day, Ahmad P.W. (given up) produced .12 bore gun Exh.P.3, its licence Exh.P.W.8/A alongwith the live cartridges which were taken into possession vide memo. Exh.P.K. The Sub-Inspector arrested the accused on 20-8-1971 on which date he also deposited the sealed parcels of recoveries with the Moharrir Head Constable. Parcel of the gun and the crime empty was sent to the Director, Forensic Science Laboratory and that of blood-stained earth and pieces of leather was sent to the office of the Chemical Examiner, Lahore. Positive reports were received from the Forensic Science Laboratory, the Chemical Examiner and 'the Serologist which are Exhs.P.L., P.M. and P.W.-10/A. Investigating Officer recorded the statements of P.Ws. under section 161, Cr.P.C. After completion of 'investigation, the accused was challaned. He pleaded not guilty to the charge and claimed to be tried.

5. In order to prove its case, prosecution examined medical evidence, ocular evidence, evidence of recoveries and motive. Medical evidence was furnished by Dr. Naseem Ahmad Qureshi P.W.1 who had conducted post-mortem examination of the deceased. He found three injuries on the person of the deceased which were stated to be ante-mortem. Injury No.1 consisted of two roughly oval wounds. It was found to have been caused with a fire-arm fired from close distance and the other two injuries with blunt weapons. In the opinion of the Doctor, deceased died due to extensive injury to the heart under injury No.1-a which was sufficient to cause death in the ordinary course of nature. He conceded in cross-examination that injuries Nos.1-a and 1-b could possibly be caused by two separate fires and that the deceased was fired at from a level higher than that of the deceased. Eye-witness account of the occurrence was given by the deceased's father Sadiq P.W.7, Muhammad Din P.W.5, maternal uncle of the deceased and Hassan Mochi P.W.6. These witnesses also deposed about the motive. Evidence in respect of recoveries was given by Muhammad Din P.W.5, Hassan P.W.6 and Muhammad Anwar P.W.8. Learned trial Judge did not accept the motive set up by the prosecution and found that in view of the admission made by Muhammad Din P.W.5 and Hassan P.W.6, it was clear that Shah Muhammad, father of the accused had taken over possession of the land several years before the occurrence through the process of the Court. It was also observed that if the accused had any motive, it should have been directed against Sardar Ali paternal uncle of the deceased with whom the father of the accused had a dispute over the land. As regards the ocular evidence, it was noted by the learned Additional Sessions Judge that P.W.7 was the father and P.W.5, the maternal uncle of the deceased and P.W.6 though not related to-the deceased was also interested in the prosecution in so far as he was 'Moeen' of Sadiq and Muhammad Din P.Ws. P.W.6 was also held to be inimical towards the accused as he while regulating the distribution of canal water to the landowners of the village had allegedly given the turn of the accused's father to Sadiq P.W. Learned trial Judge also observed that these witnesses have made improvements with a view to bring their evidence in conformity with the medical evidence. For all these reasons, learned trial Judge came to the conclusion that it was unsafe to rely upon the uncorroborated oral testimony of these witnesses. Recoveries were also not believed by the learned trial Judge and he gave numerous reasons therefor. It was, inter alia, observed that the recoveries were not proved by independent and disinterested evidence. It was also noted that Muhammad Anwar P.W. had falsely stated in examination-in-chief that he had attested the memo Exh.PA relating to the recovery of crime empty Exh.P2 since the memo in question admittedly did not bear his signature. Note was also taken of the fact that Ahmad P.W. who had produced the .gun P.3 before the police was not examined as a witness. Non-production of two live cartridges in the Court was also held to have rendered the recoveries doubtful. Opinion of the Fire-arm Expert regarding the crime empty having been fired from the gun P.3, too was, found to be of no avail to the prosecution as the gun was not recovered from the accused or at his instance. It was observed that the gun having been produced by its licensee who was not examined, it did not connect the accused with the offence. It was noted in this behalf that no evidence was produced to show as to how the gun P.3 belonging to Ahmad P.W. had come into the hands of the accused. It was further observed that even if it be assumed that the accused was carrying the gun P.3 at the time of occurrence, the opinion of the Expert carried no weight for the reason that the crime empty and the gun were simultaneously sent to the Fire-arm Expert and though recovered on 18-8-1971, they were deposited in the police station on 26-8-1971. According to the learned trial Judge, the possibility of the Investigating Officer having fabricated the empty could not be ruled out in the circumstances of the case. In this view of the matter, learned Additional Sessions Judge held that the recoveries did not furnish any corroboration to the prosecution case. Yet another circumstance taken into consideration by the learned trial Judge was that although several persons were present at the well near the place of occurrence and numerous persons had also gathered at the spot but none of them was examined. This circumstance rendered the prosecution story doubtful.

6. Taking the aforesaid view of the evidence, learned Additional Sessions Judge held that the prosecution case was not proved beyond reasonable doubt. He, therefore, acquitted the accused-respondent vide the impugned judgment.

7. I have heard the learned counsel for the petitioner and have also perused the impugned judgment and the relevant record of the case. Learned counsel has failed to point out any illegality in the conduct of trial nor has he been able to show that the view of the evidence taken by the learned trial Judge was perverse or unreasonable. In fact, learned Additional Sessions Judge, as discussed above, has given sound reasons for not believing the motive and the recoveries and not placing reliance on the uncorroborated testimony of the eye-witnesses, one of whom was the real father of the deceased the other his maternal uncle and the third was shown to be interested in the prosecution as also inimically disposed towards the accused respondent. It may be pertinently observed that even if it were possible for this Court to take a different view of the evidence that would not justify interference in revisional jurisdiction with the impugned order of acquittal. Law is very well settled that where the State has not thought it fit to challenge the acquittal by filing an appeal, the superior Courts would be slow to interfere in revision unless non-interference would involve endorsement of a patently unfair order or one which leads to miscarriage of justice. Refer 'Feroze Khan v. Capt. Ghulam Nabi Khan and others' PLD 1966 SC

424. Now in the present case, as already noted, it has not been argued that the learned trial Court has taken an unreasonable or perverse view of the evidence or that it has ignored some piece of evidence or has not applied correct principles in appraising the evidence. In the circumstances, I am of the view that the case does not call for any interference in revisional jurisdiction of this Court particularly when the impugned order of acquittal was passed more than thirteen years ago. Upshot of the above discussion is that this revision has no merit and the same is dismissed in limine. M.Y.H./M-538/L Petition dismissed.