1976 PLP 528 (SCMR)

MUHAMMAD GUL, J.‑This petition for special leave is from the judg ment of Division Bench of the Lahore High Court acquitting in appeal, the first and the second respondents herein, each of whom was convicted for am offence under section 302/34, P. P. C. and sentenced to death by the learned Sessions Judge. Lyallpur. The parties are related to each other, and respondents are father and son. The incident took place at digarwela on 24‑11‑1969, in a populated area of Chak No. 186/RS., Police Station Chak Jhumra. According to the prosecution case, the deceased. Matiur Rssul, a lad of 18, was shot at from a close range by Muhammad Iqbal, respondent No. 1 by a .12 bore gun, at the exhortation and in the presence of his father Bashir Ahmad, respondent No.

2. Mutiur Rasul was hit in the abdomen and fell on the ground. The incident was witnessed by the petitioner Rahim Bakhsh (P. W. 9). who is also the first informant. Muhammad Hussain P. W. 9) and Allah Bakhah (P. W. 10). They are all close relatives of the deceased. The two respondents tried to escape from the scene, but were chased by Muhammad Husain P. W. who overtook respondent No. 2, felled him on the ground and caught hold of him by his testicles. The latter, however, succeeded in extricating himself and ran away from the scene. The three eye‑witnesses then placed Munur Rasul on a cot and took him to the hospital, but be died on way to the hospital. The F. I. R. was lodged by Rahim Bakhsh, at 5‑30 p.m. at the police station at a distance of one mile. The motive for the incident is stated to be that Rahim Bakhish the first informant was married to Me. Rasul Bibi, sister of Bashir Ahmad respon dent No.

2. By her Rahim Bakhsh had a daughter, named, Ma. Zubeida, whom Mst. Rasul Bibi wanted to‑ give in marriage to heir brother's son, Muhammad Iqbal, the first respondent. Alit. Rasul Bibi died about twelve years ago, and the petitioner, contrary to the wishes of his deceased wife gave bin daughter Mgr. Zubaida in marriage; to Ishfaq, an elder brother of the deceased some three months before the incident. This was resented by the respondents and led to an estrangement between the parties. On the day of occurrence at about peshiwela. Muhammad Iqbal is also alleged to have coughed to tease the deceased who retaliated by indecent exposure of his genitals before respondent No.

1. The latter felt insulted and threatened reprisal. This incident, which was the immediate cause of the fatal assault on the deceased, was witnessed by Lal Din (P. W. 7). The learned Sessions Judge believed the prosecution evidence as to motive as also of the main incident ins given by the three eye‑witnesses despite their close relationship with the deceased, because according to him, their evidence was corroborated by medical evidence, which showed a gun‑shot wound 1 x in the abdomen of the deceased with its margin blackened and scorched. The fact that respondent No. 2 had an injury on the left side of scortum with slight swelling was also accepted as evidence of his participation in the incident. On appeal, the learned Judges of the High Court gave benefit of doubt to the respondents for the following three main reasons (i) The evidence with regard to motive including the incident involving indecent exposure by the deceased did not inspire confidence. (ii) The three eye‑witnesses to the occurrence are not only closely related to the deceased, but their evidence is contradicted by medical evidence. (iii) The incident took place in broad daylight on a main thoroughfare in a populated part of the village in front of a carpet factory where large number of personas had admittedly collected. However, no independent witness came forward to support the prosecution. As to the evidence of motive, the learned judges observed that if the pro secution evidence on the point is to be believed then the real motive was against Ishfaq to whom Mat. Zubaida was married or her father Rahim Bakhsh who gave her in marriage. As to the incident involving indecent exposure by the deceased to insult Muhammad Iqbal, the learned Judges thought that this was highly improbable because the real motive being against Iqbal, respondent No. 1, in the normal course of events, was unlike ly to have provoked younger brother who was barely a, lad of 17 or

18. The learned Judges were also influenced by the subsequent improvement In the prosecution case as a result of the statement of Lal Din (P. W. 7) in the trial Court, according to which when the deceased made indecent exposure to the respondent No. 1, they grappled with each other but were separated by the witness. This was described by the learned Judges a "padding" which they thought had become necessary, because otherwise the incident of mischievous coughing by respondent No. 1, was not likely to provoke the deceased to make indecent exposure, nor was otherwise serious enough to have culminated in a fatal assault in a ‑matter of hour or so. As to the eye‑witnesses, Rahim Baklhsh (P. W. 8) is the real brother of the deceased's grandfather; while Muhammad Husain (P. W. 9) is his real uncle, and Allah Bakhsh (P. W. 10) is his collateral. The fact that the prosecution was not able to produce independent witnesses from the locality naturally influenced the learned Judges to doubt the veracity of the eye‑witnesses. Another fact which weighed with the learned Judges was the incon sistency between the medical evince and the ocular account giver, by the else‑witnessed. According to the medical evidence the injury suffered by the deceased on the abdomen had blackened and scorched margins which were inverted and which indicated that the deceased was shot at from a distance trot exceeding about six inches on the other hand, the eye‑witnesses stated that the deceased was shot at by respondent No. 1 from a distance of 10, 12 feet. If the evidence of the eye‑witnesses were to be believed then there should have been no blackening or scorching of margin. Mr. Manzur Qadir learned counsel for the petitioner argued that the parties being closely related to able other and the incident having taken place its broad daylight on the main thoroughfare in a populated area of the village altogether excluded the Possibility of mistaken identity or false implication. The fact that respondent No. 2 had injuries on his person also confirms his participation and furnishes strong corroboration of the prosecution version. Learned counsel laid great emphasis on the fact that the two respondents have not been able to produce any evidence why the prosecution should have spared the real culprits and named the two respon dents in the F. I. R., if they were really not concerned in the crime. It was also emphasised that the F. I. R. was lodged without any delay and, therefore, must be accepted as a faithful account of the Incident. Lastly, it was also submitted that the mere fact that the three eye‑witnesses were closely related to the deceased is no ground for acquitting the two res pondents particularly when the learned trial Judge was "impressed" by their evidence. We have given our careful consideration to the above argument of the petitioner's learned counsel. There are certain features about the prosecution case which are not explained satisfactorily. As pointed out already it appears rather extraordinary that no witness other than the three related witnesses were attracted towards the spot on a lalkara raised by respondent No. 2, although the incident took place in broad daylight in a populated part of the village in front of carpet factory. It is important to point out that even the three related eye‑witnesses were attracted to the spot by the lalkara raised by respondent No.

2. At that time Rahim Bakhsh and Muhammad Hussain were at the dera of the former from where they hastened towards the scene of occurrence and were thus able to see ‑from a distance shot being fired. Similarly. Allah Rakha also heard the lalkara from a distance of 15/18 karams. And then it is admitted by these witnesses that a large number of other persons had also collected at the spot. Learned counsel tried to explain this jarring feature in the present case by suggesting that in serious incidents like this, disinterested witnesses keep away rather than to embroil themselves and incur the animosity of one of the parties. While this unfortunate tendency cannot altogether be discounted, this cannot be accepted on all cases as a valid explanation for the prosecution failure to produce the best evidence. It really depends upon the facts of each case. Having regard to the peculiar features of this case in our opinion, the learned Judges were justified to be ascetical about the veracity of the eye‑witnesses. Then it cannot be seriously disputed that the prosecution had tried to improve upon the case with regard to the incident of indecent exposure by the deceased in retaliation to the mis chievous coughing by respondent No.

1. Lai Din introduced the story of attack by respondent No. 1 on the deceased, although there was no mention of it in the F. I. R. to lend a colour of seriousness to the incident, which otherwise was trivial. We are not impressed by the argument either that because of the extreme improbability of sparing the actual culprit and falsely substituting two respondents in his place would necessarily bring home the offence to the respondent. If this argument were to be accepted then it would amount it to placing the burden on the respondents to prove their innocence and relieve the prosecution of its responsibility to prove the case against the respondent beyond reasonable doubt. As to the injury on the scrotum of respondent No. 2, the matter is not altogether free from doubt either. Respondent No. 2 explained this injury in the Session Court by stating that during the police investigation be was tortured suffered the injury on the scrotum, and that the Sub‑Inspector skin bad him examined by the doctor, and manipulated evidence to save his skin to show that the injury was suffered in the course of the incident. Accord ing to the Investigating Officer respondent No. 2 was arrested on the morning of 25‑11‑1969, and was immediately sent for medical examination. This is, however, belied by the fact that in the application for the remand of respondent No. 2 to police custody, it was stated that he was arrested on 24‑11‑1969, which tends to show that respondent No. 2 remained in police custody over‑night. When confronted with this the Investigating Officer admitted that this was a clerical error. However, that may be, this casts a cloud on the prosecution case. It is also highly improbable that if Muhammad Husain P. W. had felled respondent No. 2 and held him by his testicles, he should have been able to extricate himself and escape from the scene. It is common knowledge that a person held by his testicles reduced to a state of utter helplessness disabling him to gain liberty. Because of the above features in the prosecution case, it is impossible to contend that the conclusion reached by the learned Judges of the High Court was in any way perverse or fanciful. This whole criticism of learned counsel is directed against the appreciation of evidence in relation to the general circumstances of the incident. This is scarcely a ground for interference by this Court in its special jurisdiction. The petition is accordingly dismissed. Petition dismissed.