2005 PLP 1679 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Muhammad Zaman complainant has filed this appeal after leave of Court against the judgment dated 2-7-1995 of a learned Division Bench of Lahore High Court whereby respondents Muhammad Afzal, Muhammad Akhtar son of Lal Khan, Muhammad Akhtar and Muhammad Iqbal sons of Shah Muhammad and Lal Khan were acquitted of the charge of murder of Mumtaz Hussain, the real brother of the complainant.

2. The occurrence had taken place on 25-8-1989 at 4-30 p.m. at the Dera of Muhammad Zaman, the complainant located 2/3 furlongs East of complainant's village Dewna. Muhammad Zaman, according to F.I.R. along with Farman Ali and Walayat Khan was present in his Dera located on G.T. Road. His brother Mumtaz Hussain, a Councillor wasalso sitting on a cot in the adjoining donkey pump. At about 4-30 p.m. a red Suzuki came to the spot and stopped on the road in front of Mumtaz Hussain. Muhammad Akhtar son of Shah Muhammad, Muhammad Afzaal, another Muhammad Akhtar son of Lal Khan, Muhammad Arif, Muhammad Azam and Shehzad; all armed with kalashnikovs and .7 mm rifles, alighted from the Suzuki. They raised alarm that Mumtaz Hussain would not be spared. Simultaneous with the Lalkara, Muhammad Akhtar, Chairman opened a burst fire at Mumtaz Hussain which hit the victim at his right arm. The second burst fire opened by Afzaal hit the deceased at chest and abdomen. Mumtaz Hussain fell to the ground whereafter Muhammad Akhtar, Muhammad Arif, Muhammad Azam and Shehzad opened indiscriminate firing at him with which the victim's body was sieved. He died on the spot.

3. The complainant and his companions raised hue and cry that attracted Walayat Khan son of Mian Khan and Rehmat Khan son of Pola Khan who also saw the occurrence. They tried to chase the assailants but they decamped towards the Dera of Muhammad Akhtar, Chairman. The motive for the occurrence is stated to the effect that in 1975 a nephew of Muhammad Akhtar, Chairman was murdered for which the deceased Mumtaz Hussain was charged and sentenced to death by the Court of Session but was subsequently, acquitted by the High Court. Muhammad Akhtar, Chairman was seriously aggrieved thereof. It is further stated that Muhammad Akhtar, Chairman, prior to the present occurrence had twice committed murderous assault on Mumtaz Hussain and Muhammad Ashraf, Member, District Council in which they had fortunately escaped unhurt. The murder was said to have been motivated by Muhammad Iqbal son of Shah Muhammad and Lal Khan son of Shah Muhammad. The complainant, leaving the dead body under the supervision of Walayat and Farman Ali, left for lodging the report but coincidently came across Abdul Rashid, A.S.-I., Police Station Gujrat at Dewna Mandi before whom the above report was lodged that subsequently got incorporated into F.I.R. No.440 at Police Station Saddar Gujrat.

4. The prosecution mainly relied upon the ocular testimony furnished by Muhammad Zaman complainant, Walayat Khan son of Allah Ditta and Walayat son of Mian Khan who were examined as P.W.7, P.W.8 and P.W.9, respectively. The learned High Court did not A believe in either of them, for the reason, that Muhammad Zaman's presence was highly improbable and that the two Walayats were certainly the chance witnesses whose testimony required strong corroboration which was not available at all.

5. Muhammad Zaman, complainant is the real brother of the deceased. He admitted in his cross-examination that in the murder case of the nephew of Muhammad Akhtar, Chairman, he equally was an accused along with Mumtaz Hussain deceased. It does not appeal to reason that the assailants who had launched such a cruel attack on the deceased and who had admittedly fired more or less hundred shots during the occurrence, would kill Mumtaz Hussain and would spare Muhammad Zaman so that he may appear against them as a witness. This conduct, if at all, appeared to be highly improbable. Mumtaz Hussain deceased and Muhammad Zaman were both accused in the former occurrence of 1975 and hence the sparing of Muhammad Zaman by the assailants is next to impossible. The presence of Muhammad Zaman is, therefore, rightly considered to be doubtful by the High Court.

6. Coming to the remaining two eye-witnesses (P.W.8 and P.W.9), their presence on the spot is not one of ordinary routine. They both have failed to prove the purpose of their presence in the Dera of Muhammad Zaman and thus, were rightly considered to be the chance witnesses. Their testimony, and for that matter, the testimony of all the three B required strong corroboration. Whether any such corroboration is available, is a matter of record which is 'totally negative. All the witnesses have stated that the assailants had fired hundred of rounds on the spot. Not even a single empty was recovered from the spot which completely was within the domain of the complainant party and to which the police had reached within minutes. It can be strongly inferred from the distance of 50/60 yards at which the complainant met the police and lodged the report. The non-recovery of empties is indicative of two glaring facts. Firstly, that the eye-witnesses were not present on the spot and secondly that the spot indicated by the complainant was not the place of occurrence.

7. Another discrepancy has cropped up due to blackening on the injuries of the victim. According to prosecution case as disclosed by the so-called eye-witnesses and by the site plan, the distance between the assailants and the victim was 3 Karams converted to about 17/18 feet. All the assailants are armed with rifled guns and thus, the coming of blackening on the wounds appears to be impossible. It seems that whosoever was or were the assailants, they had drawn so close to the victim that the firing caused blackening. This is indicative of the non-presence of the eye-witnesses as well as the fact that the occurrence had not taken place in the manner described by the so-called witnesses.

8. It was in this background that leave to appeal was granted against Muhammad Afzal and Muhammad Akhtar respondents and not against the remaining respondents.

9. The only fact that remains to be considered, is the abscondence of some of the accused. In the absence of any other evidence as discussed earlier, the abscondence loses its significance.

10. In the circumstances, we believe that the learned High Court had rightly extended the benefit of doubt to the accused and had rightly acquitted them of the charge. The impugned judgment is upheld and the instant appeal against acquittal is hereby dismissed. H.B.T./M-134/S Appeal dismissed.