1988 8 C M R 505 (PLP)

M.S.H.QURAISHI, J.‑‑ This is the complainant's petition seeking leave to appeal from the judgment of acquittal passed by the Lahore High Court, dated 30‑10‑1983, on appeal by Shah Fakhar Zaman respondent /accused, who had been convicted under section 302, P.P.C. and sentenced to death plus fine and compensation by the trial Court. .

2. The case had proceeded against Shah Fakhar Zaman upon the allegation that he had committed the murder of Munir Akhtar deceased by firing at him at 6.30 p.m. on 2‑1‑1981 in front of the house of the deceased in village Danda Shah Bilawal, 21 kilometers from P.S.Lawa, District Attock. The occurrence had been seen by Muhammad Banaras, cousin, and Mst. Bakht Bhari, mother of the deceased, and two other, relatives of his, namely, Muhammad Khan and Fateh Muhammad who were not produced. According to the prosecution, Mst. Bakht Bhari on hearing a knock at the door of the Haveli got up to unchain the door. She heard report of gunshot in the Gali. The witnesses then heard the voice of the deceased to the effect that he had been fired at by the respondent. Another shot followed and on coming out, the witnesses saw the deceased lying covered with blood in front of the door of the Haveli and the respondent standing on the roof of his house with a shotgun in his hand and declaring that he had taken revenge for the insult. The motive was illicit intimacy between the deceased and the wife of the respondent's brother. The incident was reported by Muhammad Banaras petitioner at 9.30 p.m. the same night. The respondent who was arrested on 24‑1‑1981 led to the recovery of a shotgun with three empties but the recovery was not considered material in the absence of any crime empty having been found at the spot.

3. The prosecution relied on the medical evidence and the ocular testimony furnished by Mst. Bakht Bhari (P.W.8) and Muhammad Banaras (P.W.9). The medical evidence showed the presence of as many as 19 injuries, of which injuries Nos. 1 to 5 and 10 to 14 were wounds of entry caused by firearm. The petitioner's plea was of false implication due to enmity and of alibi. According to him, he had been under arrest by the police of Gularchi P.S. Sind, from 1‑1‑1981 to 11‑1‑1981, in support of which he produced documentary evidence including certified copies of remand orders Exs. D.F., D.G., D.H and D.I.

4. The High Court after a detailed examination of the evidence did not feel convinced of the veracity of the prosecution case. The Medical Officer had found blackening on the clothes of the deceased corresponding to the entry wounds. From this and from the presence of wad, he had opined that the shot had been fired from a close range. He had also found that the shots had travelled from downward to upward, thereby indicating that the deceased was, at the time of the firing, at a higher level than his assailant. As against this, the ocular witnesses, on coming out of the house immediately on hearing the shots, had seen the deceased lying on the ground and the respondent standing on the roof of his Kotha across the lane at a height of about 8 feet and at a distance of about 9 to 11 feet. Considering also the fact that it must have become dark at the time of the occurrence i.e., 6.30 p.m, on second of January, the High Court was not satisfied that the eye witnesses could have identified the assailant. The High Court also examined the plea of alibi set up by the respondent and held that the documents produced by him showed that he had remained in police custody from 1‑1‑1981 to 11‑1‑1981 under orders of remand obtained from a Magistrate. The High Court, therefore, came to the view that the prosecution had not succeeded in establishing its case against the respondents beyond every shadow of doubt.

5. The main attack on the judgment of the High Court was or the ground that the plea of alibi was false and manoeuvred in collusion with Gularchi police in order to cover up the crime. For this, reliance was placed on a letter dated 3rd April, 1981 addressed by the D.I.‑G. of Police, Hyderabad, to his counterpart at Rawalpindi, in which it was mentioned that S.I. Aziz Ahmad, the then S.H.O. Gularchi P.S., had been reverted to his substantive rank of A.S.I. with immediate effect and had also been charge‑sheeted for gross misconduct, corruption and inefficiency about the arrest of Shah Fakharuz Zaman. Unfortunately this letter, is of little help to the petitioner because, if at all, it only goes to support that the respondent had been arrested. What the police authorities had questioned was the legality of the arrest by the S.H.O. and not the factum of the arrest. Moreover, learned counsel for the petitioner admits that the disciplinary proceeding taken against the S.H.O., as mentioned in the letter, proved ineffective. Learned counsel then relied on the dying declaration of the deceased reflected in the statement of the ocular witnesses that they had, while still in the Haveli, heard the voice of the deceased to the effect that he had been shot at by the respondent. If the claim of the eye‑witnesses to have seen the occurrence, is not free from doubt, the evidence of dying declaration coming from them will not deserve any better treatment. It is to be noted in this connection that the Medical Officer had testified that "It is possible that due to injury on the brain the deceased may not have been capable to talk after the receipt of said injuries". Since the deceased had sustained numerous injuries, it can be argued that he had been able to name the assailant before receiving the brain injury but considering the facts and circumstances of the case, it I would be highly unsafe to base a conviction on the strength of such dying declaration.

6. We are thus satisfied that no proper case has been made out for interference with the judgment of acquittal of the High Court. The petition is, therefore, dismissed. M . Z . M . Petition dismissed.