1992 P Cr (PLP)

The petitioner has filed this petition, under section 417(2), Cr.P.C. for grant of Special Leave to Appeal from the order of acquittal passed by the learned Additional Sessions Judge, Chuhian, dated 14‑4‑1991 on a complaint case.

2. The brief facts relevant for the disposal of this petition are that Qaim Din complainant was a cultivator and owned land in Deh Saharanke Tehsil Chunian District Kasur. One Muhammad Shari son of Noor Din had also the land adjacent to the land of the complainant. On the night between 20th and 21st of June, 1988 the complainant after the close of his turn of water at 11‑00 p.m. went to the Dhari of said Muhammad Shari where Noor Ahmad alias Bagga son of Noor Muhammad and Bashir Ahmad residents of the said Deh were asleep. The complainant also lay down on a cot there. At about 2‑30 a.m. at night time, there was noise of `thief', `thief, on hearing the same they were awakened. The aforesaid Muhammad Shari holding Kulhari in his hand came out and ran towards the road which led to Bhooy Asal. The complainant alongwith Noor Ahmad and Bashir Ahmad also got up and came out, and they saw three trucks in front of the road which were parked in a line and the front lights were on. On reaching there Muhammad Shari shouted that he had come for help and recognized the thieves. On this Muhammad Suleman who was armed with gun fired at Muhammad Shari which missed. He again fired second shot which hit Muhammad Shari in front of his chest who dropped down and succumbed to the injuries shortly. The occurrence was witnessed by Noor Ahmad, Bashir Ahmad and Qaim Din complainant. Qaim Din complainant lodged the F.I.R. Exh.P.D. Feeling dis satisfied with the investigation of the police he lodged complaint Exh.P.H. which was also rejected by the learned Additional Sessions Judge, Chunian, hence this petitioner.

3. The learned counsel for the petitioner has vehemently contended that the learned trial Judge on erroneous application of mind and mis-appreciation of the evidence disbelieved the ocular version furnished by Qaim Din (P.WS) 3 and Noor Ahmad (P.W.6) in this case, hence the order of acquittal has resulted into miscarriage of justice. He further submitted that there is no enmity between P.Ws.5 and 6 and the respondents hence there was no justification for the learned trial Judge to acquit the accused while disbelieving the ocular version furnished by them. The motive has also been proved to the hilt but in spite of that the learned trial Judge by misreading the record gave benefit of doubt to the respondents, and acquitted them.

4. I have gone through the record with the able assistance of the learned counsel and I find the reasons advanced by the learned trial Judge while giving benefit of doubt to the respondents are well‑founded. The learned trial Judge rightly observed that Qaim Din (P.W.5) and Noor Ahmad (P.W.6) are the chance witnesses of the occurrence because the normal place of residence of these P.Ws. is in the village, which is at a considerable distance from the place where the occurrence took place and these witnesses have failed to furnish any plausible or rational reason for their presence at the scene of occurrence at the relevant time, hence the learned trial Judge rightly disbelieved them. If the 'evidence of these two witnesses is discarded, then nothing is left with the prosecution to substantiate the charge against the respondents as no recovery of gun was effected from the respondents which could match with the crime empties allegedly recovered from the place of occurrence. The respondents were also found innocent by the police during the investigation of the case. I find, the learned trial Judge has not given the benefit of doubt to the respondents by gross misreading of the record, hence there is no force in this petition which is dismissed accordingly. SA./Q‑2/L Petition dismissed.