1984 PLP 501 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑Sherbaz petitioner seeks leave to appeal against the acquittal of Muhammad Nawaz, Amin Khan and Muhammad Riaz of the charge under section 302/34, P. P. C.

2. The facts leading to the petition are, briefly, that the 3 respondents named above were tried by the Sessions Judge, Jhelum, along with 5 others, inter alia, for offences under section 302/149, P. P. C. for having caused the murder of Muzammal Hussain aged 22 years, with guns and rifles. The incident in question had taken place at about 1 p. m. on 28th of August, 1981, in Dhok Sari Dakhli Village Dullah, District Jhelum. The matter was reported to Raja Banaras Khan, S. 1. (P. W. 12) S. H. O. Police station Nila, who was present in Village Dullah where the occurrence took place. The formal F.

1. R. was subsequently recorded on the basis of the statement made by Sherbaz petitioner.

3. The prosecution version as given in the F. I. R. is, briefly, that Mst. Gulfirin, a sister of Muhammad Riaz respondent‑accused was abducted by Muzammal Hussain (deceased) about 21/22 days prior to the occurrence. Muhammad Riaz as well as his parents and their partisans namely the 8 accused including the 3 respondents, demanded the return of the girl but the deceased refused to do so. A jirga of the respectable of the village was convened on 27‑8‑1981. On their intervention Muzammal Hussain promised to return the abductee. On the next day (28‑8‑1981), Muzammal Hussain accompanied by his father Sherbaz (P. W. 10), his cousin (aunt's son) Noor Khan (P. W. 11) and another relative Muhammad Riaz (not produced), started for Village Dadamber, to bring back the abducted girl from the said village. The accused, however, learnt of the proposed visit of the deceased to Village Dadamber and lay in ambush after having armed themselves with guns and rifles at a place near Village Dullah near the path leading to Village Dadamber. The deceased and his companions passed that place at about 1 p. m. On seeing them all the accused suddenly came out from their hiding place and declared that they would avenge the abduction of Mst. Gulfirin Muzammal Hussain (deceased) who was armed with 7 mm. rifle, ran to take up position behind a watercourse but he was fired at with a rifle by Amir Khan respon dent hitting him on his right thigh. Muhammad Nawaz respondent fired another shot with his rifle hitting the deceased on his left thigh. Amir Dad acquitted‑co‑accused then fired at the deceased with the '12 bore gun hitting him on the forehead. Muhammad Riaz respondent fired the fourth shot with his '12 bore gun hitting the deceased on his chest. On receiving these shots the deceased fell down. Sherbaz and his companions raised an alarm but they were extended threats by the accused and warned that if they dared to come near they would also be done to death. They then left the place of occurrence taking away the licensed rifle of the deceased alongwith its bandolier and licence. As already mentioned the matter was reported to Raja Banaras Khan, S.I./S H.O. (P. W. 12) who was present in Village Dullah. On recording the F. I. R. he proceeded to the spot and after preparing necessary documents sent the dead body for post‑mortem examination. He took into possession 3 empties of '12 bore cartridges and also secured 2 empties of 7 mm. rifle. All these were sealed into parcels. He also collected some blood‑stained earth from the spot. All the accused were arrested on 8‑9‑1961 about 16 days later '12 bore gun (Exh. P. 6) was recovered at the instance of Muhammad Riaz respondent and a rifle (Exh. P. 7) was recovered at the instance of Amir Khan respondent. The post‑mortem examination revealed four fire‑arm wounds of entry, and one fire‑arm wound of exit. The doctor also found numerous abrasions caused by ant‑bites on an area of 9' X 6J' on the neck and face of the deceased and on an area of 16' x 7' on the back, the outer side of the left chest and the front of the left aim and the shoulder of the deceased. The post‑mortem examination also revealed that the small and large intestines as well as the bladder of the deceased were completely empty. The post‑mortem report also revealed injury No. 2 on the left thigh of the deceased as having been caused by a fire shot from the backside. The empties recovered from the spot as well as the guns and the rifles recovered from the accused, were sent to the Ballistic Expert but they but not match with each other. They, therefore, could not be used to corroborate the ocular testimony of the eye‑witnesses.

4. The prosecution relied mainly on the ocular testimony of Sherbaz (P. W. 10) father of the deceased, and Noor Khan (P. W. 11) cousin of the deceased. They narrated the story as mentioned in the F. I. R. Their testimony was sought to be corroborated by the motive and the medical evidence. The accused denied their guilt and pleaded false implication due to enmity.

5. The learned trial Court believed the prosecution version and convicted the 3 respondents under section 302/34, P. P. C. and sentenced each of them to imprisonment for life and a fine of Rs. 2,000 or one year's R. I. in case of default of payment of fine. It, however, acquitted the 5 co. accused of the respondents. The respondents filed an appeal before the High Court against their conviction and sentences which was accepted vide the impugned judgment and all of them were acquitted. Hence the present petition.

6. We have gone through the impugned judgment and heard the learned counsel for the petitioner at length. We have also gone through the relevant portions of the evidence on the record placed on the file by the petitioner's counsel. We are, however, inclined to agree with the view taken by the learned High Court and do not consider it a fit case for grant of leave to appeal, for the reason that the testimony of the two eye‑witnesses is contradicted by the medical evidence. Sherbaz P. W. had stated in the F. I. R. that the deputed Noor Khan P. W. and Muhammad Riaz to guard the dead body of the deceased at the spot while he himself left to report the matter to the police, but the result of the post‑mortem examination showed that large areas of the body of the deceased had abrasions caused by ant‑bites, which clearly shows that the body had been lying unattended for considerable time. We are also inclined to agree with the view taken by the High Court that the fact that the intestines as well as the bladder of the deceased were found to be empty, indicates that the occurrence had taken place in the early hours of the morning after the deceased had eased himself. These facts are sufficient to show that none of the alleged eye‑witnesses was present at the spot and the occurrence was unwitnessed one.

7. The motive set up also appears to be doubtful because according to the statement (Exh. D. B.) of Mst. Gulfirin herself recorded under section 164, Cr. P. C., after her abduction she was taken to Karachi and had been brought back by one Afsar of the complainant party after the incident. We are, therefore, inclined to agree with the High Court that the story put forward by the prosecution that on the date and time of occurrence the deceased was going to Village Dadamber along with Sherbaz and Noor Khan etc. for bringing back Mst. Gulfirin, is not correct. It may also be mention ed that the testimony of the eye‑witnesses (who are close relatives of the deceased) is not such as can be relied upon without any independent corroboration, but no such corroboration is available on the record.

8. After considering the matter thoroughly we feel that the learned High Court was justified in acquitting the respondents. As stated earlier we do not consider it a fit case for grant of leave. The petition is consequently dismissed. S. Q. Petition dismissed