P L D 1992 Supreme Court 570 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ .

This Criminal Appeal through leave of the Court is directed against the acquittal by the High Court of respondents Nos.l and 2 in a case of murder. Leave to appeal was granted after noting the following facts and circumstances: That on 14-9-1987 P:W.16 Muhammad Tahseen informed the police station Wah Cantt. that his brother Muhammad Naeem deceased did not tun up during the night. The deceased was lying in a Jawar field in unconscious condition. The complainant expressed his belief that his brother was murdere by the two accused. The accused were treated under section 302/34, P.P.C. fo causing the death of Muhammad Naeem and sentenced them to death and fin by the learned Judges Punjab Special Court. The appeal against the said judgment was accepted by the High Court and the accused-respondents were acquitted of the charge. The appellant has challenged the order of acquittal of respondent Nos.l and

2. The learned counsel for the appellant submitted that "the High Court has misread the evidence and discarded the material evidence on record The appraisal of the evidence by the trial Court and that of the High Court in inconsistent with each other on the question of credibility of the-witnesses. The High Court has also ignored the `last seen' evidence furnished by the three prosecution witnesses on erroneous grounds. The High Court has also excluded the ocular evidence of the sole eye-witness on wrong principle. The High Court in para 10 of the judgment referred to the statement of the eyewitness, P.W. Nisar Shah and observed that he made contradictory statements. Particular reference was made to Exh.D.A. (in fact this document is Exh.DD). The alleged statement of Nisar Shah made in Exh.DD was not proved in accordance with the provisions of Evidence Act. No attention of P.W. Nisar Shah was drawn to the alleged statement. The High Court heavily relied upon such contradictions while discarding the statement of P.W. Nisar Shah from consideration". In this view of the matter, the contentions raised by the learned counsel for the appellant needed examination. The learned counsel for the appellant has relied on the ocular evidence furnished in the testimony of sole eye-witness named Nisar Shah together with the last seen evidence contained in the testimony of other prosecution witnesses. We. have gone through the relevant parts of the evidence. .Nisar Shah, after stating the details of the background gave the following details about the occurrence: "After having given revolver to Muhammad Saleem accused, Idrees accused twisted the right arm of Muhammad Naeem deceased. Muhammad Saleem then fired two successive shots at Muhammad Naeem hitting on his head and face. Muhammad Naeem fell down on ground. I attempted to decampe but Muhammad Idrees accused caught me - - - -. The description of the actual attack and the assault on the deceased and the violence to his body through injuries is diametrically opposed to the description given by the first doctor who initially examined the injuries. Mr. Zafar Iqbal of the P.O.F. Hospital gave the following details: . "(1)???? Clinicafly fractured right forearm bone inflicted by blunt weapon. Local bruising and haematoma present. (2)??????? Bruises and redness over chest and neck regions caused by violence. Probably tried to strangulate. (3)??????? Bruises over abdomen caused by blunt weapon. (4)??????? Small lacerated wound left side of chin half inch size blunt weapon. (5)??????? Small lacerated wound back of skull 1" scalp deep caused by blunt weapon. All the injuries are under observation. Patient is not tit for statement:' . He had also an occasion to re-state the nature of injuries. Injury No.l was described as haematoma and present on the right forearm. Injuries Nos.2 and 3 were shown to be bruises and redness over chest; neck and abdomen. All caused by blunt weapon. Under cross-examination he clearly admitted that these injuries could have been caused by a sota or a rod. The eye-witness account thus stood negated. Not only this a previous statement of the eyewitness recorded under section 161, _Cr.P.C. also indicated, as if to say the least, he was not sure about the weapon of offence. For all these- reasons the High Court was fully justified not to rely on Nisar Shah P.W. The emphasis by the learned counsel on last seen evidence in the circumstances of the present case also is of no avail to the complainant side at the stage when this Court is examining the evidence in an appeal against acquittal. Nisar Shah having been examined, by the prosecution to explain the end-product of the last seen element in the case, it would not be proper ,in an appeal against acquittal to permit the prosecution not to stick to the version given by Nisar Shah. It is in such like situations that under the higher principles of the Criminal Jurisprudence the benefit of doubt goes to the accused for all the missing links. Accordingly, we have not been able to find this case satisfying the conditions laid down in Ghulam Sikandar v. Mamraz Khan PLD 1985 SC

11. This appeal thus fails and is dismissed. M.BA./M-1645/S ???????? Appeal dismissed.