2005 PLP 1128 (SCMR)

Nemo for Respondents. Date of hearing; 11th June, 2003. KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑--This petition is directed against a judgment, dated 4‑3‑2002 passed by the Lahore High Court in Crl. Appeal No. 102 of 1996 whereby Muhammad Amir, and Alam Khan respondents who had been convicted by the learned trial Judge under sections 302 and 324, P.P.C. had been acquitted of the said charges.

2. The Honourable High Court acquitted the two respondents on the ground that it appeared from the record that the allegedly injured P.W. namely, Muhammad Ashraf and the other eye‑witness, namely, Fateh, Sher had not witnessed the occurrence; that the report of the Forensic Science Laboratory was of no assistance to the prosecution .as the crime‑empties allegedly recovered from the spot had been sent to the said laboratory well after the arrest of Amir respondent; that the presence of Shah Nawaz, P.W. at the place of occurrence at the relevant time was not believable; that the injury allegedly received by Ashraf P.W. appeared to be self‑suffered or at least caused by a friendly hand; that the F.I.R. had been recorded after due deliberation." end preliminary investigation; that the possession of the land in dispute was with the respondents and that in the circumstances it could not be said that the prosecution had successfully proved its case against the two respondents.

3. We have heard the learned counsel for the petitioner at some length and have also examined the available record with his assistance.

4. The occurrence in question had allegedly taken place on 27‑7‑1994 at about 8‑00 a.m. Muhammad Ashraf P.W. had allegedly received a fire‑arm injury on his thigh and was allegedly bleeding but despite this he was not taken to any doctor for any medical assistance for about nine hours as Dr. Saeed (P.W.4) had allegedly examined this injured P.W. on the day of occurrence at 5‑00 p.m. It is not believable that if Ashraf P.W. had received a fire‑arm injury on his person then he would not rush for medical assistance and would wait for nine hours to reach a doctor. It is also on record that the doctor had not noted any corresponding hole on his clothes nor any blood‑stained clothes had been produced by the witness nor taken into possession by the I.O. For these reasons and others the learned High Court was justified in concluding that the receipt of fire‑arm injury by Ashraf P.W. was a doubtful affair. The other eye‑witness, namely, Fateh Sher (P. W.10) claimed to be a resident of the place of occurrence but then admitted in cross‑examination that during the days of occurrence, he used to live in Chak No. 8‑Rakh Haiderabad.

5. Similarly was the position of Shah Nawaz (P.W.12). He was the one with whom the accused party was allegedly in litigation about the land in question and thus he was the one against whom the respondents had the alleged motive. He claimed to have been present at the place of occurrence but the respondents never attempted to cause any harm to him. Such an alleged conduct of the respondents does not inspire confidence and it was; therefore, rightly held by the High Court that the presence of Shah Nawaz P.W. at the place of occurrence at the relevant time was also open to serious doubts.

6. Muhammad Amir respondent had been arrested on 29‑7‑1994. The crime‑empty allegedly recovered from the spot had been sent to the Forensic Science Laboratory on 1‑8‑1994. In the circumstances the conclusion reached by the High Court about the doubtful nature of this piece of evidence could not be said to be arbitrary. Likewise the finding of the Honourable High Court that the F.I.R. had been recorded at the spot after preliminary investigation on account of the delayed post mortem examination of the dead body; the delayed medico‑legal examination of Ashraf P.W. and the admission of Shah Nawaz P.W., was also a reasonably justifiable finding. Noticing the material available on record, the High Court was also of the opinion and rightly so that it was the accused. party who were in possession of the land in dispute.

7. Having thus, examined all aspects of the matter, we find that no exception could be taken to the acquittal of the private respondents as recorded by the Honourable High Court. This petition is, therefore, dismissed. Leave refused. N.H.Q./S‑312/S Leave refused.