1983 PLP 800 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑The appellant in this appeal by special leave, ‑seeks to challenge the order of acquittal of the respondents recorded by a Division Bench of the Lahore High Court as per the impugned judgment dated 11‑7‑1979, on an appeal filed by the respondents who were convicted by the trial Court under section 302/149, P. P. C. and also under section 148, P. P. C. Respondent Muhammad Amir had been sentenced to death by the trial Court whereas the rest of the respondents had been sentenced to life imprisonment under the first count and all the respondents bad been sentenced to fine under the second count.

2. The parties are interrelated through marriages and were residents of village Bilomar within the jurisdiction of and at a distance of 18 miles from the Police Station, Talagang District Campbelipur. The deceased Allahyar was married to Mst. Allah Rakhi (P. W.) sister of respondent Karam Elahi. About four years prior to the occurrence Mst. Ghulam Sakina, daughter of the deceased, was married to respondent Muhammad Amir but soon after the marriage she was estranged from him and continued since then to live in het parents' house. The deceased was in service in the armed forces and had come back home about a month prior to the occurrence as a result of his retirement from service.

3. The occurrence took place on 28‑6‑1974 at Duphairwaila in the house of the deceased. According to the prosecution a day prior to the occurrence, P. W. Karam Elahi and one Fateh Khan were sent to the house of the deceased by respondent Muhammad Amir, with the object of bringing back his wife, but the deceased is said to have declined to accede to the request. On the fateful day, the respondents having been armed with fire‑arms launched an attack on the house of the deceased with a view to forcibly taking away Mst. Ghulam Sakina. It was stated that respondents Karam Elahi and Mian Khan were armed with pistols, whereas respondents Muhammad Amir and Ghulam Abbas were carrying rifles and respondent Ghulam Akbar had a '12 bore gun. The culprits were raising Lalkaras and firing guns. The deceased was present in his house alongwith his wife and children and apprehending danger from the culprits, he chained the door of his Haveli from inside. The respondents are then said to have climbed on to the roofs of the neighbouring houses and started firing there from. The deceased also went up to the roof of his own Haveli and taking cover behind the wall started firing in the air with his pistol, apparently in order to scare away the assaulting respondents. A shot fired by respondent Muhammad Amir hit the deceased as a result of which he collapsed and died. Appellant Hussain Bakhsh then reported the matter to the police. During the investiga tion a 12 bore licensed gun is said to have been recovered from respondent Muhammad Amir and also two '12 bore empties from the scene of occurrence, but since the fire‑arm expert gave a negative opinion, the prosecution did not rely on the evidence of recovery as it did not connect the respondents with the crime.

4. The medical officer Dr. Muhammad Usman Qureshi found two fire arm wounds of entry one on the upper part of the right upper arm with a corresponding wound of exit and the other on the forehead of the deceased. The margins and the area around the wounds were found to have been burnt and a large pellet was found in the brain matter.

5. The respondents pleaded not guilty to the charge and asserted that they have been falsely implicated due to enmity.

6. At the trial the prosecution sought to prove their case entirely upon ocular testimony, of P. Ws. Mst. Allah Rakhi, Hussain Bakhsh and Imam Bakhsh. Since according to the prosecution case Mst. Allah Rakhi had taken refuge alongwith her children in a room of the house .whereas the occurrence took place on the roof, the trial Court placed reliance on the testimony of P. Ws. Hussain Bakhsh and Imam Bakhsh only and accepted their evidence for basing the conviction of the accused persons.

7. The learned Judges of the High Court, however, disagreed with the evaluation of the evidence by the trial Court and held that the evidence of these two alleged eye‑witnesses "does not inspire confidence for the reason that it suffers from contradictions, inconsistencies, improvements and improbabilities". The learned Judges also pointed out the material discre pancies in the version given by the two witnesses of the occurrence. As regards improvements made in the evidence to the original version of the incident described in the First Information Report the learned Judges made the following observations "According to the first version, as given in the F. I. R., there was no allegation that any one of the appellants except Muhammad Amir hit the deceased muchless that the shot fired by Ghulam Abbas appellant hit him. It was also not mentioned in the F. I. R. that Mst. Allah Rakhi (P, W. 8) alongwith her children had taken refuge inside the room and the appellants also fired at her door and that on the asking of the witnesses, she came out after the appellants had left. If that was, in fact, true then it is not conceivable that Hussain Bakhsh (P. W.) would have omitted to mentioned these important facts. These are all deliberate improvements. Again, Hussain Bakhsh (P. W. 9) admitted that none of the appellants entered the house and attempted to forcibly take away Mst. Ghulam Sakina although in the F. I. R. it was alleged that the appellants had launched the attack to take her away forcibly." Also the learned Judges found the oral account of these witnesses in direct conflict with the medical evidence and lastly that the said two witnesses were chance witnesses and their presence at the scene of occurrence was doubtful.

8. It was contended on behalf of the appellant that the reasons given by the learned Judges of the High Court to hold that the evidence of P. Ws. Hussain Bakhsh and Imam Bak4sh cannot sustain the conviction of the respondents, are not tenable, and therefore, they should have been believed. We have also been taken through the evidence on record by the learned counsel appearing for the appellant. We are, however, unable to accept the contention of the learned counsel. We are satisfied with the soundness of the appreciation of the evidence by the High Court and agree with it entirely as pointed out by the learned counsel appearing for the respondents. The oral at account deposed to by the alleged eye‑witnesses does not fit in with the medical evidence and is, therefore,‑ belied by circumstances. According to Muhammad Nawaz (P. W. 5) Draftsman Talagane, who prepared the site plan of the scene of occurrence, in accordance with the assistance rendered by the P. Ws. Hussain Bakhsh and Imam Bakhsh the distance between the point at which the deceased was stated to have been killed and the point from where respondent Muhammad Amir is said to have fired the fatal shot was 94 feet. On the other hand the medical evidence clearly shows the presence of burning and charring of the wounds, which clearly suggests that the shots were fired at very close range. Further the medical evidence clearly establishes that the injuries on the person of the deceased were caused with the shots fired from the shot‑gun, as a pellet was also taken out from injury No. 3 in the head. P. W. Hussain Bakhsh has, however, stated that P. W. Ghulam Abbas fired a shot with his rifle which bit the deceased near the shoulder: The motive also does not appear to be convincing, as after successfully eliminating resistance from the deceased, leaving his wife and children helpless and at the mercy of the assailants, they did not further attempt to consummate the crime by abducting Mst. 'Ghulam Sakina, which was, according to the prosecution the whole object of the assault. Further Mst. Ghulam Sakina was living with her mother .in her father's house ever since he remained in India as POW for three years, but as admitted by Mst. Allah Rakhi, no attempt was made by the accused to forcibly take her away to the house of her husband respondent Muhammad Amir.

9. In view of the aforesaid we agree with the conclusion arrived at by the learned Judges of the High Court that the ocular testimony in this case was not worthy of reliance and to sustain conviction in a capital charge. There is, therefore, no merit in this appeal which is accordingly dismissed. The bail bonds furnished by the respondents shall stand discharge. Appeal dismissed.