1990SCMR1269 (PLP)

RUSTAM S.SIDHWA, J.‑‑‑This is a petition by Abdur Rashid petitioner seeking leave to appeal against the judgment of a learned Single Judge of the Lahore High Court dated 23‑1‑1989 acquitting Muhammad Yousaf respondent of the charge under section 302 P.P.C.

2. The brief facts of the case are that Muhammad Rafiq, deceased, was a blacksmith. At about 2.00 p.m. on 6‑6‑1987, he and his brother Abdur Rashid P.W. 2, the first informant in the case, were present at their shop in Chak No.20/GB, when Muhammad Yousaf accused went there carrying a carbine. The deceased objected to his sitting at his shop with a carbine. The accused told him that he was nobody to tell him to leave his shop and abused the deceased. The abuses were returned and the accused fired at the deceased, hitting him in his right eye. The accused then ran away. Muhammad Ramzan P.W. 3 and Taj Din, who had their shops adjoining that of the deceased, reached the deceased's shop on hearing the fire‑shot. The deceased was carried to the hospital in Nankana Sahib, but he expired on the way. Abdur Rashid P.W. 2 then proceeded to the police station where he met Nazir Ahmad S.I. P.W. 9 outside the gate of the police station, who recorded his statement Ex. PC at 4‑30 p.m.

3. At the trial, Muhammad Yousaf accused took up the defence that on the day of occurrence a cartridge had got stuck in his carbine, which he had taken to Mistri Muhammad Rafiq for clearing the cartridge, as he used to do this job even on previous occasions and that when Mistri Muhammad Rafiq deceased started extracting the cartridge from the carbine, it accidentally went off from his own hands and hit him. He further stated that there was no one else present there besides himself and Mistri Muhammad Rafiq deceased.

4. The learned trial Judge held that though Abdur Rashid was the brother of the deceased, but as he had no enmity with the accused and his evidence otherwise inspired confidence, his testimony could be accepted with safety. As regards the investigating officer, who had recorded the F.I.R. at the police station after he had gone to the spot and made preliminary investigation, the learned Judge held that the prosecution could not be made to suffer for the irregularity committed by the investigating officer. The learned trial Judge also accepted the Waj Takkar evidence of Muhammad Ramzan P.W.

3. Accepting the ocular account given by Abdur Rashid P.W. 2, the Waj Takkar account given by Muhammad Ramzan P.W. 3, the medical testimony and the other attending circumstances, the trial Judge found Muhammad Yousaf guilty under section 302, P.P.C. and sentenced him to life imprisonment with fine.

5. The learned Appellate Judge held that the investigating officer had recorded the F.I.R. after great delay, after he had first gone to the spot and made preliminary inquiries. He also found that Abdur Rashid P.W. 2 had not mentioned any previous enmity in the F.I.R., but had tried to introduce one at the trial and had also tried to justify the same by stating that he had mentioned about it in the F.I.R. The learned Judge also did not rely upon the extra‑judicial confession purporting to have been made by the accused as deposed to by Muhammad Ramzan P.W.

3. According to this witness, the accused was running out of the deceased's shop when he admitted having fired at the deceased, which statement was somewhat hard to believe. In any case, the F.I.R. did not contain any reference to the extra‑judicial confession made by the accused before Muhammad Ramzan P.W.

3. Taking all these circumstances into consideration, the learned appellate Judge held that the prosecution story appeared to be fabricated and that the occurrence had not taken place in the manner stated by Abdur Rashid P.W. 2 and Muhammad Ramzan P.W. 3 and that there was a reasonable possibility of the occurrence having taken place in the manner stated by the accused. He, therefore, accepted the appeal and set aside the conviction and sentence of Muhammad Yousaf accused.

6. Sh.Shaukat Ali, Senior Advocate, appears on behalf of Abdur Rashid petitioner. On behalf of the petitioner, it is submitted that both Abdur Rashid P.W. 2 and Muhammad Ramzan P.W. 3 are independent witnesses, as they have no enmity or animosity with the acquitted respondent, that the occurrence was a day time occurrence and that the case involved only one accused and no allegation of substitution is involved.

7. Mr.M.Nawaz Abbasi, AA.‑G., Punjab, alongwith Rao M.Yousaf A.O.R., appears on behalf of the State. He supports the learned counsel for the petitioner.

8. We have given our anxious consideration to the arguments of the learned counsel for the petitioner and the State and have also perused the record. The occurrence is admitted by the acquitted respondent, though in different circumstances. Placing the case of the petitioner and the respondent in juxta position, it would appear from the evidence on the record and the surrounding circumstances that the prosecution case does not stand established to the hilt beyond all reasonable doubt and that the version of the respondent seems to be plausible. The strong factors that go in favour of this view are that certain attempts were made to bolster up the prosecution case, such as the introduction of a motive at the trial and the extra‑judicial confession made by the respondent, both of which facts were not recorded in the F.I.R. Ex P.C. and the fact that the investigating officer had not recorded the F.I.R. at the police station, but had come to the spot and after preliminary inquiries had gone back to the police station where he had recorded the F.I.R. On a sensitive matter, such as the present, where the High Court after placing in juxta‑position the case of the prosecution and the defence, has to form an opinion as to which of the two versions is correct and has so formed an opinion, one way or the other, unless we were to find that the appraisal made was perverse or in flagrant violation of any principle of law laid down by this Court, we would not interfere in the matter. No such violation appears in the instant case and we would, therefore, not like to re‑appraise the matter. There being no merit in this petition, leave is refused. N.H.Q./A‑762/S Leave refused.