1989 PLP 1172 (SCMR)

USMAN ALI SHAH, J.‑‑Ghulam Rasul petitioner/complainant has brought this petition for leave to appeal from the impugned judgment of the Lahore High Court, Lahore, whereby the respondents Wazir Khan and Zafarullah were acquitted of the charges under section 302/34, P.P.C. for committing the murder of Ahmad father of the complainant at 4.20 p.m. on 5‑1‑1981 in village Thatthi, P.S. Daud Khel, District Mianwali. The respondents were tried by the Sessions Judge Mianwali, who vide his judgment dated 23‑10‑1982 convicted them under section 302/34, P.P.C. and sentenced Wazir Khan respondent No‑1 to death and Zafarullah respondent No.2 to life imprisonment. Fine of Rs.5,000 was, however, imposed on each of them with direction that on reali7‑ation the same would be paid to the heirs of the deceased or in default to suffer each further R.I. for 2 years. No doubt that it was an unnoticed crime and the conviction was based by the learned trial Judge on the mere reason that it was a daylight occurrence and the accused were previously known to the P.Ws. and there was no chance of misidentification of the accused by the prosecution witnesses. The learned High Court found the evidence in this case against the respondents highly doubtful and entirely conflicting with the ocular account, thus giving them the benefit of doubt and acquitted from the charges of murder. The learned counsel for the petitioner vehemently argued his case before us to establish his stand point but he failed to convince us in proving the prosecution case against the respondents beyond any shadow of doubt, as there are so many contradictions in the F.I.R., ocular account and the medical evidence. The eye‑witness account was furnished by only two witnesses, namely, Ghulam Rasul complainant who is the son of the deceased and Said Muhammad who is a relative of the deceased. The recoveries of the crime weapons have not been proved. The F.I.R. reveals that each of the accused had fired one shot each and the deceased had died as a result of two fire shots, whereas the medical evidence shows that there were five fire‑arm injuries on the dead body of the deceased, out of which one is on the back of the deceased, which is definitely the result of one shot. The distance between injuries Nos.3 and 4 on the one side of the shoulder and No.5 on the other side of the thigh is such that it cannot be the result of one shot, therefore, we are left with no doubt that the deceased had received more than two shots. All these material contradictions in our view are only beneficial to the accused and have led the prosecution case towards dark and doubts. In order to satisfy ourselves, we have also examined the evidence in this case and find that other pieces of evidence are also such as would not have warranted the conviction of the respondents. In view of the matter, we find no substance in this petition, which accordingly, is dismissed. M.B.A./G‑173/S Petition dismissed.