BARKAT ALI vs MUHAMMAD ASIF and others

' CH. IJAZ AHMED, J.--- We intend to decide the captioned petitions by one consolidated judgment arising out of the same incident and same F.I.R. No,290 which was registered against private respondents at Police Station Doonga Boonga on 9-10-2002 under sections 302/34, 109, P.P.C. For causing the murder of Shaukat Ali. The learned Additional Sessions Judge, Bahawalnagar convicted and sentenced the respondents Nos.1 and 2 in Petition No,482-L of 2006 as under:--- {{MISSARANGED TEXT}} ' Muhammad Asif and Life imprisonment each. Shabbir alias Babar Sher under section 302(b)/34 Compensation Rs,50,000 each to the Rs, of deceased. In default of payment whereof to undergo six months' S.I. With benefit of section 382-B, Cr.P.C.

' It is pertinent to mention here that Muhammad Akhtar and Jan Muhammad /co-accused were acquitted. Petitioner has not filed any appeal against the aforesaid acquitted co-accused. .

2. Ghulam Nabi respondent No,1 in Criminal Petition No,483-L of 2006 was declared absconder and his case was separated from the aforesaid co-accused. Respondent Ghulam Nabi was arrested on 30-6-2004. The learned trial Court convicted and sentenced him under section 302(b)/34, P.P.C. For imprisonment for life. Payment of Rs,1,00,000 as compensation to the L.Rs, of the deceased. In case of default in payment of compensation, he was to suffer further R.I. For six months with benefit of section 382-B, Cr.P.C. Respondents Nos.1 and 2 in Petition No,482-L of 2006 filed Criminal Appeal No,210 of 2003 in the Lahore High Court, Bahawalpur Bench whereas respondent No,1 in Petition No,483-L of 2006 filed Criminal Appeal No,157 of 2005 in the Lahore High Court, Bahawalpur Bench.

The learned High Court had accepted the aforesaid appeals of all the respondents mentioned hereinabove vide two separate judgments vide judgments dated 9-5-2006. Hence, the present petitions.

3. The learned counsel for the petitioner submits that learned trial Court had acquitted and convicted the respondents after proper appreciation of evidence on record whereas the learned High Court had acquitted them without adverting to the reasoning of the trial Court. He further maintains that petitioner Barkat Ali P.W.12 and Dost Muhammad P.W.13 had furnished the ocular account of the occurrence. Their statements were quite consistent and the occurrence took place at 9 a.m. And this fact was not considered by the learned High Court in its true perspective. He further urges that occurrence had taken place at 9 a.m. In the village Abadi whereas the F.I.R. Was lodged by the petitioner at 945 a.m. And this fact was also not considered by the learned High Court in its true perspective coupled with the fact that the post-mortem examination was conducted on the said date of occurrence. The ocular account was also corroborated by the motive, medical and recovery evidence and there was no justification for P.W.12 and P.W.13 to implicate the respondents falsely in the serious and heinous offence of murder. He further maintains the fact of absconsion was also not considered by the learned High Court in its true perspective in the impugned judgment qua Ghulam Nabi respondent in petition No,483-L of 2006.

4. Learned Deputy Prosecutor-General appearing on behalf of the State resisted the petition.

5. We have considered the submissions made by the learned counsel for the parties and perused the record. The learned High Court had given cogent reasons after reappraisal of evidence that eye-witnesses P.W.12 and P.W.13 were not present at the time of occurrence as is evident from paragraphs 9 to 11 of the impugned judgment. The learned High Court had also examined the evidence on record qua the recoveries and came to the conclusion that the empties recovered from the spot did not tally with the weapon recovered at the instance of Muhammad Asif respondent whereas according to the report of Forensic Science Laboratory (F.S.L.) .12 bore empties recovered from the spot matched with the gun allegedly recovered at the instance of Shabbir respondent on 5-11-2002 yet no relevance can be placed on the report on the ground that according to P.Ws. Shabbir was appeared with a rifle and not with a gun and that the empties were received in the F.S.L. On 29-11-2002 i,e, after one month and 10 days of the occurrence and after 24 days of the recovery of the weapon. There is no explanation as to why the empties were not sent to' the laboratory soon after their recovery. Similarly, motive was not given importance which was not supported by any independent piece of evidence coupled with the fact that there is sufficient material available on record which shows that the deceased was involved in a number of criminal cases registered at various police stations including of those of dacoity and theft which means that the deceased had many enmities. So far as absconsion of Ghulam Nabi respondent has validly been rejected by the learned High Court as the abscondence of the respondent was not proved through any documentary or oral evidence and also for the reason that no question of abscondence was put to the respondent when his statement under section 342, Cr.P.C. Was recorded and the recovery was also rejected with cogent reasons in A view of non-availability of report of F.S.L. On record that any of the empties recovered from the place of occurrence matched with the weapon of offence. Of Ghulam Nabi. It is an admitted fact that eyewitnesses had stated that the deceased was hit by the respondents at about 30/35 feet whereas according to the medical report, there was burning and blackening as is evident from the statement of P.W.2, therefore, ocular account furnished by the two eye-witnesses is not in consonance with the medical evidence which clearly contradicts the statement of the eye-witnesses. It is a settled law that blackening appears on the dead B body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCM R 889, Bagh Ali's case 1983 SCM R 1292, Sain Dad's case 1972 SCM R 74 and Zardshad's case 1969 SCMR 644. It is also a settled law that mere abscondence does not prove guilty mind See Amanullah's case PLD 1976 SC 629. It is also a settled law that abscondence alone is not enough for conviction IE when sufficient evidence connecting the accused is not forthcoming. See Abdus Sattar's case 1974 PCr.LJ 208, Sardaran's case 1974 PCr.LJ Note 95 at p.60 and Hayat Bakhsh's case PLD 1981 SC 265. It is also a settled law that there are different parameters prescribed by this Court with regard to deciding the criminal petitions against conviction and F criminal petitions against acquittal. Impugned judgment with regard to acquittal should be either perverse, arbitrary or without any sustainable reason as law laid down by this Court in Ghulam Sakindar's case PLD 1985 SC 11.

6. In the light of the principle laid down in the aforesaid' judgment, we see no illegality committed by the learned High Court while acquitting the respondents with cogent reasons as mentioned above in the preceding paragraphs. Therefore, the petitions have no merit and the same are dismissed. .