FARMAN AHMED vs MUHAMMAD INAYAT and others

' CH. IJAZ AHMED, J.--- Petitioner has sought leave to appeal against the judgment, dated 18-5- 2006 of the Lahore High Court, Lahore wherein Criminal Appeal No,1938 of 2000 filed by the respondent No,1 against his conviction was accepted and consequently, respondent No,1 was acquitted.

2. Detailed facts have already been mentioned in the impugned judgment in para.2, however, necessary facts out of which the present petition arises are that respondent No,1 along with 7 others are involved in a case F.I.R. No,201 which was registered at Police Station Saddar Kamoki, District Gujranwala under sections 302, 148, 149, P.P.C. For the murder of Nazir Ahmed deceased. The learned Additional Sessions Judge, Gujranwala convicted the respondent No,1 under section 302, P.P.C. And sentenced him to death along with fine of Rs,50,000. The fine if recovered was ordered to be paid to the L.Rs, of the deceased vide judgment, dated 14-12-2000 whereas the other six co- accused were acquitted except Sabir co-accused who has died before the trial commenced.

Respondent No,1 being aggrieved filed Criminal Appeal No,1938 of 2000 in the Lahore High Court whereas the trial Court had sent a murder reference for confirmation of 'death of the respondent No,

1. The learned High Court as mentioned above accepted the appeal of the respondent No,1 and murder reference was answered in negative. Respondent was acquitted. Hence, the present petition.

3. The learned counsel for the petitioner submits that prosecution has proved the case against the respondent beyond any shadow of doubt consisting of following pieces of evidence:

(i) Medical evidence.

(ii) Ocular evidence.

(iii) Recovery evidence.

(iv) Motive.

4. He further submits that the learned trial Court has awarded death sentence to respondent No,1 after evaluating the evidence on record with cogent reasons. The judgment of the trial Court is in consonance with the law laid down by this Court in various pronouncements whereas the learned High Court had reversed the conviction by misreading and non-reading of the evidence on record.

The learned High Court had erred in law to give due weight for lodging the F.I.R. By the complainant after 17 hours in spite of the fact that delay was never considered to be fatal in criminal cases. The prosecution had proved the case against the respondents by producing eye-witnesses who were present at the spot and this fact was not considered in its true perspective by the learned High Court in the impugned judgment. He further maintains that story of the prosecution appears to be correct as the murder of Nazir Ahmed had taken place as narrated in the contents of the F.I.R. He further maintains that learned High Court had erred in law to discard the statement of eyewitnesses furnished by two eye-witnesses namely Hashmat Ullah P.W.3 and Farman Ahmad P.W.2. He further maintains that the learned High Court had also erred in law to discard the evidence of Khaliqdad D.S.P. C.W.1 without any justification, therefore, learned High Court had committed a patent illegality to ignore the dying declaration/statement which fully corroborated with the statement of the aforesaid Investigating Officer C.W.1. He summed up his arguments that the learned High Court had acquitted the respondent No,1 merely on conjunctures and surmises and in this way gross miscarriage of justice had taken place while acquitting the respondent No, 1.

5. Learned D.P.G. Appearing on behalf of State resisted the petition.

6. We have considered the submissions made by learned counsel for the parties and perused the record. It is admitted fact that incident took place on 30-6-1993 at 7-15 a.m. Whereas F.I.R. Was got registered on a written complaint on 1-7-1993 at 12-10 a.m. The place of occurrence is at a distance of 10 miles from the police station. The F.I.R. Was lodged by the complainant after considerable delay of 17 hours without explaining the said delay in spite of the fact that complainant had stated in the written complaint that there was two eyewitnesses at the spot and none of them informed the police before filing a written complaint by the complainant. 17 hours delay in F.I.R. Provides sufficient time for deliberation and consultation when complainant has given no explanation for delay in lodging the F.I.R. It is enough time for complainant to fabricate the story, therefore, possibility cannot be ruled out qua false 'implication of the respondent. It is also a settled law that delay of 17 hours in making F.I.R. Not explained leads to inference that the occurrence was unwitnessed. It is also a settled law that unexplained delay in registration of F.I.R. Specially when the place of occurrence is at a distance of 10 miles from the police station and there were two other eye-witnesses present at the spot along with the complainant, therefore, such situation indicates that the eye-witnesses were procured and induced to the eye-witnesses, therefore, finding of the learned High Court that A neither the complainant nor the eye-witnesses were present at the spot.

We do not find any infirmity or illegality in the finding recorded by the learned High Court in para.7 of the impugned judgment. The learned High Court had also taken note that Farman Ahmad P.W.2 had made dishonest improvement before the trial Court while stating that respondent fired first at the deceased and then the remaining accused also fired on the deceased. The aforesaid portion was duly confronted by the learned defence counsel as mentioned at page 64 of the paper book and the learned High Court had also came to a right conclusion that dying declaration recorded under section 161, Cr.P.C. Of Nazir 'deceased was fabricated one and was in clear conflict with the medical evidence as there was only one injury. We have also re-examined the record in the interest of justice and fairplay, we do not find any infirmity or illegality qua the aforesaid finding that the report of the doctor is in conflict with alleged dying declaration of the deceased as mentioned above. It is also admitted fact that six accused were acquitted on the basis of the same evidence whereas respondent No,2 was convicted and sentenced to death by the trial Court without any independent piece of evidence which connected the respondent No,1 with the commission of offence. Mere reading the contents of the F.I.R. There was general allegation against all the accused, therefore, learned High Court was justified to discard the prosecution evidence keeping in view the principle of consistency against respondent No,l. It is a settled law that dying declaration like statement of interested witnesses requires close scrutiny and dying declaration when undoubtedly a statement of interested person had required C corroboration. See Tawaib Khan's case PLD 1970 SC 13, Sher Bahadar's case 1972 SCM R 651 and Muhammad Yasin's case 1978 SCM R 303. It is also a settled law, as mentioned above, eye-witnesses found to have falsely implicated six out of seven accused then conviction D of the remaining accused on the same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case PLD 1975 SC 588, Sheral alias Sher Muhammad's case 1999 SCM R 697 and Atta Muhammad's case 1995 SCM R 599. It is also a settled law that E credibility of the ocular evidence is not divisible.

See Faiz Bakhsh's case PLD 1959 PC 24, Nadia's case 42 Cr.LJ 53, Muhammad's case PLD 1954 FC 84, Sher Bahadar's case 1972 SCM R 651 and Muhammad Afsar's case PLD 1954 FC 171. It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case PLD 1963 Kar.

805. It is also a settled law that there are different parameters/ principles prescribed by this Court with regard to decide the criminal petitions against conviction and criminal petitions against acquittal. The G 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.

7. In the light of principle laid down by this Court in the aforesaid judgment, we see no illegality committed by the learned High Court while acquitting the respondent with cogent reasons as mentioned above in the preceding paragraphs, therefore, petition has no merit and the same is dismissed. Leave declined.