MUHAMMAD KHALID KHAN vs ABDULLAH and others

ORDER

' TASSADUQ HUSSAIN JILLANI, J.--- Respondent Abdullah and Najeeb Ullah were tried along with six others for the murder of Shahjehan in the case registered vide F.I.R. No,216 dated 29-10-1998 registered at Police Station Mochh under sections 302/34, P.P.C. And vide the judgment dated 24- 9-2001 while acquitting the rest, the learned trial Court convicted the respondents under section 302(b), P.P.C. And sentenced them to death and also with a fine of Rs,10,000 each. The judgment was challenged in revision by the complainant and by respondents-convicts in appeal. The learned High Court allowed the appeal and dismissed complainant's revision petition.

Consequently the respondents stand acquitted vide the impugned judgment.

2. The prosecution case as given in para.2 of the impugned judgment is as under:- "At about 12-00 noon Abdullah and Najeebullah appellants, armed with a Kalashnikov each, emerged there from the Sarkandas and both of them fired bursts from their Kalashnikovs and the bullets hit Shah Jahan Khan on different parts of ins body. In the meanwhile the appellants' co- accused namely Amir Umar Khan, Umar Khan, Habibullah and Saifullah, all armed with different firearms, also emerged there and fired at the complainant party but the complainant and others saved their lives by lying flat on the ground. Upon the hue and cry raised by the complainant and others the appellants and their co-accused decamped from the place of occurrence towards the Dera of Saifullah Khan. Shah Jahan Khan succumbed to his injuries and died at the spot. The motive set up in the F.I.R. Was that Shah Jahan Khan deceased had an on-going enmity with the appellants and their co-accused and it was in that backdrop that the appellants and their co- accused had committed the murder of Shah Jahan Khan with the abetment of Zubair Khan and Ghulam Abbas Accused."

3. During trial the prosecution examined 15 witnesses including the doctor and the Investigating Officer. P.W.9 Khalid Khan, P.W.10 Mumtaz Khan and Tariq Shah P.W.7 furnished the ocular account.

The accused when examined under section 342, Cr.P.C. Denied the prosecution case and attributed false implication to enmity.

4. Learned counsel for the petitioner seeks leave on the ground that the learned High Court failed to appreciate that it was a case of broad daylight occurrence; that F.I.R. Was lodged promptly; that all the accused were specifically named; that the ocular account was furnished by natural witnesses and their relationship with the complainant would not necessarily discredit them.

5. While considering the submissions made by petitioner's learned counsel in the light of the evidence on record, we note that the learned High Court acquitted the respondents as it found that the testimony of P.W.9 Muhammad Khalid Khan complainant and Muhammad Mumtaz P.W.10 did not inspire confidence and further that they are chance witnesses. It is in evidence that it took two to 2-1/2 hours on a wagon to come to the spot from their respective houses; that they had not reasonably explained their presence at the spot; that the complainant introduced two eye- witnesses but produced only one; that the names of those newly added eye-witnesses were not mentioned in the F.I.R. And they were disclosed to the Investigating Officer after few weeks of the occurrence. It was further found by the learned High Court that the eye-witnesses being admittedly inimical towards the respondents, unimpeachable evidence was required to corroborate the ocular testimony for a sustainable conviction, which in the instant case was lacking.

6. The grounds which found favour with the learned High Court in passing the impugned judgment are neither fanciful nor conjectural. Those are backed by the material on record. Besides the other infirmities in prosecution case alluded to in the preceding para. The empties though secured from the spot were never sent to Forensic Science Laboratory for comparison. Even the motive was nor explicit and was rather vague.

7. In the afore-referred circumstances, we have not been persuaded to interfere with the impugned judgment. The petition lacking in merit is accordingly dismissed and .

Leave declined.