TAYYAB HUSSAIN vs ANSARI ALI and others

ORDER

TASSADUQ HUSSAIN JILLANI, J.--- Leave is sought against the judgment of acquittal of respondents dated 1-6-2004 passed by the learned High Court who having been tried (in the case F.I.R.No,55, dated 9-2-1997 registered at Police Station Sarai Alamgir under sections 302/382/411/34, P.P.C.) were convicted by the learned Additional Sessions Judge/Judge Special Court, Gujrat and sentenced to death vide the judgment, dated 18-1-2001.

2. The prosecution story as given in the F.I.R. Briefly stated is that on 8th of February, 1997 at 9-45 p.m. Complainant along with Muhammad Shabbir, Naeem Sajid (P.W.2), Naseer Ahmad, Babar Shehzad were sitting at a public call office situated in Qasba Market when they heard firing from across upper Jhelum canal on the road leading towards Jaggo Head whereupon the afore- referred persons boarded a Car (No,733-RIL) which was being driven by Muhammad Shabbir and complainant along with Asghar Ali followed the said car. In the meanwhile they heard Hasnat Ahmad and Aitezaz raising hullabaloo that they had been robbed of the motorcycle by the dacoits upon which Muhammad Shabbir started chasing dacoits three in number and were plying the snatched motor bike. The complainant also joined the chase as the car being driven by Muhammad Shabbir got near the robbers, all the three dacoits started firing which hit Muhammad Shabbir (car driver) and two of his companions namely Naseer Ahmad and Babar Shehzad. They succumbed to the injuries and died at the spot. Naeem Sajjad P.W.2, however, survived the attack.

In the F.I.R. Registered, none was named as an accused. However, their marks of identification were mentioned. After due investigation the respondents were sent up for trial wherein the respondents denied the charge and pleaded innocence but they were ultimately convicted and sentenced to death on three counts.

3. Learned counsel for the petitioner seeks leave on the ground that the prosecution case consisted of 16 witnesses including the doctor and the Investigating Officer; that the ocular account was furnished by Naeem Sajid P.W.2 whose clothes were smeared with blood; that P.W.1 Tayyab Hussain, P.W.3 Aitezaz Taj and P.W.2 Naeem Sajid had duly identified the accused during investigation; that they had no-prior to falsely implicate the respondents; that the learned High Court has reversed the judgment of conviction on grounds which are against the weight of evidence and the same has led to grave miscarriage of justice.

4. We have gone through the evidence on record and the impugned judgment with a view to consider the submissions made by petitioner's learned counsel.

5. We note that while acquitting the respondents, the learned High Court considered every piece of material evidence on record and came to the conclusion that the presence of the eye-witnesses at the place of occurrence on a dark wintry night was not free from doubt which is further reinforced by the fact that neither the culprits were named in the F.I.R. Nor any identification parade was held to enable them to identify the culprits through a judicial process. The so-called eye- witnesses are not residents of the locality and they failed to explain their presence at the spot. The recovery of weapons from the respondents was of no consequence as the crime-empties secured from the place of occurrence were never sent to the Forensic Science Laboratory for comparison.

Petitioner's learned counsel made a particular reference to the statement of Naeem Sajid P.W.2 to contend that the learned High Court has misread and non-read his statement in observing that this witness had not given a statement under section 161, Cr.P.C. Or that he had not named the accused therein or that he had named them for the first time during trial. He added that observation qua statement under section 161, Cr.P.C. Could only be made if this witness had duly been confronted by the defence with his earlier statement recorded under the aforesaid provision.

Moreover, according to him the presence of this witness at the spot during occurrence could not be doubted as his clothes were smeared with blood and there was medical evidence to the effect that when he was brought to the hospital, he was unconscious on account of the shock of the incident. The arguments of the learned counsel do not advance the case of prosecution. Because the blood on the clothes of this witness or his purported state of shock immediately after the occurrence would not necessarily prove his presence at the spot or that he had identified the assailants. If he was present at the place of occurrence and had identified the respondents, there was no reason for him to withhold this information and not inform the complainant who could have given the names in the F.I.R. The blood on his clothes would again be of no avail for the prosecution as during cross-examination this witness admitted, "my clothes were not stained with blood during the occurrence. I did not carry any of the injured or even did not pour water in the mouth of the deceased as I had become unconscious". The fact that none of the prosecution witnesses had given the names of the accused in their statement under section 161, Cr.P.C. Is admitted by the Investigating Officer Nazar Hussain who appeared as P:W.15 and stated as follows:-- "It is correct that the names of the accused and the bore and make a fire-arm is not mentioned in the F.I.R. Or the statements of the witnesses under section 161, Cr.P.C."

6. For what has been discussed above, the impugned judgment of acquittal is unexceptionable and does not warrant interference. The petition lacking in merit is accordingly dismissed and .