SAID AHMAD vs ZAMMURED HUSSAIN AND 4 Other

1. MUHAMMAD AFZAL ZULLAH, J.-The acquittal of respondents Nos. 1 to 4 by the learned Additional Sessions Judge, Rawalpindi, in a case of murder, armed by the Lahore High Court in its revisional order dated 29th May, 1973, has been brought under challenge through this petition for leave to appeal.

2. The allegations against the said respondents were that they armed with deadly weapons caused injuries to Nazir deceased and Said Ahmad and Mst. Mazloom Bibi P. Ws. Zammured respondent was allegedly armed with a chhuri, while Lal Khan carried a kulhari and the remaining two had sotis. The attack was motivated on account of dispute over a well in connection with which there was an earlier civil litigation. Mst. Mazloom Bibi and Said Ahmad appeared as eye-witnesses and involved all the four respondents as culprits, in their depositions. Evidence was also led to support the recovery of chhuri from Zammured respondent as also weapons said to have been used by the other respondents: The chhuri was found to have been stained with human blood.

3. Zammured and Lai respondents pleaded right of self-defence, while the plea of the other two was of denial. The defence relied on the fact that on medical examination, Zammured and Lai Khan respondents and Mst. Farmida cousin of Zammured and niece of Lai Khan respon--dents, were found to have been injured. The injuries found on the person of Msr. Farmida are as follows :- (1)Both central incisors upper jaw shaky.

4. (2)Laceration quarter inch between gums and upper lips at the level of central upper incisor.

5. (3)Swelling over whole of upper lips.

6. (4)Small laceration with swelling over left side of lower lips.

7. The learned trial Judge did not rely on the ocular evidence, mainly, on the ground that the two eye- witnesses were interested and that they had failed to explain the injuries on two of the accused persons as also on the person of Mst. Farmida. Said Ahmad filed a revision petition in the High Court with having been dismissed in limine by a learned single Judge, he has moved the petition for leave to appeal Learned counsel for the petitioner while admitting that Mst Famida is closely related to the respondents contended that there is no evidence on record to show that she was injured in the occurrence in which Nazir lost his life and the two P. Ws. Were injured ;that it was not necessary for the prosecution to explain the injuries found on the two respondents and lastly that notwithstanding the afore noted failure on the part of the prosecution, the eye-witness account could not be rejected as the same was given by two injured P. Ws. Whose presence could not be doubted.

8. Both the learned Courts below have accepted the defence version that Mst.. Farmida was injured in the same occurrence. We have examined the medical evidence. The duration of the injuries on Mst.

9. Farmida tallies with the time of the occurrence in this case. Learned counsel has also contended in this behalf that the Investiga--ting Officer deposed that Mst. Farmida was not injured in this occur- -rence. This could not be treated as direct evidence. Nothing has been said as to how she received the injuries some of which are fairly serious. It is not the case of the prosecution that they were either self-suffered or self-inflicted. On the other hand, she was cited as a P. W. But was given up at the trial Learned counsel admits that the eye-witnesses did not state as to how and -where Mst.

10. Farmida was injured. The findings of the learned two Courts below in this behalf are unexceptionable.

11. Both Zammured and Lai Khan respondents suffered one injury each but it cannot be said that they were self-suffered. The fact that Mst. Farmida, one of their close relations, was also injured made it all the more necessary for the prosecution to explain as to how three persons on the accused side received several injuries. The learned Single Judge in the High Court rightly observed that Said Ahmad complainant and his sister Mst. Mazloom P. W. Did not disclose the whole truth about the occurrence before the Court. In the circumstances of this case, the failure of the prosecution to explain the injuries on the respondents side, was a very strong circumstances going in their favour and could not have been ignored by the learned trial Court.

12. It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by iself would not show that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence ; parti--cularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely, related to the deceased while the two other eye-witnesses mentioned to the F. I. R., namely--- Abdur Rashid and Riasat were not examined at the trial. This furthers shows that the injured eye- witnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused.

13. After hearing the learned counsel, we do not consider it a fit case for interference. This petition accordingly is dismissed.