FAQIR MUHAMMAD vs MUHAMMAD RAMZAN AND Other

1. SHAH NAWAZ KHAN, J.-This petition has been submitted by Faqir Muhammad wherein it is prayed that leave for appeal be granted against the order dated 3-10-1980 of the Lahore High Court in Cr.

2. Appeal No. 765 of 1978, whereby, the appeal of Safdar Hussain and Sabir Hussain was granted and they were acquitted of the murder charge punishable under sec--tion 302/ 34, P. P. C.

3. Safdar Hussain, Sabir Hussain, Basharat, Muhammad Ramzan sons of Jehan Dad and Jehan Dad and one Mazhar son of Muhammad Sadiq were tried in the Court of Additional Sessions Judge, Rawalpindi, under sec--tions 302/149/148, P. P. C. For causing the murder of Fazal Hussain, deceased, son of Sarwar Khan on 22-a-1974 near Mankiala Railway Station within the limits of Police Station Rewat, district Rawalpindi. After the trial, the learned Additional Sessions Judge found Basharat, Muhammad Ramzan, Jehan Dad and Mazhar not guilty and by his judgment dated 25- 6-1978, he acquitted them. Safdar Hussain and Sabir Hussain were, however found guilty of offence under section 302, P. P. C. Safdar Hussain was con--sequently convicted and sentenced to suffer death penalty. Fine of Rs. 5,000 or in default further R. I. For 3 years was also imposed on him. Sabir Hussain was, however, sentenced to life imprisonment and a fine of Rs. 2,50a and in default of payment of fine he was directed to. Suffer l 1/2years' further R.

1. It was also directed that the amount of fine as imposed, if realised, was to be paid to the heirs of the deceased by way of compensation.

4. The two appellants then went on appeal to the High Court against their conviction. Reference was also made by the trial Judge for confirmation of death sentence awarded to Safdar Hussain appellant under section 374, Cr. P. C. Faqir Muhammad, complainant, also filed revision petition seeking the conviction of the four acquitted accused and also for awarding capital punishment to Sabir Hussain appellant.

5. The High Court after hearing the appeal and the revision petition came to the conclusion that the prosecution had failed to prove its case against any one of the appellants or the acquitted accused beyond resonable doubt, and while extending the benefit of doubt to them the appeal of Sabir Hussain and Safdar Hussain was accepted and they were acquitted, while the revision petition of Faqir Muhammad against the acquitted accused was dismissed. The order of 'the High Court, as it reads, shows that the revision petition filed by the complainant was not pressed. The death sentence of Safdar Hussain was consequently not confirmed.

6. Faqir Muhammad has now moved this Court for the grant of leave as stated above. We have heard the learned counsel for the petitioner. This petition is against all the six accused including the 4 acquitted accused against whom the complainant. Had not pressed his revision petition in the High Court as indicted above.

7. F. I. R. In the instant case was lodged by Faqir Muhammad, complainant, who stated that they had gone to their fields near Mankiala Railway Station for cutting the wheat crop, at about 5-30 a.` m.

8. And that they had not yet cut the wheat crop when they heard noise from the side of Mankiala Railway Station on which they ran towards the spot and saw the occurrence. In his statement in Court he said that they had cut the wheat and had prepared two bundles of wheat crop. Bashir Ahmad, Revenue Patwari, was examined as P. W. 4 and he stated that on the spot Faqir Muhammad and Muhammad Khan P. Ws. Had not pointed out to him any field belonging to them situated on the western side of the spot, and he could not say whether the said two persons owned any land near the spot or not.

9. The ocular version has been furnished by P. Ws. Faqir Muhammad, Abdul Razzaq, Muhammad Khan and Ghulam Hussain. Faqir Muhammad and Muhammad Khan are related to the deceased and they had enmity with the convicts. As observed by the High Court, their testimony suffers from conscious improvements and cannot be considered as reliable. There are discrepancies in their statements , on material points. The defence produced and. Placed on record, the copy of the F. I. R.

10. (Exh. D. E.) which proves that Abdul Razzaq P. W. 6 has enmity with the appellant. He states that he had been injured by Safdar Hussain on his nose, but the Medical Officer who examined him has opined that the injury was self-suffered. Abdul Razzaq had admitted that he was a chance witness.

11. The High Court has disbelieved his statement on the ground that he is clot a reliable witness and that he had made improvements in his previous statement on the essential particulars. The statement of Ghulam Hussain P. W. Was also rejected by the High Court on the ground that he was a party man of the complainant. This is besides the fact that although denied it is proved on record that he had also appeared as a witness for Faqir Muhammad com--plainant against the relatives.

12. Of, the appellants in another criminal case. He was confronted with his previous statement recorded in the committing Court and he stood contradicted materially. The High Court maintained that these eye-witnesses were chance witnesses and party men of the com--plainant, and, therefore, their evidence did not inspire confidence. The High Court also doubted the evidence of recoveries and they held that such recoveries did not provide any corroboration. This was besides the fact that the medical evidence was considered to be running in conflict with the oral testimony of the witnesses. The High Court also observed that, in view of 'the post-mortem report, the occurrence took place at 3 or 4 a. m. And not at 5 or 6 a. m., and it was the month of April, 1974, and, therefore, it was doubtful if the occurrence could be seen by any one. Moreover the motive, as described by the prosecution, was very weak and, in any case, it was proved on record that the previous grievance had been compromised.

13. The presence of the eye-witnesses on the scene of occurrence at the time of occurrence appears to be very doubtful. No independent witness has been produced, not even a witness from the railway station where the occurrence took place. No sickles have been recovered or taken into possession by the Investigating Officer which might show that Faqir Muhammad and Muhammad Khan had gone to a place near the scene of occurrence for cutting the wheat crop nor any bundle of wheat had been taken into possession. In fact, Faqir Muhammad and Muhammad Khan had not been able to show to the Investigating Officer any land near about the spot in which they were allegedly working. The version of the Police officials is also contradictory. The Investigating Officer says that he was present at the railway station when Faqir Muhammad lodged the F. I. R. Ahmad Khan, constable, P. W.

9. Had stated that he had accompanied Fazal Hussain, A. S. I, from the police station to the spot which showed that the information had passed on to the police station, but the, F. I. R. Was not recorded till the preliminary investigation was made on the spot.

14. Considering the evidence recorded in this case as a whole, we are of the view that the trial Court while acquitting Muhammad Ramzan, Basharat, Mazhar and Jehan Dad did not arrive at a perverse conclusion, and the High Court in accepting the appeal of Safdar Hussain and Sabir Hussain and acquitting them of the murder charge considered the evidence carefully. The judgment of the High Court is neither perverse nor it has caused any material injustice which might be considered sufficient for this Court to intervene. We find no substance in this petition. Cr. P. S. L. A.

15. 2-R of 1981 is, therefore, dismissed.