ZAHOOR FATIMA Versus MUHAMMAD NAEEM

ORDER

1. SHAFIUR RAHMAN, J.- -The petitioner seeks leave to appeal against the judgment, dated 13-1-1982 of the Lahore High Court whereby accepting the appeals of the first four respondents, they were acquitted of the charges under section 302/34, P.P.C., while the acquittal of the respondents Nos. 5 and 6 by the trial Court was maintained and the revision petition filed by her was dismissed.

2. The occurrence took place on the 9th of February 1979 at 8-00 a.m. in village Babakwal at a distance of five miles from the Police Station Ferozewala, District Sheikhupura. The report about the occurrence was lodged by the petitioner Mst. Zahoor Fatima (P.W.12) at 5-15 p.m. on 10-2-1979 at the Mayo Hospital on the basis of which a case was registered at the Police Station under section 307/148/149, P.P.C. The injured Sibtain Shah died at 4-45 a.m. on 13-2-1979 whereupon the offence was altered to section 302, P . P . C . No motive or cause for the occurrence was disclosed in the First Information Report. However, it transpired that there was a longstanding enmity between the complainant and the accused party evidenced by the registration of cases in the past. Only two ladies Mst. Zahoor Fatima (P.W.12) the mother of the deceased and Mst. Ghulam Faiza (P.W.13) aged about 12 years, a daughter of the deceased, were produced as eye-witnesses. Muhammad Sadiq (P.W.6) and Noor Muhammad (P.W.7) were produced to state about the accused persons leaving the place after the occurrence. Muhammad Jameel (P.W.9) and Muhammad Anwar (P.W.10) were produced to state about the dying declaration of Sibtain Shah. All the accused persons armed with Chhuri, hatchet, pistol, Toka and Sota allegedly attacked Sibtain Shah, injured and ultimately killed him. There were a number of incised wounds on his person including a fracture of the left ankle joint. At the post-mortem as many as seventeen incised wounds, one laceration and one abrasion were reported.

3. The trial Court held the first four respondents guilty of the offence under section 302/34, P.P.C. and sentenced all of them to imprisonment for life and a fine of rupees two thousand each. The respondents Nos. 5 and 6 were acquitted.

4. On appeals from the convicts and revision from the complainant the entire case was re-examined by the High Court and it held that the case against the named respondents was not free from doubt and allowing the appeals set aside their conviction and sentence ordering their release.

5. Raja Muhammad Muzaffar, Advocate, the learned counsel for the petitioner has taken us through, the evidence and his main grievance is with regard to the view taken by the learned Judges of the High Court of the recovery and the report relating to the weapons of offence being stained with human blood. According to the learned counsel for the petitioner, even if the other evidence of the prosecution was inimical or interested the required corroboration was forthcoming from the evidence of recovery and the presence of blood-stains on the recovered weapons. There was no occasion to consider the case of the prosecution not proved against them.

6. With regard to the ocular testimony the learned Judges in the High Court held as follows:-----

7. "The extreme previous enmity between the parties is clearly established. The eye-witnesses of the occurrence produced by the prosecution are two ladies, namely, Mst. Zahoor Fatima P.W.12, mother of the deceased, and Mst. Ghulam Fiza P.W.13 11/12 years old daughter of the deceased. Their testimony has not been relied upon in respect of the two acquitted co-accused, namely, Bashir Ahmad son of Allah Rakha and Bunyad Hussain, although identical parts had been ascribed to them as that to the four appellants."

8. As regards the witnesses who were not produced the High Court observed as hereunder:--

9. "In this connection in all six witnesses were mentioned in the F. I. R. out of which two had been produced, namely, Muhammad Jameel, P.W.9 and Muhammad Anwar, P.W.10. The four, namely, Yaseen, Ismail, Yousaf and Siddique were not produced but were given up as unnecessary. Muhammad Anwar P.W. is stated to have taken the deceased to the Mayo Hospital Lahore and Or. Ejaz Ahmad P.,W. supports this assertion."

10. As regards the recovery evidence the following findings were recorded:--

11. "Three objections had been raised about the recovery evidence. First is that only one public attesting witness has been produced, namely, Ibn Hussain P.W. who is a hostile witness. This position cannot be denied. The only other recovery witness produced is Aneesur Rehman, S.I. P.W. who kept these blood stained recoveries for a period of three months with him before he sent them further for chemical examination. In our view, he is also not a reliable witness. The next objection is that the mode of recoveries was suspicious. Three of the recoveries were made out of a single box and the fourth was made from underneath the same. But even if the first and second objections were not taken into consideration, the third objection is extremely important and that is unexplained delay of about three months in sending the scrapings of blood-stained recoveries for chemical examination or to the Serologist. In the background of this delay, it could not be said that these recoveries, according to the report of the Serologist, could have been found to be stained with human blood. In this connection, learned counsel has already cited the relevant authorities which we rely upon and respectfully follow. The result is that the recovery evidence, in the instant case, is also of no corroborative value."

12. Similarly, the evidence of the two witnesses with regard to the oral dying declaration was also examined and rejected. The High Court concluded as hereunder:-- .

13. "We are eventually left with uncorroborated testimony of interested eye-witnesses, because corroboration through interested evidence of interested ocular testimony would not make the ocular testimony reliable. It is possible that some of the members of the accused-party might have participated in the crime, because we have been informed that previously the deceased had attacked Bunyad Hussain, acquitted co-accused and had broken his legs. But in the background of enmity we cannot draw a line between the innocent and the guilty ones in the instant case. The problem is that whenever there is background of long-standing enmity the tendency is to enlarge the net and to rope in the innocent with the guilty and when no line can be drawn between them, the usual result is that the guilty get off with the innocent ones."

14. We find from the observations reproduced from the judgment of the High Court that all aspects of the case have been fully considered the and a view has been taken of the evidence which cannot be said to be either perverse or not in conformity with the principles well recognised for the safe administration of criminal justice. In a situation like this what the learned counsel for the petitioner is seeking is only a reappraisal of the same evidence with a view to arrive at a different conclusion which is not the scope of an appeal against acquittal. Hence leave to appeal is refused.

15. M.I. /Z-19/S Petition dismissed.