NABI KHAN Versus MUSHTAQ

ORDER

Mushtaq, Abdur Rehman alias Lallu, Zahoor and Qamar‑ud‑Din alias Kamma were tried by the Sessions Judge, Kasur for having murdered Nawaz Khan on 13‑2‑1987 at 6/7‑00 a.m. in the area of Jhuggian Chheena, Police Station Raiwind. The case was registered on 14‑2‑1987 at 2‑30 p.m. on the statement of Nabi Khan son of Kala, brother of the deceased. Learned trial Judge acquitted the respondents (Nos. 1 ‑ 4) vide order, dated 2‑11‑1987. On the State having refused to file appeal against acquittal, the complainant has filed this revision petition, seeking setting aside of acquittal and retrial of the accused.

2. At the trial, prosecution examined in all ten witnesses. Nabi Khan P.W.2 and Naseeb Khan P.W.5 brothers of the deceased and Mangal Khan P.W.3 and Nur Muhammad P.W.4, first cousins of the deceased, 'had deposed the ocular account.

Dr. Muhammad Hussain who had performed autopsy on the dead body of the deceased on 15‑2‑1987, appeared as P.W.10.

3. No evidence was led at the trial about medical examination of the deceased whilst alive, after the occurrence and before his expiry.

4. The occurrence, according to the complainant and the eye witnesses had taken place on 13‑Z‑1987. Iftikhar Ahmad Khara, D.S.P. P.W.9 who was entrusted the investigation at some later stage after the registration of case, expressed opinion that the occurrence, in fact, had taken place on 11‑2‑1987 and not on 13‑2‑1987. Dr. Muhammad Hussain P.W.10, who had performed autopsy and noted five injuries on the body of the deceased, was not able to express opinion about the cause of death. He had sent the viscera to the office of the Chemical Examiner and had reserved his opinion for declaring the cause of death. On the receipt of report from the office of the Chemical Examiner that no poison was found in the viscera, he made a note that death was due to cardiopulmonary failure, because of the injuries.

5. Learned trial Judge took note of the difference in the ocular account and the finding of the‑ Investigating Officer about the happening of the occurrence, and also took note of the fact that the F.I.R. was lodged with a delay. The fact was also taken note of by the trial Judge about positive non‑proof of the cause of death.

6. Learned counsel appearing for the petitioner has not been able to explain the difference and the discrepancy about the happening of occurrence found by the D.S.P. on investigation, and stated by the eye‑witnesses.

7. The observation made by learned trial Court about the testimonies of the eye‑witnesses and the fact of their being related and so interested, has also not been controverted effectively by learned counsel for the petitioner, warranting setting aside of the acquittal of the respondents. It is worthwhile to note here that the Sotas said to have been recovered from Mushtaq and Lallu accused were not blood‑stained and both the witnesses, i.e. Muhammad Akhtar P.W.7 and Abdul Majid P.W.8 who deposed about the recovery of Sotas at their instance, made contradictory statements. In that, Muhammad Akhtar P.W. stated that Mushtaq and Lallu accused got recovered Sotas from near the canal bank while Abdul Majid P.W. stated that both of them had got recovered the Sotas from their houses.

8. The Investigating officer who had registered the case and had conducted the initial investigation, was also not examined.

After having gone through the evidence, the impugned judgment and after having considered the contentions raised by learned counsel for the petitioner, I am convinced that no case for interference by way of exercise of revisional powers in the judgment of acquittal is made out. There is no merit in this petition. The same is dismissed.

M.Y. H./N‑111/L Petition dismissed.