MALLA Versus KHIZAR Muhammad Ismail Chaudhry , Ch. Abdul Aziz
This is a criminal revision moved by Malla son of Murad, against Khizar son of Muhammad, Shera and Ahmad sons of Ziada, against the judgment, dated 26‑6‑1985, of the learned Sessions Judge, Jhang, whereby the respondents were acquitted by giving them the benefit of doubt.
2. The case in brief is that Malla ('P.W.7) lodged the F.I.R. with Asghar Ali (P.W.11) on 19‑9‑1983 at 6‑00 a.m. wherein it was disclosed that on the night preceding the day of occurrence, the petitioner Malla and Ismail deceased were sleeping in their Behak in Killa No.19 of Square No.105, when at early hours of the morning Malla got up and went away to the water channel in order to wash him up. Before Malla could reach the water channel, respondent Khizar armed with a pistol, Ahmad and Muhammad armed with hatchets and Shera respondent armed with a Lathi reached the Behak of the deceased. A Lalkara was raised by Ahmad respondent he had come to teach him a lesson for having liaison with his daughter Mst. Khatoon. The deceased Ismail tried to get up from the cot. Khizar respondent fired with his pistol hitting the deceased on his right temporal region and on the receipt of the injury Ismail died instantaneously. After committing the offence, all the accused respondents ran away from the spot. Besides Malls, Barkhurdar son of Mahal, and Barkhurdar son of Salehon also witnessed the occurrence.
Motive for the murder was that Ahmad had a suspicion that Ismail deceased was carrying on with his daughter Mst. Khatoon.
3. The prosecution, in support of its case, produced the medical evidence, ocular evidence and evidence of recovery of blood‑stained earth from the place of occurrence and the report of the Chemical Examiner as well as the evidence of motive. The eye‑witness account was provided by Malla (P.W.7) and Barkhurdar (P.W.8). Evidence of motive has been given by Malla (P.W.7) only. Accordingly to his statement, the accused respondent Ahmad suspected his daughter for having illicit relation with deceased Ismail and before this occurrence, all the, four accused had come to the deceased duly armed with sticks and had asked him to refrain from taking water from their water pump as they had a young girl in their house. Zulfikar Ali (P.W.10) partly investigated the case. He admitted in his cross‑examination that during the investigation Mst. Khatoon appeared before him and that she was a minor girl of 10/11 years. The girl was medically examined by a lady doctor in order to find out that she was a minor and virgin.
4. Dr. Jamshed Alam (P.W.3) conducted the post‑mortem examination on the dead body of Ismail and found the following injuries on his person:‑
(1) A fire‑arm wound of entrance x c.m. On the right side of face in front of the tragus of the ear. The wound was bleeding.
(2) A fire‑arm wound of exit on the left side of head in front and above the ear.
In the opinion of the doctor, death occurred due to shock and haemorrhage resulting from injury No.1 which was ante‑mortem caused by a fire‑arm and was sufficient to cause death in the ordinary course of nature.
5. The respondent denied the allegations against them while making statements under section 342, Cr.P.C.
6. The learned trial Court after discussing the entire evidence, observed that there is no sufficient evidence to convict the respondents. The learned trial Court did not believe the eye‑witnesses account. Regarding Malla (P.W.7) observation of the learned trial Court was that he is an interested witness being the real father of the deceased and Barkhurdar (P.W.8) is merely a chance witness.
Regarding the motive, it was held that the same has not been proved.
7. Learned counsel for the petitioner argued that the evidence of motive was available on record and that quality of evidence is to be seen and not the quantity. Learned counsel submitted that there was no justification to disbelieve the evidence of Malla (P.W.7) and Barkhurdar (P.W.8). The learned counsel lastly argued that this is a case of misreading of evidence and thereby substantial injustice has been done in the case. Learned State counsel submitted that no appeal has been filed by the State because this was not a fit case for doing so. Learned counsel urged that he supports the judgment of acquittal passed by the learned trial Court.
8. I have heard learned counsel for the parties and have perused the record very carefully. The only contention raised by learned counsel for the petitioner is that there was enough evidence to prove the motive as set up by the prosecution. I am afraid, I cannot agree with the learned counsel. The motive part of the prosecution story has not been proved by cogent and reliable evidence. The solitary statement on motive is that of Malla (P.W.7) who is father of Ismail deceased. There is no other evidence whatsoever produced by the prosecution in corroboration of the only testimony of Malla (P.W.7). He is highly interested witness and, therefore, unless there is independent corroboration, he under law cannot corroborate his own statement. On the other hand, the statement of Malla P.W. stood contradicted by Zulfiqar Ali (P.W.10) who partly investigated the case. The evidence of the Investigating Officer is that he found the girl a minor, aged 10/11 years. She was also medically examined by a Lady Doctor who found her to be a minor and virgin. Thus, in these circumstances, the motive part of the prosecution story is of no significance at all. Barkhurdar (P.W.8) appears to be a chance witness and he had no business to be present at the spot and as such, his evidence was also rightly discarded by the learned trial Court. The prosecution has failed to prove the exact time at which the occurrence had taken place. From the trend of the eye‑witness account it is apparent that the occurrence had taken place in the small hours of the morning. The Investigating Officer has made categorical statement in Court that he did not see any Khal on the Banna between Killas Nos. 19 and 20. Thus, in my view, the prosecution has not been able to prove any case against the accused respondents. The eye‑witnesses Malla (P.W.7) and Barkhurdar (P.W.8) have rightly been disbelieved by the learned trial Court. I do not find any wrong with the findings of the learned trial Court. Malla (P.W.7) is the father of the deceased and Barkhurdar (P.W.8) is chance witness as stated earlier. Therefore, no reliance can be placed on their testimony. From the prosecution evidence, it is not established that the occurrence had taken place at the time and in the manner as mentioned in the F.I.R. It appears that the occurrence had taken place in the night and the same appears to have been unwitnessed. Therefore, the possibility of the deceased Ismail been done to death in the night by some unknown person cannot be ruled out, especially when there is no independent corroboration to the evidence of Malla (P.W.7). The learned trial Judge has thoroughly discussed each and every aspect of the case and has given a very exhaustive judgment thereby acquitting the respondents by giving them the benefit of doubt. I do not find that the judgment is perverse or is based of surmises and conjectures. The learned Judge has discussed the evidence of Malla (P.W.7) and Barkhurdar (P.W.8), the medical evidence and has taken into consideration the facts and circumstance of the case. His conclusion arrived at by him is based on very solid reasons. Under the circumstance I do not find any substance in this revision petition which is accordingly dismissed.
M.Y.H./M‑794/L Petition dismissed.