TASAWAR SAEED Versus KHALIL AHMAD Ch. Muhammad Anwar Bhinder , Nemo
This Criminal Revision arises from the judgment of learned Additional Sessions Judge, Okara, whereby he on 17‑12‑1986, acquitted Khalil Ahmad respondent of charge under section 302, P.P.C.
2. The prosecution case is that the respondent fired 3 fatal shots on Munawar Saeed and thereby caused his death on 2‑6‑1985 at 7‑00 p.m. in the area of Chak No. 1/S.P. Masawaywala at a distance of 3 miles from Police Station Haveli. The F.I.R. Exh. P.E. was lodged by Tasawar Saeed P.W.8, brother of the deceased on the same day at 8‑00 a.m. and was recorded by Muhammad Ali S.I. P.W.10.
3. The motive as alleged by the prosecution was a family dispute over the distribution of land. The respondent denied the charge and claimed to be tried.
4. Dr. Muhammad Fakhar Ali P.W. conducted post‑mortem examination on the dead body of Munawar Saeed and found as many as 20 injuries on his body. In his opinion, the death was due to shock and haemorrhage caused by injuries No. 1 to 3, which were sufficient to cause death in the ordinary course of nature individually and collectively. All the injuries were caused by fire‑arm. The time between injuries and death was within 5 minutes and between death and post‑mortem was within 12 hours.
5. The appellant was arrested on 2‑6‑1985 by Muhammad Ali, S.I. P.W.10. At the time of arrest he was carrying gun Exh.P.3 which was taken into possession vide memo Exh.P.D. attested by Tasawar Saeed P.W.8 and Haji Muhammad (not produced). It may be noted that the police had recovered four crime empties Exh. P.6 to P.9 from the spot vide memo. Exh. P.F. attested by Muhammad Mansha P‑W‑9 and Muhammad Ali, S.I. P.W.10 and Muhammad Hanif (not produced).
6. To prove its case, prosecution examined as many as 10 witnesses. Tasawar Saeed P.W.8 and Muhammad Mansha P.W.9 have given the ocular account of the occurrence. They claim to have seen the respondent firing three shots on Munawar Saeed resulting in his death. Tasawar Saeed P.W.8 also deposed about the motive. Muhammad Mansha and Muhammad Ali S.I. P.W.10 have supported the recovery of crime empties from the spot and gun from the respondent. The rest of the evidence is more or less of formal nature.
7. When examined under section 342, Cr.P.C, the respondent denied all the incriminating circumstances. He raised the plea of false implication on account of enmity. He did not produce any evidence in defence. He also did not appear as witness in disproof of the charge against him and did not give evidence on oath.
8. The learned trial Court while disbelieving the ocular evidence and incriminating recoveries, has acquitted the respondent.
9. Learned counsel for the petitioner submitted that there is violation of the mandatory provisions of section 340(2), Cr.P.C. inasmuch as, the respondent did not give any evidence on oath in disproof of the charge and as such could not be cross‑examined by the prosecution; that instead of making independent assessment of the statements of recovery witnesses, the trial Court relied on the judgment of Magistrate passed in case under section 13 of the Arms Ordinance, 1965 and disbelieved the recovery evidence on the strength of that judgment; that the eye‑witnesses were quite dependable, inasmuch as they had animous against the respondent; that their statements do not suffer from infirmities such as material contradictions/major discrepancies and dishonest improvements; that it is a case of single accused and daylight occurrence; that the medical evidence corroborates the ocular account and that Forensic Science Laboratory Report also reveals that the crime empties removed from the place of occurrence were actually fired from the gun recovered from the respondent.
10. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the learned trial Court has appreciated the evidence of the prosecution in accordance with the guiding principles laid down by the Superior Courts; that the trial Court has 'come to the conclusion that the eye‑witnesses are related and inimical; that the presence of the eye‑witnesses on the spot was doubtful; that their statements suffer from infirmities such as material contradictions and major discrepancies; that although the occurrence took place in a village consisting 400/500 houses yet not a single witness of the locality was produced by the prosecution and that although the sealed parcel containing empties was handed over to the constable on 3‑6‑1985 yet the same was not delivered in the Office of Forensic Science Laboratory for about 8 days and as such, the evidence of recovery of gun Exh P.3 could not be used against the respondent. I find that the aforesaid reasons given by the learned trial Court for disbelieving prosecution case and its evidence find support from material on record. The trial Court has applied its mind to the relevant evidence and has given sound and cogent reasons for discarding the ocular evidence and for not relying on the circumstance of the recovery of gun from the respondent and that failure on the part of accused/i respondent to give evidence on oath in disproof of the charge against him has not caused any prejudice to the prosecution. It is well‑settled that once an accused is acquitted of charge then strong grounds would be required for interference with the judgment of acquittal.
For what has been said above, I do not see any justification to interfere with the well‑reasoned judgment of acquittal. The revision is dismissed in limine.
M.Y.H./T‑28/L Petition dismissed.