NAZAR HUSSAIN vs GHULAM QADIR and another

' RANA BHAGWANDAS, J.---Petitioner-complainant seeks leave to appeal against Lahore High Court judgment dated 25-11-2001 acquitting respondent-Ghulam Qadir of the charge of commission of Qatl-i-Amd of deceased-Shahbaz on or about 3-2-1994 within the jurisdiction of Police Station Kakrali by firing at him from a rifle.

2. In the F.I.R., lodged after a considerable delay of fifteen hours, as many as ten persons were implicated in the commission of the crime having fired from their respective weapons at the complainant and his party, who laid themselves in the standing crops in order to avert the fatal shots. It is the case of the prosecution that as soon as deceased-Shahbaz raised his head he was fired at by Ghulam Qadir-respondent over his overhead which proved to be fatal Complainant- Nazar Hussain-PW.5 and Tanveer Ahmed-P.W.6 were nominated as eye-witnesses in the F.I.R. After the arrest of the respondent and his associates, as many as four rifles and a gun were recovered from five accused. A 7 m.m. Licensed rifle was statedly recovered at the pointation of the respondent from the wall of a room of his house on 18-2-1994. It is also pertinent to notice that as many as ten assailants allegedly fired at the complainant party but surprisingly not a single empty was recovered from the place of incident.

3. At the conclusion of the trial, respondent alone was convicted under section 302(b), P.P.C. And sentenced to death in addition to compensation of Rs,10,000 or in default to undergo one year R.I.

Eight co-accused were acquitted while tenth accused was declared as proclaimed offender and appears to be still fugitive from law.

4. In appeal, a learned Division Bench of the High Court, on reappraisal of evidence, reversed the findings and verdict of the trial Court and acquitted the respondent taking the view that there was -long standing enmity between the accused party and the complainant party, thus, enmity being a double-edged weapon could not be accepted as strong motive for the commission of the crime.

Both the eye-witnesses were found to be hostile to the respondent and closely related to the deceased, whose evidence did not inspire confidence for want of strong corroboration. High Court was also impressed by glaring and unexplained delay in lodging of the report, inasmuch as, Shahbaz had been injured at the spot and was immediately rushed to the hospital, yet it took fifteen hours to the complainant to lodge the report of the incident. Another circumstance, which found favour with the learned Members of the Division Bench, appears to be that Investigating Officer came to know about the alarming occurrence soon after the incident but he preferred to proceed to Gujrat to see D.S.P. (Legal) and though returned after 1-1/2 hours yet did not proceed to the place of incident. When called upon to explain, he claimed that he had left message for the Moharrir to depute ASIPs to proceed to the place of incident and though on return he learnt that deceased had succumbed to the fatal injuries, since complainant did not reach the Police Station, no report was lodged. It has further transpired from the evidence of the Investigating Officer- Munawar Hussain Bhatti-P.W.11 that even A.S.P. Of the Circle had visited the place of occurrence yet no steps were taken for reducing the report of the gruesome incident into writing. This delay, per se, is sufficient to demolish the prosecution case, inasmuch as, ten members of family were roped into this crime without any factual or lawful basis.

5. There is another aspect of the case; namely eight co-accused of the respondents, equally involved in the act of firing, though acquitted, by the trial Court, no appeal was preferred by the complainant against their acquittal, event if the version of the witnesses were accepted that they had laid themselves in the standing crop, how was it possible and probable for them to have identified respondent Ghulam Qadir out of ten persons by firing the fatal shot at the deceased.

6. On a careful assessm ent of the evidence and scanning of the reasons given by the learned High Court, we are inclined to agree with the findings of fact recorded by the High Court, which is neither against the evidence nor shocking and perverse so as to exercise the discretion against an order of acquittal, which otherwise doubles and multiplies the presumption of innocence in favour of an accused.

7. In view of what has been stated hereinabove, there is no merits in I this petition, which must fail and is hereby dismissed.