Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 10.01.2007, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby a criminal appeal filed by the petitioner against the- acquittal of Respondent Nos, 1 to 5, by the learned Sessions Judge, Jhelum, in a case under Section 302/148/149 PPC, was dismissed.
2. The facts in small compass leading to the filing of this petition are that on the report lodged by the complainant Muhammad Hanif (PW-7) on 18.8.1992 at 11.35 a.m. at police station Chotala a case under Section 302/148/149 PPC was registered against the respondents for committing murder of Muhammad Sharif, real brother of complainant. It was stated in the FIR that complainant while serving in Pak Army was at home on leave and his elder brother Muhammad Sharif, a school Teacher, was also present in the village due to summer vacation in the school. On 18.8.1992, at about 6.00 a.m. deceased went to the wara of his goats situated in his land at some distance from his house. The complainant and Ghulam Hussain (PW-8) also went to their dera situated out of the village abadi and while on their way at some distance from their dera, they noticed that Muhammad Javed, Muhammad Jamshaid, sons of Mohabbat Khan armed with hatchets, Muhammad Bashir armed with gun and Muhammad Nazir armed with hatchet, were present near the dera of deceased. Mohabbat Khan handing over hatchet to Muhammad Bashir shouted that Muhammad Sharif should be killed whereupon the accused entered in the warra of goats and Muhammad Bashir gave hatchet blow with its sharp side which landed on the right upper arm of the deceased whereas Muhammad Jamshaid inflicted hatchet blow to the deceased on his right shin. Muhammad Nazir gave a hatchet blow with blunt side on the back of deceased below the shoulder. Muhammad Javed caused hatchet blow with its sharp side on the tactical of the deceased and when he fell down, all the five accused caused injuries to him with reverse side of hatchets. The accused after inflicting injuries to the deceased with their respective weapon fled away from the spot. The motive for the occurrence was the litigation between the deceased and Mohabbat Khan, etc., and a civil suit involving dispute of land was also pending in the Civil Court at Jhelum. Mohabbat Khan accused had extended threats to the deceased to kill him before he could cultivate the disputed land and consequently, the accused in furtherance of their common object caused death of the deceased.
The accused were challaned to face the trial and on their pleading non guilty to the charge, the prosecution produced its evidence. The eye-witnesses account was furnished by Muhammad Hanif 'complainant (PW-7), real brother and Ghulam Hussain (PW-8) paternal cousin of deceased.
Dr. Muhammad Arshad, Medical Officer, DHQ, Hospital, Jhelum, appeared as PW-5 and deposed that on 19.8.1992 at 9.00 a.m., on the written request of local police, he conducted the postmortem examination of the dead body of Muhammad Sharif, deceased. The probable time between injuries and death was about 2 hours and between death and postmortem examination about 24 hours.
Muhammad Azam, Head Constable (PW-9) has verified the hand writing and signatures of Muhammad Ali, ASI and Raja Muhammad Sarwar, Inspector, who died before the commencement of trial. Khushi Muhammad (PW-4) has proved the recovery of hatchet. Muhammad. Bashir and Muhammad Yaqoob, Constable, were examined as CWs. The learned trial Judge on conclusion of trial having formed the opinion that prosecution has not been able to prove the case against the respondents beyond all reasonable doubts, acquitted them from the charge vide judgment dated 17.9.1995 which was further maintained by the High Court vide impugned judgment in a criminal appeal filed by the State against the acquittal of accused.
5. Learned counsel for the petitioner in support of this petition has contended as under:-
(1) The acquittal of the respondents was the result of misreading and non-reading of evidence which caused grave miscarriage of justice.
(2)The presumption that three accused being employed in Pak Army and posted at different stations, may not have participated in evidence, was unfounded as neither such plea was raised by the defence nor any evidence was brought on record to suggest that they have not participated in the occurrence or that they were not on leave on the fateful day.
(3) The assailants were nominated in the FIR with specific attribution and role assigned to each one of them, was proved beyond doubt through the independent evidence.
(4) In view of the explanation given by the prosecution, the delay in lodging the report and the autopsy of deceased was of no consequence, to have an adverse effect on the prosecution case.
(5) The contradiction of ocular account with medical evidence was also of no significance as in the circumstances of the case, the eye-witnesses were not expected to give each detail of injuries caused to the deceased and the view taken by the High Court in this behalf was perverse.
6. We have heard the learned counsel for the petitioner and also carefully perused the record with his assistance. The learned trial Court as well as the High Court having made detail scrutiny of the evidence concurrently held that prosecution evidence was not truthful and confidence inspiring to be relied upon. In view of the distance of about 18 kilometers of police station from the place of occurrence, the delay of 5/6 hours may not be fatal in the normal circumstances but as per medical evidence, deceased died within 2 hours of sustaining injuries, whereas according to the FIR as well as the evidence of eye-witnesses, deceased lost his breath at about 11.00 a.m. when they alongwith deceased in injured condition reached outside the police station. This contradiction would lead - to suggest that the witnesses have withheld the truth regarding the time of death to cover the delay in lodging the report and natural inference would be that report was lodged after due deliberation and consultation which would lead to the conclusion of false implication. The place of occurrence is situated outside "a abadi" and in the normal circumstances presence of witnesses at their dera may not be objectionable but in the light of the facts of the present case, a reasonable suspicion would arise in the mind that witnesses probably reached at the spot after happening the fateful occurrence and neither could see the actual occurrence nor have identified the assailants. The examination of the record in detail would not suggest that the concurrent findings of the two Courts regarding acquittal of respondents from the charge were suffering from a serious factual or legal infirmity or were perverse, calling for interference of this Court. Learned counsel for the petitioner has not been able to satisfy us that in the facts of present case, the acquittal of respondent offended the principle of safe administration of criminal justice and would not create double presumption of innocence in favour of accused. This Court is not supposed to interfere in the judgment of acquittal unless, very strong reasons appeared on record regarding the perversity of the judgment. The mere fact that witnesses were natural and occurrence took place in the day light would not be sufficient to believe or. disbelieve the evidence rather the real test is whether the witnesses were truthful and confidence inspiring in the peculiar facts of the case to be relied upon for conviction. In the present case, the prosecution evidence did not fulfill the above test to the satisfaction of the two Courts and we also do not find any good reason to differ with the High Court.
7. In the light of foregoing reasons, we do not find any substance in this petition, which is accordingly dismissed and leave is refused.