' This revision has been filed by Mst. Karam Bhari against the order of Sessions Judge, Sahiwal, dated 4-5-1974 acquitting Muhammad Saeed son of Muhammad Amin caste Rajput aged 20 years from the charge under section 302, P.P.C. For having murdered Ghulam Hassan aged 35/36 years with pistol-shots on the night between 1/2-9-1971 in the area of Mauza Kot Mahar Singh, District Sahiwal.
2. The facts which led to the detection of this crime in substance are that Muhammad Saeed, respondent, a college student, and Ghulam Hassan, deceased, happened to be first cousins. A few days before the occurrence, Ghulam Hassan, deceased, had forbidden the accused/ respondent from visiting his house as the latter was a reputed catamite and was a source of dishonour for the entire family. The respondent approached Muhammad Amir and Ghulam Mustafa for reconciliation and with their intervention Ghulam Hassan, deceased pardoned the respondent. It was stated that on 1-9-1971 just after Maghrib prayers the respondent went to the house of Ghulam Hassan, deceased, on a Suzuki motorcycle and in the presence of Mst. Karam Bhari, complainant (P.W.9) had asked him to accompany him to Pakpattan town just for recreation. He also advised the deceased to take his licensed revolver with him. Accordingly, the deceased having loaded his revolver handed that over to the respondent. Both of them left together for Pakpattan on a Suzuki motorcycle. Some time later, Munawar Sikandar (P.W.6) (son-in-law of Mst. Karam Bhari) and Haji Muhammad Saeed (P.W.7) (nephew of Mst. Karam Bhari) came to pay visit to Ghulam Hassan, deceased, and his family. They were told by Mst. Karam Bhari that Ghulam Hassan had gone with Muhammad Saeed, respondent to Pakpattan. They waited fur his return. At midnight they heard rattling noise of a motorcylce but Ghulam Hassan, deceased, did not come. On this Mst. Karam Bhari felt worried and sent both Munawar Sikandar and Haji Muhammad Saeed P.Ws. To the house of Muhammad Saeed, respondent, for enquiring as to the whereabouts of Ghulam Hassan. Both of them contacted the respondent for the purpose but the latter did not give any satisfactory reply and thus they brought him before Mst. Karam Bhari. After a good deal of hesitation the respondent confessed his guilt and told Mst. Karam Bhari in the presence of Munawar Sikandar and Haji Muhammad Saeed, P.Ws. That during the journey when they reached near bridge Bonga Shams, the deceased got down from the Suzuki and told the respondent that since he was tried, therefore, the respondent should drive the Suzuki for the remaining journey. At that time, the respondent changed his mind and fired seven times at Ghulam Hassan with the revolver and caused his instantaneous death. While making these revelations, he simultaneously took out the revolver P.5 (belonging to the deceased) and produced it before them. Mst. Karam Bhari awakened her Munshi to bring his tractor driven trolley. The respondent, then, took the witnesses to the place of occurrence and showed them the dead body of Ghulam Hassan lying there. The respondent was, then, caught hold of and taken to police station. There, Mst. Karam Bhari lodged report Exh. P.G. The respondent was arrested and the revolver P.5 produced before the police was secured in the presence of the witnesses and Suzuki motorcycle P.10 was recovered from the respondent the next day with its registration book and other papers. From the spot, empties P.6/1-7 were recovered and sealed into a parcel vide memo. Exh.P.C. Revolver P.5 and empties P.6/1-7 were sent to Fire-arms Expert for comparison who gave a positive report vide Exh.P.S. After the completion of investigation the case was challaned. After inquiry under the old procedure the case was committed for trial to the Court' of Sessions, by Magistrate First Class, Pakpattan, vide commitment order, dated 28-3- 1973.
3.. At the trial the prosecution examined as many as 11 witnesses in all. The prosecution relied on circumstantial evidence comprising evidence of "last seen" furnished by Mst. Karam Bhari (P.W.9), mother of the deceased; extra-judicial confession of the respondent deposed to by Mst. Karam Bhari (P.W.9), Munawar Sikandar (P.W.6), sister's husband If the deceased, and Haji Muhammad Saeed (P.W.7), the real maternal-uncle's son of the deceased; and the evidence of recovery of dead body of Ghulam Hassan, deceased, at the pointation of the respondent in the presence of aforementioned witnesses; the evidence of motive given by Muhammad Amir (P.W.8) and also the evidence of Fire-arms Expert provided by Mr. A.H. Bajwa (P.W.11) who found the empties P.6/1-7 wedded with revolver P.5 produced by the respondent, which in fact belonged to the deceased.
Muhammad Eshaq, prosecution-witness, in whose land the dead body of Ghulam Hassan, deceased, was found, was however, given up.
4. When examined under section 342, Cr.P.C.,the respondentdenied the allegations entirely. He denied to have pointed out the dead body or produced any revolver before the witnesses. He stated that the dead body was found lying in the lands of Muhammad Eshaq on whose information the people went there and revolver P.5 was found lying there. He stated that the case was concocted against him due to the strained relations between his family and the deceased's family because the sister of the deceased married to his elder brother was desetted by the latter.
5. The death of Ghulam Hassan, deceased, by pistol-shots injuries at the relevant time is not at all disputed. The only dispute is, whether it was the respondent, who committed the murder of Ghulam Hassan.
6. It may be pointed out that there is no ocular or direct evidence available in this case, and it mainly hinges on circumstantial evidence, as indicated earlier.
7 Before discussing the merits it should be borne in mind that a case based on circumstantial evidence should succeed against an accused only if it excludes all possible hypothesis of innocence and leads to the only conclusion that it was the accused and none else who had committed the crime. In dealing with a revision against acquittal the golden rule laid down in Sheikh Abdul Karim's case PLD 1950 Lah. 439 which received the approval of Federal Court of Pakistan in Khairdee Khan v. The Crown PLD 1953 FC 223 should serve as the guiding principle. I may here reproduce two passages of the aforesaid judgment of the Lahore High Court, delivered by the then Chief Justice Mr. Justice Muhammad Munir, with advantage which run as under:- "The Advocate must well-know, as every counsel practising in this Court should, how petitions for revision of orders of acquittal in murder cases are treated by this Court, and what chances counsel has in such petitions to obtain a retrial, because no order of acquittal can be converted into an order of conviction in revision. I can say from my eight years' experience at the Bench and eighteen years' experience at the Bar, that I have not known of a single instance in which a petition for revision of the order of acquittal in a murder case ever succeeded in the absence of an appeal by the accused on his being convicted of a minor offence Needless to say that where the Government is not interested and for that reason it has not appealed, this Court will order a retrial only if the case is of such a singularly exceptional character that, unless a retrial is ordered a grave and irremediable injustice must be the result, and such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure or where the acquittal is based on a view of evidence which no reasonable judicial officer anxious to do justice, could possibly take."
(underlining is mine).
8. I have heard the learned counsel for the petitioner as well as for the respondents and also perused the record with their assistance.
9As regards the evidence of last seen, Mst. Karam Bhari (P.W.9) stated that her son Ghulam Hassan and the respondent left her house together at evening time few hours before the occurrence. She is the solitary witness on this point. She being mother of the deceased cannot be given the credit of an impartial witness. It is on record that the deceased disliked the visits of the respondent to his house on account of his reputation of being a catamite. Muhammad Amir (P.W.) is stated to have brought about a compromise between the two, yet it does not occur reasonable that the deceased would like to move about in the company of the respondent who had a reputation of a catamite all around. There is nothing on record to show as to why the deceased left in the late hours of the day for Pakpattan in the company of the respondent. It may be noted that the respondent was of 16 years' age at the time of occurrence and the deceased was 36 years old and their disparity of ages does not suggest that they could be fast friends. Their going out on a pleasure trip, that too, late in the day is highly intriguing. The learned trial Judge in my view was right in discarding this piece of evidence.
9. Next comes the evidence of extra-judicial confession which has been furnished by Mst. Karam Bhari, mother of the deceased, Munawar Sikandar and Haji Muhammad Saeed who are also close relatives of the deceased, as observed earlier. It may be noted that Munawar Sikandar lived 40 miles away while Haji Muhammad Saeed lived at a distance of 30 miles from the house of Mst.
Karam Bhari. They have not given any sound reason for their visit to the house of the complainant on the night of occurrence. Out of sheer chance, they happened to be at the house of the deceased and at the asking of Mst. Karam Bhari they went to the house of the respondent to enquire the whereabouts of the deceased from him. When he did not give satisfactory reply, he was brought to Mst. Karam Bhari where he made extra-judicial confession and also produced the revolver P.5. These witnesses have stated that they visited the house of the respondent and brought him to the house of Mst. Karam Bhari without even informing the parents of the respondent. It is not believable that the respondent, a teenager, having murdered Ghulam Hassan would choose to accompany them silently to the house of the deceased without informing any person of his family at the dead of night. The slightest experience of human psychology tells us that a boy of 16 years would have cried hoarse calling his parents to shield him instead of accompanying the relatives of the deceased to the mother of the deceased at odd hour of night.
Again, the witnesses have contradicted each other while deposing about the words used by the respondent in making the confession. For example, Munawar Sikandar (P.W.6) stated that the respondent had confessed his guilt by saying,-- "When he (the respondent) was driving the Suzuki he got tired and asked Ghulam Hassan to drive the same and when they got down, he developed bad intention and fired seven times with his revolver at Ghulam Hassan and killed him."
' Muhammad Saeed (P.W.7) deposed just the reverse as he stated,- "When he and Ghulam Hassan had reached near Pul Bunga Shams and then the deceased had said that he was tired and that the accused should drive the Suzuki. The accused stated that both of them got down the Suzuki and he developed bad intention and he fired at Ghulam Hassan seven times and caused his death."
The presence of these witnesses in the house of the deceased on the night of occurrence is stated to be by chance and looks highly improbable. The chances mostly lead to fiction. It is a time honoured legal concept that "extra-judicial confession" is regarded as weak evidence. In the instant case the depositions of witnesses about this confession are divergent and irreconcilable.
Learned trial Court acting with utmost care and circumspection had rightly rejected this evidence and I do not find any logical basis to differ with his finding.
11. Apart from the above discussion, there are various other circumstances which remain unexplained, for example; the deceased used to abhor the visits of the respondent to his house on account of his having reputation of a catamite, then what prompted him to accompany him at night time? Why should he hand over his licensed revolver to the respondent after loading it before they left the house? This was not a heavy weapon like gun etc. Which would have hampered him while driving the motorcycle. According to prosecution, the occurrence took place on the back journey. Why the respondent did not attack him during the up-journey? It is not known what particular incident created a situation that the respondent got flared up and killed the deceased and pumped all the bullets available in the revolver in his body? These are a few big question marks which have remained unanswered by the prosecution. In this situation, the evidence on record does not provide judicial satisfaction, that it was the respcndent alone and none else, who had killed Ghulam Hassan, deceased.
12. For the foregoing reasons I am of the considered 'opinion that the acquittal of the respondent was quite justified and it cannot be said that the view of evidence taken by the learned trial Court, is the I one, which a reasonable judicial officer anxious to do justice would not possibly have taken.
The result is that this revision petition fails and is, therefore, dismissed.