' RUSTAM S. SIDHWA, J.--This is a petition filed by Hasan Din petitioner, seeking leave to appeal against the judgment of a Division Bench of the Lahore High Court dated 9-5-1988 accepting the joint appeal of Muhammad Jamil and Muhammad Rashid convicts/respondents and setting aside their convictions and sentences and dismissing the revision petition filed by Hasan Din petitioner for the enhancement of their sentences.
2. Muhammad Jamil and Muhammad Rashid respondents, were tried by an Additional Sessions Judge, Lahore under section 302/34 for the murder of one Muhammad Akram. The learned trial Judge, by his judgment dated 19-7-1986, convicted both the respondents under the said section and sentenced each of them to imprisonment for life with a fine of Rs, 5,000 each or in default thereof to undergo further imprisonment for two years each. Half of the fine, if realized, was ordered to be paid to the legal heirs of the deceased. On joint appeal filed by both the said convicts against their conviction and sentences and revision filed by Hasan Din, complainant, a Division Bench of the Lahore High Court accepted the appeal of the convicts and set aside their conviction and sentences and dismissed the revision petition filed by the complainant for the enhancement of their sentences. By the present petition, Hasan Din petitioner/complainant seeks leave to appeal against the said judgment.
3. On behalf of Hasan Din petitioner/complainant it is submitted that there was no reason for the learned Judge of the Lahore High Court to doubt the ocular testimony, which was supported by the doctor's evidence and recoveries. It is further submitted that the reasons advanced by the learned Judges for doubting the ocular testimony do not appeal to judicial consciences, keeping in view the principles of criminal law enunciated by this Court from time to time.
4. In disbelieving the ocular testimony furnished by Hasan Din PW. 5, Shakoor P.W. 6, and Muhammad Yousaf P.W. 8, the learned Judges were influenced by a number of factors and reasons. First, Shakoor and Yousaf PWs were residents of Ghaziabad, which was about 2-1/2 K.M.
Away from the place of occurrence. On the day of occurrence, they had gone to the house of Hasan Din P.W. 5 to inquire about his health, as he was suffering from urinary trouble, but both of them had not stated before the police in their statements under section 161, Cr.P.C. About this illness and neither had Hasan Din PW. 5 in his police statement referred to the fact that the above PWs had come to see him as he was not well. This improvement the learned Judges considered as recoiling on the justification for the presence of Shakoor and Muhammad Yousaf PWs. Second, that though there were residential flats near about the place of occurrence, wherein people were living, yet it was strange that none from the flats had come out in spite of alarm raised during the occurrence. Third, both Shakoor and Muhammad Yousaf PWs stated in cross-examination that they had no knowledge of the names and other particulars of the accused on the day of occurrence and some persons who had gathered at the place of occurrence had apprised them that Rasheed and Jamil had committed the crime, which admissions betrayed their absence, because if they had gone to the place of occurrence in the company of Hasan Din PW, then he would have disclosed to them the names and particulars of the assailants. Fourth, that though Hasan Din PW. 5 had left Shakoor and Muhammad Yousaf PWs at the spot, when he went to the police station to lodge a report, and Muhammad Amin Khan, S.I. Reached the place of occurrence at 7-00 p.m., yet the police statements of Shakoor and Muhammad Yousaf PWs were not recorded till 11-30 or 12-00 in the night, at the police station. If the said witnesses had been left at the spot by Hasan Din PW, their statements would not have been recorded at the police station so late in the night, which only indicated that they were set up witnesses. Fifth and last, that the story of the three eye-witnesses that they had set out in search of the deceased, when he did not return to his house till 6-30 p.m., was not susceptible of credence, because the deceased was not a young lad or a simpleton, but a mature man of 30/35 years with an unsavoury criminal record and his failure to return home by 6-30 p.m. Would not have put the inmates of his home in any fear.
5. The above grounds given by the learned Judges of the High Court for holding that the testimony of the eye-witnesses could not be accepted, do not appear to be perverse or ones which do not appeal to the judicial conscience. It is another matter that the learned Judges, on the same material, may have come to another finding, but we cannot interfere with the findings unless the reasons advanced for doubting the ocular testimony are perverse or highly erroneous. We, therefore, are not inclined to interfere in this case. This petition is dismissed.