' MUHAMMAD RAFIQ TARAR, J.---This appeal by Saif Ali is directed against the judgment of a learned Division Bench of the Lahore High Court dated 3-3-1990 whereby Criminal Appeal No, 313 of 1987 filed by the respondents against their conviction and sentence under section 302/34, P.P.C. Was allowed and they were acquitted of the charges.
2. The FIR. Version of the occurrence is that on 4-5-1985 at about 2-00 p.m. Haji Saif Ali first informant and Jan Muhammad son of Raj All were present on the metalled road leading to Arifwala in order to board a bus. Muhammad Iqbal deceased and his mother Mst. Rasoolan Bibi were also coming towards the road. Rashid Shah alias Sheeday Shah, Anayat Shah, armed with .12 bore guns, and Muhammad Anwar with a .12 bore pistol were present at some distance from the road. As soon as Muhammad Iqbal and Mst. Rasoolan reached near the road all the three threw a challenge on Muhammad Iqbal to get ready upon which he ran towards the first informant and Jan Muhammad P.W. To save his life. The accused persons chased him and during the course Sheeday Shah fired his .12 bore gun hitting him on the back of his head. Then Anayat Shah fired hitting his mouth and thereafter Muhammad Anwar on coming close fired at his neck. The first informant and Jan Muhammad stepped forward to save the life of Muhammad Iqbal upon which Sheeday Shah fired at Jan Muhammad causing injury on his upper lip breaking his two teeth. In the meantime Jan Muhammad son of Piran Ditta came there on his tractor-trolley and saw the occurrence. The accused persons then left the spot. Muhammad Iqbal succumbed to his injuries then and there.
Leaving his dead body with Mst. Rasoolan and Jan Muhammad son of Piran Ditta, the complainant took Jan Muhammad son of Raj All to Civil Hospital, Arifwala and got him admitted. Thereafter he went to Police Station Arifwala and reported the occurrence to S.H.O. At 2-00 p.m. Vide F.I.R. Exh. PA.
' Motive for the occurrence was that 11/12 years prior to the occurrence Sheeday Shah and others were tried for the murder of the father of Muhammad Iqbal deceased but were acquitted. 4/5 years before the occurrence Muhammad Iqbal fired at Sheeday Shah in order to avenge the murder of his father but the fire missed and thereafter on the intervention of the respectables there was a compromise and both the parties were living in peace. Sheeday Shah however continued harbouring grudge against the deceased.
3. After recording the F.I.R. The S.H.O. (Dilshad All P.W. 15) reached the spot and after preparing the necessary documents despatched the dead body to the mortuary for post-mortem examination.
He took some bloodstained earth from the spot and made it into a sealed parcel vide memo. Exh.?.
Since the accused were not available he obtained non-bailable warrants of arrest and handed them over to Muhammad Younis FC for service. All the three were declared proclaimed offenders.
Abbas Khan Inspector arrested them on 28-3-1986. At the time of arrest Rashid Shah was found in possession of unlicensed gun and three live cartridges which were made into a sealed parcel vide memo. Exh.PO. Anayat Shah was found in possession of gun and three live cartridges which were taken into possession vide memo. Exh.PP. Muhammad Anwar was found in possession of .12 bore pistol with 2 cartridges which were taken into possession vide memo. Exh.PQ. After the usual investigation the accused persons were challaned.
4. On 4-5-1985 at 4-00 p.m. Dr. Muhammad Sarwar Hussain, Medical Officer, Civil Hospital, Arifwala examined Jan Muhammad son of Raj All and found the following injuries on his person:
(1) A lecerated wound 0.75 c.m. x 0.75 c.m. On the front side of upper lip in the centre of upper lip circular wound. The both entrance and exit wounds were present and were blackish slightly.
(2) The front two teeth of upper jaw, both central incisers were missing. The gums were swollen and lacerated.
(3) The lateral inciser of right side of upper jaw was broken in between. The root was present in the cavity. Injury No,1 was simple and injuries Nos.2 and 3 were grievous. All the injuries were caused by fire-arm with 6-8 hours. On the same day at 5-00 p.m. The same doctor conducted the autopsy on the dead body of Muhammad Iqbal deceased and found the following injuries on it:
(1) A lacerated circular wound 1.5 c.m. In diameter present on the medial side of left eye on the root of nose, bleeding from the nose was still present. Probe went 8 c.m. Inside the wound. The edges were blackish in colour and slightly inverted.
(2) A lacerated circular wound 1 c.m. In diameter on the middle part of left side of neck superficial into 0.5 c.m. Deep. The edges were blackish.
(3) A lacerated circular wound 1 c.m. In diameter on the left side of head about 2 c.m. From pinna of left ear. The edges were slightly blackish but neither inverted nor everted.
(4) A lacerated wound 3.5 c.m. x 1 c.m. On the head on frontal part vertical. The edges were not black nor inverted and were bone deep.
(5) A lacerated wound 1 c.m. Circular in diameter on the top of head.
(6) A lacerated wound 1.5 c.m. In diameter on the occipital part of the head in the middle.
(7) A lacerated circular wound 1 c.m. On the central part of chin.
' The injury No,1 entered into the cranial cavity. The passage along the track of injury No,1 was opened. A piece of bullet was found inside the brain matter and was removed. The base of the skull looked fractured. The bullet was washed and sealed in a bottle and sent to the police. Injuries Nos.3, 4, 5 and 6 had not fractured the skull and had not entered the cranial cavity and no bullet or pellet was found in these injuries (wounds). The neck was completely dissected but no foreign body like bullet or pellet was found. The pleaurae were congested. The blood vessels were injured on the left side of neck. Oesophagus examined for any foreign body but no foreign body located in oesophagus and trachea.
' The injuries Nos.1, 2, 3, 4, 5, 6 and 7 were caused by fire-arm and could cause the death collectively. Injury No,1 which was penetrating the cranial cavity and had injured the brain could cause death in the ordinary course of nature. The duration between death and injuries was instantaneous and the duration between death and post-mortem examination was about two hours.
5. In support of its case the prosecution examined three eye-witnesses namely Saif All complainant, Jan Muhammad P.W.10 and Jan Muhammad P.W.11. It also relied on the evidence relating to abscondence and recovery of fire arms from the respondents.
6. The respondents pleaded not guilty to the charge and denied the prosecution allegtion against them. Sheeday Shah respondent when asked whether 10/12 years back he and his companions had murdered the father of Muhammad Iqbal deceased and about 2/4 years before the occurrence the deceased had fired at him to avenge his father's murder, stated as under:-- "I and my relatives were falsely involved in the murder case of father of Iqbal deceased and we were acquitted in that case. The rest of the facts mentioned above are incorrect."
' He maintained that he was falsely involved because of the murder of the father of Iqbal deceased, and P.Ws. Had appeared against him due to enmity. He also made a similar statement on oath under section 340(2) of the Cr.P.C. Anayat Shah respondent stated that he was falsely implicated as he had helped Sheeday Shah in the previous murder case of the father of Iqbal deceased. He also made a statement to the same effect on oath. Muhammad Anwar stated that he was falsely involved and P.Ws. Had deposed against him at the instance of the complainant and the police. He also made statement on oath professing innocence.
7. After examining the evidence on the record the learned trial Judge came to the conclusion that "the enmity resulting in murders and murderous attack is proved to be there and this could be a motive for the occurrence". Commenting upon the ocular evidence he observed that he did not see any justification to disbelieve Saif All complainant and Jan Muhammad son of Raj All P.W. Because of their relationship with the deceased and the enmity towards the accused. He also did not see any reason to discredit Jan Muhammad P.W. "although he made suppression in respect of his connections with Sardar Manzur Karim Dogar". In drawing this conclusion he was impressed by "the fact that the F.I.R. In this case was most prompt as the matter was reported at the P.S. At 3 p.m. i.e, within one hour of the occurrence". In view of his above observations he convicted and sentenced the respondents as mentioned above. On re-examining the record in appeal, the learned Judges of the High Court rejected the ocular account furnished by the three eye-witnesses and acquitted the respondents.
8. In this case leave to appeal was granted to consider the contention "whether the discrepancy about the distance from which the deceased was fired at and the recovery of a bullet instead of a pellet was sufficient in the circumstances of the case to reject the ocular evidence brought on the record and one of the witnesses (Jan Muhammad P.W. 10) being injured in the occurrence also".
9. Learned counsel reiterated the same submission before us and contended that discrepancy about the firing distance and recovery of bullet from the dead body instead of pellet was of not much consequence and could not form a basis for the rejection of the ocular evidence in toto.
10. After examining the above contention in the light of material available on the record we find that it was not the only circumstance which weighed with the learned Judges to reject the ocular evidence. While appraising the ocular evidence, the learned Judges observed that Haji Saif Ali complainant did not disclose the purpose of his visit to the place of occurrence and was, therefore, a chance witness. In cross-examination he had stated that the distance between the deceased and the assailants when they fired was 2/1-2 Karams but he had to admit that he had pointed out the place from where the assailants had fired at the deceased and the injured P.W. To the draftsman which according to the site plan was 24 Karams. From this they concluded that he had tried to bring the distance from 24 Karams to 2/1-2/3 Karams to bring his statement in line with the medical evidence according to which there was blackening on the wounds. It was also observed that he was uncle as well as father-in-law of the deceased and his brother was the complainant in the case registered against Sheeday Shah (respondent herein) for the murder of the father of the deceased. Referring to his statement that Jan Muhammad P.W. Son of Raj Ali was injured because he tried to intervene being the cousin of the deceased, the learned Judges concluded that if being cousin of the deceased was the only consideration with the assailants to fire, then he (the informant) should have been the first target being uncle and father-in-law of the deceased. It was also noted that in the F.I.R. He had stated that he got Jan Muhammad P.W. Admitted in the hospital and thereafter went to lodge report but at the trial he changed his stance and deposed that he took the injured to the hospital and left him there but both the statements were contradicted by the doctor who stated that Jan Muhammad was examined by him on the request of the police. It was further noted that he categorically stated that all the assailants were armed with .12 bore guns but according to the medical evidence a bullet was found lying in the head of the deceased.
Likewise Jan Muhammad P.W.10, son of Raj Ali, stated that he had noted the guns carried by the assailants and those were of .12 bore. According to the medical evidence he was examined at 4 p.m. And the duration of his injuries was from 7 to 8 hours. The learned Judges, therefore, concluded that if the opinion of the doctor regarding duration of injuries was correct then it would mean that he was not injured during the occurrence in which Iqbal deceased was killed.
Contention of the learned State counsel that the opinion of the doctor in such like matters was not conclusive was repelled on the ground that the same doctor had conducted the post-mortem examination on the dead body of Muhammad Iqbal at 5-00 p.m. The same day wherein according to him the time between the post-mortem and death was about two hours which would mean that the doctor was quite clear about duration of the injuries. It was also noted that he had explained only three injuries of the deceased whereas the doctor found seven wounds on the dead body. It was further observed that he also could not account for his presence at the spot. Jan Muhammad P.W.11 being unconnected with the complainant party, was taken as an independent witness by the trial Court. He admitted that he had appeared in two murders cases as P.W. And when further cross-examined he had to admit that he had been appearing as a P.W. In number of cases. The learned Judges held him to be a stock-cum-chance witness as he could not give any explanation of his presence at the spot. It was also noted that his claim that he had come to the spot on a tractor-trolley did not ring true because had it been so the injured would have been taken to the hospital on the tractor-trolley instead of a bus. We have further noted that he was involved in a number of cases including a theft case. He also admitted having made a false affidavit in a murder case "because of compromise".
' The recovery of guns from the respondents was held to be of no avail as no empty was recovered from the spot nor the guns were sent to the Forensic Science Laboratory for opinion if the same were in working condition or not. On these various reasons the learned Judges came to the conclusion that it would be unsafe to place reliance on the ocular testimony.
11. After examining the evidence on the record we find that the above observations have the support of evidence and there is no misreading or misconstruction. The High Court, on a detailed scrutiny of evidence have taken a view which could lawfully be taken. We have further noted that evidence relating to abscondence which was not attended to by the High Court, is also unsatisfactory. Muhammad Yunas F.C. (P.W. 7) who took the warrants for service, stated that the reports on the back of proclamations were written by some other person on his request as he himself was illiterate. He did not disclose the particulars of the scribe of the reports nor anybody was produced to say that the reports were in his hand. Even otherwise the abscondence by itself cannot advance the case of the prosecution. The conditions laid down by this Court in Ghulam Sikandar's case (PLD 1985 SC 11) for interference with the order of acquittal are not satisfied in this case.
For the foregoing reasons we do not see any reason to interfere with the finding recorded by the High Court. Consequently this appeal is dismissed.