' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal is from the judgment of a learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi, acquitting, in appeal, Najeeb Ali, respondent No,1, who had been convicted by the learned Additional Sessions Judge, Jhelum, for an offence under section 302, P.P.C. And sentenced to imprisonment for life, a fine of Rs,10,000 or in default thereof to undergo rigorous imprisonment for two years and also to pay compensation amounting to Rs,10,000 to the legal heirs of the deceased.
2. Muhammad Yaseen son of Fazal Karim deceased is alleged to have developed illicit liaison with the wife of Abdur Rashid who is brother of Najeeb All respondent herein. Fazal Karim deceased out of fear sent his son Muhammad Yaseen to Musqat for earning his livelihood. The respondent and his father Walayat Khan were nursing a grudge against the deceased and, in consequence, the respondent upon exhortation of his father fired at the deceased and done him to death. The occurrence, which had taken place on 7-11-1976 at noon time, was stated to have been witnessed, apart from Muhammad Sadiq, complainant (P.W.8), by Ghulam Abbas (P.W.9) who were ploughing their respective fields near the field of Fazal Karim where the latter was busy in husbandry work.
3. The report of the occurrence was taken down at 4-00 p.m. By Mian Khan, A.S.I. (P.W.11) in the shape of Murasila at Bus Stand, Beroti where he was on patrol duty. He prepared the Injury Sheet Exh.P.S. And Inquest Report Exh. P.C. And despatched the dead body for post-mortem examination.
After recording the statements of Ghulam Abbas and Khalil Ahmed P.Ws., he inspected the spot and secured blood-stained earth and sealed it into a parcel vide memo. Exh.P.H. In the meantime, on 8-11-1976, Abdul Majid Kayani, who was then S.H.O., Police Station, Dina, took into possession clothes of the deceased which had been sent to him from the hospital. He arrested Walayat co- accused of respondent No,1 on 12-11-1976 and got the site-plans Exh. P.D. And Exh. P.D/1 prepared.
Lastly, he got Najeeb Ali respondent declared a proclaimed offender. Walayat Khan father and co- accused of respondent No,1 was placed on trial but was acquitted in an earlier trial.
4. Respondent No,1 was arrested on 5-6-1988. As stated earlier, he was placed on trial, convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs,10,000 or in default thereof to undergo further rigorous imprisonment of two years, He was further directed to pay to the legal heirs of the deceased amounting to Rs,10,000 or in default to suffer simple imprisonment for six months.
5. The learned Additional Sessions Judge did not believe the prosecution evidence as to the motive.
He relied upon the evidence on the main incident furnished by the two eye-witnesses despite their close relationship with the deceased because, according to him, their evidence was corroborated by recovery of crime empty from the spot and medical evidence which showed an irregular wound on the left parietal area with charred merging due to which the skull bone had been fractured and brain matter was lying outside the wound.
6. On appeal, the learned Judge in Chamber gave benefit of doubt to the respondent for the following reasons:--
(i) That the two witnesses of the occurrence had contradicted themselves while deposing at the trial of the respondent in juxtaposition to their testimony at the earlier trial of Walayat Khan.
(ii) That at the respondent's trial the two eye-witnesses had improved upon their evidence recorded at the earlier trial. That the aforesaid improvements were not due to lapse of time but were made mala fide so as to bring the version of occurrence narrated by them in conformity with medical evidence.
(iv)That the occurrence had taken place at about sunrise time and not at noon as testified to by the eye-witnesses with a view to procuring the attendance of witnesses at the spot.
' As to the glaring contradictions between the earlier trial and the latter one, the learned Judge in Chamber noticed that Muhammad Sadiq (P.W.8) in his cross-examination stated that he had gone to plough his land at 9-00 a.m. Sometime after sunrise time but he did not remember if he had stated in his complaint that he had gone for ploughing at sunrise time at 9-00 a.m. And further that when he reached his land at that very time the sun had risen. Again the learned Judge made reference to the improvements in the stance of Muhammad Sadiq (P.W.8) on the point of distance from which the respondent had fired at the deceased and noted that at the earlier trial he had given the distance of firing as 2/1-2/3 Karmas but at the latter trial he had reduced it to 1/1-2 yards to bring it in conformity with the medical evidence wherein charring marks had been detected by the doctor on Injury No,1. The learned Judge had then pointed out similar improvements in the evidence of Ghulam Abbas (P.W.9) both on the question of time of the occurrence and the distance of firing. In this context, the learned Judge in Chamber referred to the contents of the stomach and large intestine which, according to him, in normal course of events do count to the fact that the occurrence had taken place in the early hours of the morning and not at noon time and that as such the possibility could not be ruled out that the occurrence had taken place in the morning at about sunrise time which fact was twisted later on in order to procure the attendance of the witnesses at the spot.
7. As to the evidence of motive, the learned Judge in Chamber upheld the criticism made thereon by the learned trial Judge and so was the alleged recovery of the crime empty from the spot, in that, it was of no avail as no weapon of offence had been recovered from the respondent.
8. As to the eye-witnesses, both of them are closely related to the deceased. The fact that the prosecution was not able to produce independent witnesses naturally would influence the learned Judge in Chamber to doubt the veracity of the eye-witnesses.
9. As to the abscondence, it was observed by the learned Judge that it could be of no avail to the prosecution when the ocular account was full of contradictions, omissions and improvements. He was also of the considered view that young and inexperienced accused make themselves scarce on finding themselves named for the murders,
10. Sheikh Khizar Hayat, learned counsel for the petitioner, argued that the contradictions/improvements alluded to by the High Court were minor and that, in any case, the fate of the criminal case, does not depend on such vague improvements and inconsequential discrepancies which usually do occur in the statements of truthful witnesses after about 14 years of the occurrence; that the judgment of acquittal was perverse and has resulted in miscarriage of justice particularly when the weighty corroboration in the shape of about 15 years long abscondence was just been ignored for petty reasons.
11. We have given our careful consideration to the above arguments of the petitioner's counsel .
There are certain features about the prosecution case which are not explained satisfactorily. As pointed out earlier, it appears rather extraordinary that no witness other than the two closely related was attracted towards the spot on a 'Lalkara' raised by the father and acquitted accused of the respondent, although the incident took place in broad daylight in a close vicinity of the village.
The learned counsel tried to explain this jarring feature in the present case by suggesting that in serious incidents like this disinterested people keep away rather than to embroil themselves and incur the animosity of one of the parties. While this unfortunate tendency cannot be altogether discounted, this cannot be accepted in all cases as a valid explanation for the prosecution's failure to produce the best evidence. It really depends upon the facts of each case. Having regard to the peculiar features of this case, in our opinion, the learned Judge was justified to be sceptical about the veracity of the eye-witnesses. Then it cannot be seriously disputed that the prosecution had tried to improve upon the case with regard to the incident of the murder by setting up a motive which could not be substantiated by any evidence. Again the evidence of both the star witnesses of the prosecution at the earlier trial had been improved upon at the latter one on the point of distance of firing and the evidence being contradictory as to the time of occurrence with a view to explaining away the charring on Injury No,1 on the person of the deceased. We share the view of the learned Judge in Chamber that the contents of the stomach would affirm the view that the occurrence had taken place either before or at the time of sunrise and the time of occurrence was advanced at 9-00 a.m. With a view to procuring the presence of the two witnesses at the spot.
12. There remains the evidence of abscondence. But in the absence of any other evidence against him, abscondence by itself, as held in the series of judgments of this Court, would be of no avail to the prosecution. At the time of occurrence, the respondent was hardly aged about eighteen. It is, therefore, obvious that being young and inexperienced he may as well have made himself scarce no sooner he found that he was named for the murder of Fazal Karim deceased.
13. Because of the above features in the prosecution case, it is impossible to contend that the conclusion reached by the learned Judge of the High Court was in any way perverse or fanciful.
This whole criticism of the learned counsel for the petitioner is directed against the appreciation of evidence in relation to the general circumstances of the incident. This is scarcely a ground for interference by this Court in its special jurisdiction. The petition is accordingly dismissed.
Leave refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.