ZIA MAHMOOD MIRZA, J.---This is a petition by the complainant Imran Hussain seeking leave to appeal against the judgment of Lahore High Court dated 9-4-1994 passed in Murder Reference No.485 of 1991 and Criminal Appeal No.1115 of 1991 answering the Murder Reference in the negative and allowing the appeal of the accused-respondents Nos.l and 2 and acquitting them of charge under section 302/34, P.P.C.
2. Facts necessary for the disposal of this petition, briefly stated, are that a case under section 302/34, P.P.C. Was registered against Amar Arshad and Zia--ud-Din respondents Nos.l and 2 herein for committing the murder of the petitioner's brother Irfan Hussain. The matter was reported to the police by the petitioner alleging that the dqceased had friendly relations with both the accused who had recently opened a TV/VCR shop and had borrowed Rs.50,000 from the deceased to run their business with a promise to pay him his share of the profit. It was further alleged that the accused used to consult the deceased whenever they made any purchases for their business.
According to the petitioner, on 26-4-1991 at about noon-the, he alongwith Tariq Masood P.W. Was present in the house of the deceased when both the accused came there and told the deceased that a .V.C.R. Was available for sale and that he should accompany them. The deceased and the accused left the house on a Honda motorcycle. After about an hour, Muhammad Khalid P. W.
Informed the petitioner that he "alongwith Kamran Hussain (another brother of the petitioner) had gone to the grave of grandmother in the graveyard at Go1ra Road where they heard an alarm raised by the deceased and saw the accused-respondents dragging the deceased towards the graveyard. They rushed to rescue the deceased but before they could reach the spot, the accused Amar Arshad took out a pistol and fired at the deceased hitting him on the left side of the chest.
The deceased at that the was held by Zia-ud-Din accused. The deceased succumbed to the injuries at the spot. The motive alleged was that both the accused wanted to grab the money they had borrowed from the deceased.
3. The accused were arrested on 3-5-1991. During the course of investigation, Amar Arshad got recovered a revolver, four live cartridges and a crime empty and Zia-ud-Din accused led to the recovery of a revolver and 5 cartridges which were all taken into possession by the police. It may be stated that as per the report of the Forensic Science Laboratory, the empty had been fired from the revolver recovered at the instance of Amar Arshad respondent. It may also be stated that the Doctor who conducted the post-mortem examination of the deceased had found a bullet in his body which he had recovered and handed over to the police but it was not sent to the Forensic Science Laboratory.
4. After usual investigation, both the accused were put on trial before the Additional Sessions Judge, Jhang who relying upon the ocular account of the occurrence furnished by Kamran Hussain P.W.9 (a brother of the deceased) and Muhammad Khalid P.W 10, the evidence of motive and the recoveries coupled with the report of Forensic Science Laboratory Exh.P.J. And the medical evidence, convicted both the respondents under section 302/34, P.P.C., awarded death penalty to Amar Arshad respondent with a fine of Rs.50,000 and sentenced Zia-ud-Din respondent to life imprisonment and a fine of Rs.50,000 with a direction that half of the amount of fine shall be paid to the heirs of the deceased as compensation. This was vide judgment dated 24-10-1991.
5. Both the convicts preferred an appeal in the High Court and a reference from the learned Trial Judge was also received for confirmation of death sentence awarded to respondent No. 1. Learned Judges of the High Court on re--appraisal of the evidence doubted the presence of the eye- witnesses at the place of occurrence at the relevant the for more than one reason. It was observed by the learned Judges that on the day of occurrence, a daughter of an uncle of the complainant was getting married and it was not believable that the complainant and other P.Ws. Would not attend that marriage. Learned Judges did not accept the prosecution version that the said marriage was attended only by the father of the complainant while other members of the complainant party stayed away. Learned Judges further observed that Kamran and Khalid P.Ws.
Claimed that they just happened to go to the graveyard to offer 'Fatiha' at the grave of a paternal grandmother and Sultan when the deceased was also brought there and done to death. This, according to the learned Judges, "was to much of a coincidence which is hard to digest", particularly when it appears from the record that "the day of occurrence was the only day when the to eye-witnesses had decided to perform this ritual". Learned Judges further observed that if the respondents had taken -away the deceased from his house, they must have planned to kill him secretly but then it is not understandable as to why they chose to kill him in broad daylight and that, to, in the view of the eye--witnesses who claimed that -they had reached at the place of occurrence on hearing the alarm raised by the deceased. The learned Judges also found it difficult to comprehend as to why Khalid P.W. Who was sent to report the occurrence went to the complainant instead of rushing to the police post which was not far away from the place of occurrence. All these facts, according to the learned Judges, "cast rather serious doubts about the presence of the to eye--witnesses at the place of occurrence, at the relevant the". Learned Judges also observed that the prosecution story was rendered further doubtful by the fact that the bullet recovered from inside the dead body of the deceased was not sent to the Forensic Science Laboratory. The factum of delay in lodging the F.I.R. Together with the non-recovery of blood- stained earth from the place of occurrence was also held to have further confounded the prosecution case. The learned Judges finally held that from the facts noted by them, "the possibility of the occurrence having gone unwitnessed and the assailants having escaped unidentified could not be ruled out. Such doubts having emerged about the prosecution case, we would find it unsafe to base any conviction on the strength of such a prosecution testimony". Both the respondents were accordingly acquitted of the charge of murder vide the impugned judgment.
6. Learned counsel appearing in support of this petition has contended that the prosecution case is supported by independent eye-witnesses who though related to the deceased had no motive to falsely implicate the respondents and their evidence is also fully corroborated by medical evidence, the recoveries of revolver and crime empty and the report of Forensic Science Laboratory according to which the empty was fired from the revolver recovered at the instance of respondent No. 1. It was further submitted by the learned counsel that the occurrence took place in broad daylight and there was thus no question of mistaken identity. Regarding the delay in lodging the F.I.R., learned counsel sought to argue that the delay per se was not fatal to the prosecution case which was otherwise supported by the ocular testimony of independent witnesses. In the submission at the learned counsel, prosecution case was proved beyond any shadow of doubt and the High Court committed grave error in acquitting the respondents on the basis of surmises and conjectures.
7. We have given anxious consideration to the submissions made by the learned counsel but have not felt persuaded to interfere with the impugned judgment of the High Court which in our view is based on sound and cogent reasons, As noted above, learned Judges of the High Court have given good reasons for holding that the presence of the eye-witnesses at the place of occurrence at the relevant the was doubtful. We also find that other circumstance of course emerging from the evidence on the record which the learned Judges, have particularly noticed in their judgment viz. The delay in the F.I.R., absence of any explanation for non-recovery of blood-stained editing num the place of occurrence and the fact that bullet recovered from the dead body of the deceased was not sent to the Forensic Science Laboratory were sufficient to cast serious doubts on the prosecution case. It is a settled proposition that the judgment of acquittal is not to be interfered with unless this Court finds that the appraisal, made and the conclusions/inferences drawn by the High Court are perverse or in flagrant violation of any principle of law laid down by this Court. No such violation appears to have been made in this case. In fact, the impugned judgment of the High Court appears to be in. Accord with law and the principles governing the safe administration of criminal justice. In the circumstances, no interference is called for. Leave is accordingly refused and the petition dismissed.