FAZAL ILAHI KHAN, J.---These to Petitions bearing Nos.101 and 102 of 1996 by Mst. Reshman widow of Noorasab Khan deceased are directed against the judgment of the learned Lahore High Court, Rawalpindi Bench, Rawalpindi dated 5-5-1994 passed in Criminal Appeal No.157 of 1994 and Criminal Revision No. 126 of 1994.
2. Prosecution case set up in the report lodged by Mst. Reshman Bibi in brief is that her son Ajmal Pervaiz alias Humayun deceased was married to Mst. Hussan Ara alias Sumaira D/o Shireen Khan accused. That about 2 months prior to the occurrence on refusal of Ajmul Pervaiz to divorce his wife in spite of her repeated demands, she left his house; and started residing in the house of her parents. The relatives of Mst. Hussan Ara were extending threats to Ajmal Pervaiz because of his refusal to divorce her. On the day of occurrence at about 4 p.m., the deceased being a taxi driver, left his house in his taxi. Later Muhammad Moosa Tahir Butt P.W.9, who was on visiting terms to the complainant house, disclosed to the complainant that at about 7-00 p.m. He had seen Shireen Khan father, Abdul Fazil and Muhammad Sharif sitting with the deceased in his taxi. That at about 9-30.p.m. She came to know about the murder of her son. Accordingly Shircen Khan, Abdul. Fazil and Muhammad Sharif were charged for the murder for the motive stated above. Subsequently Javaid Iqbal, alleged paramour of (Mst. Hussan Ara alias Sumaira, and Sumaira were added in the list of the accused.
3.After completion of the investigation 'prosecution in support of its case examined 15 witnesses in all. Dr. Ateequr Reliman P. W.1, conducted the post--mortem examination on the deceased and found a fire arm entry oval shape on left side of his neck with slight blackening and its exit to the right ear extending down-ward. Muhammad Yousaf, Constable (P.W.2) took the dead body of the deceased to the mortuary. Javaid Iqbal (P.W.3) deposed-his having delivered the sealed parcel to Chemical Examiner which had been entrusted to him by Muhammad Khan ASI (P.W.4) who had kept it in the Malkliana. Ghulam Sarwar (P.W.5) who is a neighbour of the deceased stated about the strained relations between Mst. Sumatra and her family members with the deceased and that about threat extended by her that he (deceased) would not be spared. Muhammad Rafique ASI (P.W.7) incorporated the complaint received into a formal F. I. R. Exh.P. Mst. Nargis Jabeen (P. W.8) sister of the deceased deposed that before leaving the house the deceased had told her that he was going to the house of his in-laws as Mst. Sumatra had requested him to take her brother Muhammad Sharif (accused) to hospital as he was not feeling well. Muhammad a Moosa Tahir Butt (P.W.9)` stated that while he was present on the road-side he had noticed the deceased in his taxi passing through the road near the G.P.O. Rawalpindi and that the aforementioned 3 accused were sitting with him in the taxi. Mst. Reshman Bibi complainant supported her report. Shah Sarwar SIP (P.W.11), Mazhar Hussain Shah (P.W.12) Fida Hussain S.I. (P.W.13), who arrested the accused, Fida Hussain Shah S.I. Wail Cantt: (P.W.14) and Muhammad Akram Draftsman (P.W.15) are investigating/formal witnesses.
4. The accused when examined under section 342, Cr.P.C. Denied the charge. The allegations being false and baseless. Shireen Khan accused further stated that Muhammad Musa Tahir Butt P.W.; was on frequent visiting terms to the house of the deceased to which lie had objected as the deceased had grown up sisters which has annoyed him. It was, therefore, Musa Tahir Butt who wanted to get rid of him and as such in collusion with the mother of the deceased falsely involved the petitioner in the murder case.
5. The learned trial Judge relying on the prosecution evidence acquitted Mst. Sumatra and Javaid lqbal accused for lack of evidence. As far as Sheerin Khan Sharif Khan and Abdul Fazal accused are concerned it was field that there was sufficient circumstantial evidence on record which proved their guilt beyond any reasonable doubt. The circumstantial evidence pointed out by the learned trial Judge was the strained relations between the deceased and his wife and the pendency of her suit for dissolution of marriage, the statement of Muhammad Musa Butt P.W.9 treating it as last seen evidence and the statement of Mst. Nargis Jabeen P. W.3. Accordingly, they were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and fine of Rs.50.000 each which shall be payable to the heirs of the deceased as compensation or in default to undergo 6 months R.I. Each.
6. Accused/respondents challenged their conviction through Criminal Appeal No.157 of 1994 while Mst. Reshman Bibi complainant filed Criminal Revision Petition No.126 of 1994 for enhancement of sentence awarded to the convicts and for setting aside the order of acquittal of Javaid Iqbal and Mst. Sumaira. The learned High Court seized of both the matters by judgment dated 5-5-1996 accepted Cr. Appeal No.157 of 1994 and acquitted the accused/respondents and in consequence dismissed the revision petition. The complainant has filed both these petitions challenging the judgment and order of the learned High Court as stated above.
7. We have heard the learned counsel for the petitioner and have gone through the judgments of the Courts below and the record available before us. The prosecution case hinges other last seen evidence furnished by Muhammad Musa Tahir Butt P.W.9 which was mostly relied upon by the learned counsel for the petitioner before us. This P.W. Having seen the deceased in the company of the accused/respondents on 30-1-1993 at 6 p.m., while the deceased was fired upon at about 8/9 p.m. The learned High Court taking note of the considerable the which had elapsed between the last seen and the the of occurrence did not rely on such evidence. Even otherwise it did not accept the version of P.W.9, he being a well-wisher of the complainant party showing extra anxiety in saying that he had informed the complainant before the occurrence of his having seen the deceased in the company of the accused persons. The motive regarding seriousness of the relations between the spouses is self-contradictory with the statement of P.W.9 as it will be improbale that in such strained relations and during the pendency of a suit for dissolution of marriage, set up as motive the deceased could have given a 'lift' to the accused in his taxi. More damaging was the arrest of to sets of the accused for the occurrence i.e. The arrest of Mst.
"Sumatra and Javaid Iqbal, attributing illicit relations between the to which prompted both them to done away with the deceased, and the other set of the accused that father of Mst. Sumaria and her brother who were annoyed over the strained relations between Mst. Sumatra and her deceased husband. This by itself was sufficient to assume that the complainant did not know the actual culprits but brought the charge against both these sets of the accused on suspicion. The last seen evidence for basing conviction thereon as circumstantial evidence shall be incompatible with innocence of the accused. Such evidence shall be accepted with great caution and be scrutinised minutely for reaching a conclusion that no plausible conclusion can be drawn therefrom excepting guilt of the accused. It was, therefore, rightly concluded by the learned High Court that even if the statement of P.W.9 is accepted which is otherwise not confidence inspiring as no cause is shown for his presence near G.P.O. At 6-30 p.m. And further his association with the complainant party, the accused having been seen at 6-30 p.m. Before the occurrence which took place at 8-9 p.m. Not evidence of last seen of the type that it is incompatible with the innocence of the accused.
For the reason we find no infirmity in the conclusion reached by the learned High Court in excluding the possibility that the deceased might have been fired at by a person who wanted to rob the deceased of the vehicle and of the money and that the to sets of the accused have been charged on suspicion. No case has, therefore, been made out for grant of leave to appeal. Both the petitions are, therefore, dismissed.