1. MUKHTAR AHMED JUNEJO, J.---Respondent Ghulam Murtaza was tried in the Court of Sessions Judge, Muzaffargarh on the charge of having murdered Naseer Ahmed by giving him "Churi" blows in a bus at "Chungi" No:4, Shah Jamal Road in Mauza Lutkaran, District Muzaffargarh on 11-5-1989 at 7-00 a.m. At conclusion of the trial the respondent was on 29-10-1989 convicted for the offence punishable under section 302, P.P.C. And was sentenced to death and to pay fine of Rs.1,000 or to suffer R.I. For one month. He was also ordered to pay a sum of Rs.10,000 as compensation to the legal heirs of the deceased, or to suffer R.I. For six months more.
2. Respondent Ghulam Murtaza challenged his conviction and sentence through Criminal Appeal No.253 of 1989 in the Lahore High Court, where reference was also made for confirmation of the death sentence. Under the impugned judgment, a learned Division Bench of the Lahore High Court acquitted the respondent and set aside his conviction and sentence.
3. Thereupon appellant Qadeer Ahmed who was complainant in the case, sought leave to appeal against the acquittal of the respondent. Leave to appeal was granted to examine the reasons given by the High Court for acquitting the respondent.
4. Mr. Khadim Nadeem Malik, learned counsel for the appellant/complainant argued that delay in lodging of F.I.R. Was explained and that there was ocular evidence of Qadeer Ahmed and Abdul Rasheed and that an application moved by widow of the deceased and her children, under Qisas and Diyat Ordinance, should have been accepted by the Appellate Court and if parents of the deceased were not prepared for such compounding of offence, their share of Diyat should have been deposited in Court.
5. The contentions raised by the learned counsel for the appellant were controverted by Mr. M. Munir Bhatti, learned counsel for respondent Ghulam Murtaza. Ch. Muhammad Akram, Advocate appeared for the State but he did not go in line with the learned counsel for the appellant.
6. There are inherent defects in the prosecution case. In the first instance, it is unthinkable that a single person would venture to kill the person targeted by him, who was accompanied by his brother Qadeer Ahmed and his relative Abdul Rasheed. Qadeer Ahmed and Abdul Rasheed have nowhere stated that Abdul Majeed was also with them in the bus, where the incident took place.
7. Abdul Majeed is said to have taken injured Nasir Ahmed to District HQ Hospital, Muzaffargarh and then to Nishtar Hospital, Multan where the injured died on 13-5-1989. Abdul Majeed was examined by prosecution as P.W.
6. Surprisingly no question was put to him to show if he was accompanying the victim during the bus journey or if he took injured Nasir Ahmed to a hospital. The medical evidence shows that it was Abdul Majeed who brought the injured to the hospital. There is no explanation, as to, why Abdul Qadeer, brother of injured Nasir Ahmed, did not take the latter to the hospital if the incident occurred in his presence. There is no explanation, ' as to, why the F.I.R. Was lodged on the second day of the incident at 9-05 a.m. There is nothing on record to show that complainant Qadeer Ahmed went with injured Nasir Ahmed to the to hospitals and had he been present in the bus at the the of the incident, he would have lodged the report on the day of incident. While dealing with ocular evidence the High Court has taken the following view:-- "Then the ocular account rendered by both the eye-witnesses namely Qadeer Ahmed (P.W.7) and Abdul Rashid (P.W.8) has been found not worth to be relied upon then certainly the medical evidence and the evidence of recovery of blood-stained Chhurri are of no value. What it appears is that after the occurrence it was Abdul Majeed P.W.6 who reached the place of occurrence and took the deceased to the hospital and the remaining witnesses came afterward."
8. In respect of the motive the High Court has taken the following view:-- "...So far as motive is concerned that finds mention in the F.I.R., that Mst. Robina wife of the deceased and Mst. Fardaus wife of the appellant are real sisters inter se, and wife of the deceased was elder and Fardaus was marri6d to the appellant only 1-1/2 months earlier. There may be some differences between the appellant and his wife but it is not a sound ground that it was the deceased who was putting hurdles in the reconciliation of the spouses. Such like differences did exist in every house but these are not so grave and serious that one brother-in-law takes the life of another when his wife is not being sent to him by his in-laws."
9. There is also mention in the impugned judgment about Mst. Robina Naz widow of the deceased, having appeared, with her minor children, before the High Court where she made statement that, she had compromised the matter with the respondent whom she had forgiven and that she and her minor children had been compensated by the respondent for murder of her husband and that she had waived her right of Qisas and had forgiven the respondent. The High Court could not accept compounding of the offence because parents of the deceased were not agreeable to it and they had not waived their right of Qisas. Be that as it may, this does not create any situation for conviction of the respondent and it does not add anything substantial to the material on the basis of which the conviction was based.
10. The High Court found that the prosecution had failed to bring home the charge against the respondent and could not prove presence of eye-witnesses Qadeer Ahmed and Abdul Rasheed at the place of occurrence beyond reasonable doubt and we have no reasons to take a contrary view.
11. In our view the acquittal of the respondent by the High Court was based on cogent and valid grounds and no case is made out for interference with the judgment of acquittal. Consequently this appeal stands dismissed.