1. This criminal appeal has been filed by Abdul Hamid, complainant of F.I.R. No.396, dated 10-7-1994 registered under section 302/34, P.P.C. at police station Sardheri, in which Abdul. Qayyum, Misal Khan, Usman Ghani and Amir Nawaz, sons of Abdul Khaliq, were charged for the murder of Muhammad Sayyar. The appeal is against acquittal of the four accused by the Sessions Judge, Charsadda on 24-6-1996.
2. The learned counsel appearing for the petitioner contended that the judgment of acquittal is not based on the evidence and that the trial Judge for no good reason discarded the eye-witness account of Abdul Hamid complainant (P.W.8) and Iftikhar son of Abdul Hamid (P.W.9). He argued that the testimony of the eye-witnesses received sufficient corroboration from the recovery of blood, empties and klashnikov. It was next contended that the trial Judge had totally ignored the abscondance of the accused, which in itself is corroborative piece of evidence.
2. 3.After hearing the arguments of the learned counsel in limine and going through the record of the case, we found that the appeal does not deserve to be admitted to full hearing. The foundation of the prosecution case is the testimony of the two eye witnesses, the complainant who is the father of deceased Muhammad Sayyar, and Iftekhar, the brother of the deceased. The prosecution story has been narrated in the F.I.R. by P.W.8, which he reiterated in his testimony at the Court. According to it, on the night of occurrence at 11-45 p.m. on 9-7-1994 the complainant and his two sons, Muhammad Sayyar and Iftekhar, alongwith one Mukhtiar Ahmad son of Noor Rahman were present in their Tobacoo barn when the four accused armed with fire-arms came along and took Muhammad Sayyar by force. Muhammad Sayyar was taken to the fields of Misal Khan, one of the accused, where he was first given but blows and then fired at by all the accused, resulting in his death. The complainant alleged that he, Iftikhar and Mukhtiar had been chasing the accused but they could not go near the accused out of fear. Next, the complainant claimed that he retrieved the dead body from the scene of occurrence the next morning as he had been threatened by the accused with dire consequences if he took the dead body away. Motive for the offence was stated to be a land dispute between the parties. The third eye-witness Mukhtiar Ahmad was abandoned and the prosecution case hinged upon the testimony of Abdul Hamid and Iftekhar.
3. 4.The learned Sessions Judge disbelieved the testimony of these witnesses for a number of reasons. First, he found it very unnatural that the complainant, the father of the deceased, would allow the dead body to remain at the scene overnight just on account of the fear created by the threat of the accused. The learned Sessions Judge reasoned that the complainant could at least have gone to the police station, located 3 furlongs away, to report the crime to the police and get their help to retrieve the dead body, One may add that if the threat was effective at the moment of commission of the crime, why had the effect gone the next morning when the murder was reported to the police. It is difficult to disagree with the learned Trial Court that the behaviour of the complainant in reporting the offence to the Police does not ring bell of truth. The learned Sessions Judge found it very unusual that the father, the brother and cousin (Mukhtiar Ahmad) would chase the accused, who were forcibly taking the deceased, without either physical intervention or raising hue and cries. The learned Trial Judge correctly observed that the three eye-witnesses, closely related to the deceased, had given themselves the role of mere spectators. It was next observed that if the allegation of the eye-witnesses that they were kept at a distance by the accused at the time of murder is accepted. Their claim that they had seen all the accused firing at the deceased at midnight, without there being any evidence of electric light, cannot be believed. Discussing the contradiction regarding timing, the learned Sessions Judge observed that the report, according to the F.I.R., was made at 4.45 a.m. on 10-7-1994 but according to the statement of the complainant at the trial he claims to have taken the dead body to his house at about 6, 6.30, or 7 a.m. The prosecution version is that the dead body was first taken to the house and then to the police station. The learned Judge further found that the oral testimony was contradicted by the site plan Exh.P.B. in which the points at which the deceased was hit and where he expired was shown at a distance of 12 paces intervened by a water channel, whereas the ocular testimony alleged that the deceased fell and expired at the point where he was shot. From the discussion of the points mentioned above it was concluded, and rightly so, that it was an unwitnessed crime and after consultations and deliberations the four accused, all brothers inter se, nominated as accused.
4. Since the oral testimony, on which the entire prosecution case was based was discarded, the other pieces of evidence regarding recovery of empties and a brief abscondance would be of no avail to the prosecution case. From the above discussion, it follows that the order of acquittal was based on correct appreciation of evidence produced by the prosecution and does not warrant interference in appeal. It, thus, would not serve any purpose to admit the appeal to full hearing. For these reasons, the appeal was dismissed in limine on 19-6-1997.