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Criminal Petition No. 24‑R of 1982, decided on 31st October, 1983.

(On appeal from the judgment and order dated 27‑1‑1982 of the Lahore High Court passed in Criminal Appeals Nos. 1094 and 1046 of 1979 and Revision Petition No. 43 of 1980).

‑‑ Art. 185(3)‑Penal Code (XLV of 1860), S. 302/34‑Leave to appeal against acquittal‑Absence of explanation as to why eye‑witnesses were present at place of occurrence‑Omission to mention name of one of accused persons in F. I. R. Absence of food in deceased's stomach although said to have taken meals three hours before incident‑False implication of one of accused and to confirm participation of such accused in crime, fabrication of knife reacting on prosecution case as a whole when ocular testimony unequivocally refers to such accused's participation and his causing injuries to deceased‑Joining of two or three persons as suspects establishing that identification of real culprits was doubtful‑Deceased's brother (witness) in his further statement making clean, breast admission of fact that one of accused persons implicated after involving hire‑Held, there was no guarantee as to how testimony of such witness could be credible as regards others when it was established that he had falsely testified to participation of one accused‑Incident, therefore, was not at all witnessed by such witnesses in circumstances‑Leave to ,appeal against acquittal refused.

Abdul Hakeem Khan, Senior Advocate Supreme Court, instructed by Ch. Karam Elahie Badar, Advocate‑on‑Record for Petitioner.

Nemo for Respondents Nos., 1 to 4.

Akhtar Ali, Advocate‑on‑Record for the State.

Date of hearing : 31st October, 1983.

This petition arises from the judgment of the Lahore High Court, Lahore dated the 27th of January, 1982 whereby Ashiq Hussain, Khadim Hussain, Ahmad Khan and Safdar Hussain were acquitted. The petitioner seeks leave to appeal against their acquittal. They were all convicted under section 302 read with section 34, P. P. C., and sen tenced to life imprisonment and fine for the murder of Ghazanfar Ali.

The incident occurred at 11‑30 p.m. on the 25th of May, 1974 at the threshing floor of Nazakat Ali, the brother of the deceased. Nazakat Ali, the deceased, Allah Ditta and Muhammad Akram another brother of the deceased were asleep, when the others were awakened by some words uttered by the deceased. Nazakat Ali , who had a torch with him flashed it at the deceased when he and others saw Ashiq Hussain and Safdar Hussain inflicting injuries with a chhurri and a knife on the right side of the deceased while the other two were holding him by his hand and feet. The deceased suffered as many as eight (8) incised injuries. One blood‑stained chhurri was recovered at the instance of Ashiq Hussain six days after his arrest while Safdar Hussain produced a blood‑stained knife.

The motive for the crime was that the deceased had illicit relations with Mst. Irshad Begum, the mother of Ashiq Hussain, and it was to avenge that insult and to save their honour that he alongwith others belaboured and killed him.

The aforesaid version was given at the trial, but the name of Safdar Hussain was not mentioned in the F. I. R. and it transpired that during the investigation, be was implicated in the crime. However, the case of the complainant‑party was that he was falsely implicated by the police to spoil the case. This fact is apparent from the record. The trial Court, however, did not give any due weight to the false implication of Safdar Hussain and convicted all of them as aforestated.

The High Court summarised some of the essential doubtful points in the judgment, namely, the absence of explanation as to why Allah Ditta slept at the threshing floor on the fateful night ; the failure on the part of Nazakat Ali to mention Safdar Hussain in his F. I. R. ; the absence of food in the stomach of the deceased although he had taken a meal of loafs and curry at 8‑00 p.m. ; the deliberations before the lodging of the F. I. R. and the joining of Talib and Ishtiaque in the investigation as suspects. After duly considering the ocular testimony, the High Court reached the conclusion's that the presence of Allah Ditta was highly doubtful and that the presence of the deceased at the threshing floor was not for the reason given as he was not a partner in the cultivation of the land. In the context of all the above doubtful circumstances, the evidence of Nazakat Ali and Allah Ditta could not be accepted without corroboration, which was not available. The recoveries were also discarded.

It is urged by the learned counsel that the reasons given by the trial Court are weighty and should be accepted in preference to that of the High Court, but we see no substance in this contention. The fact that Safdar Hussain was falsely implicated, and what is more is that to confirm his participation a knife was also fabricated, reacts on the prosecution case as a whole when the ocular testimony unequivocally refers to his participation and his causing of injuries to the deceased. Two or three persons were joined as suspects, which obviously shows that the identity of the real culprits was, doubtful, and if that had not been so, then there was no reason for this exercise. Ali while deposing has made a clean breast admission of the fact that Safdar Hussain had been falsely implicated after involving him in his further statement. This being so there is no guarantee as to how his testimony could be credible as regards the others when it is established that he has falsely testified to the participation of Safdar Hussain. In the context of the other doubtful features in the case, which the High Court has taken notice of, we do not think that the incident was at all witnessed by these witnesses.

Accordingly, we find no merit in this petition, which .is hereby dismissed.

M. Z. M. Petition dismissed.

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