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Criminal Petition for Leave to Appeal No. 82/R of 1985, decided on 29th January, 1986.

(On appeal from the Judgment and Order of Peshawar High Court dated 29‑4‑1985, in Criminal Appeal No.27 of 1983).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 417 Appeal against acquittal‑‑Trial Court who had opportunity to hear witnesses and take into consideration all other circumstances acquitting accused on ground that first information was lodged with delay, brother of complainant who was present at scene of offence was not produced as eye‑witness and that other circumstances did not support ocular testimony of complainant‑‑Leave refused.

Imtiaz M. Khan, Advocate‑on‑Record for Petitioner.

Bashirullah Khan, Assistant Advocate‑General (N.‑W.F.P.) and M.. Shakirullah Jan, Advocate‑on‑Record for Respondent No.3.

Date of hearing: 29th January, 1986.

Petitioner Mst. Karam Jan, widow of Alif Din deceased seeks leave to appeal against the judgment and order of the Peshawar High Court, dated 29‑4‑1985 whereby, the State appeal and revision petition of the petitioner against the acquittal of respondents Nos.l and 2 were dismissed.

2. Prosecution story is that on 9‑8‑1981 at about Deegar time the deceased Alif Din was returning from the shop of village carpenter. He saw buffalo of Muhammad Akram accused /respondent No.l damaging his maize crop. The deceased called out Muhammad Akram and made a complaint about this; on this an altercation took place between them. Muhammad Akram and Ghulam Haider accused, respondents attacked the deceased with sticks. Ghulam Haider also threw stones at the deceased who was injured and fell on ground. Mst. Karam Jan and her brother raised alarm, which attracted the co‑villagers. The deceased was unconscious and arrangements were being made for taking him to the Police Station but he succumbed to his injuries at about Qaza Shamvela. The dead body was taken to the Police Station on cot and complainant lodged the report.

3. Dr. Noor Wahab Shah conducted the post‑mortem examination on the dead body of Alif Din deceased and he found two lacerated wounds on the left side of posterior part of the head and bruises on forehead right shoulder and right side chest. The injuries in the opinion of the doctor, were caused by blunt weapon and death of the deceased was due to shock and hamorrhage due to fracture of the scalp injury to brain.

4. The learned trial Judge observed in his judgment, dated 22‑5‑1983 as follows:‑

"The F.I.R. shows that the distance between the spot and the P.S. is 8/9 miles, but the report is made on 9‑8‑1981 at 3 a.m. The report is made after about 8‑1/2 hours of the occurrence. The complainant while appearing as P.W.7 has stated that their village is connected with Public Transport Buses even then the report is made after about 8‑1/2 hours of the occurrence. The complainant has stated in her statement that the deceased then injured was first taken to the house of Fazal Ahmad. The said Fazal Ahmad is not produced to prove that the deceased then injured was taken to his house."

5. Regarding the ocular testimony finding of the learned trial Judge is that Mst. Karam Jan was the only eye‑witness who had narrated the story before that Court. Though in the F.I.R. and also in her statement before that Court the complainant had mentioned that her brother Mian Dad was also present on the spot and witnessed the occurrence, yet neither he had stated that he was actually present nor he claimed to be an eye‑witnesses. Therefore, while giving the benefit of doubt the accused /respondents were acquitted per judgment, dated 22‑5‑1983.

6. State appeal against the acquittal of the accused /respondents and revision petition filed by the complainant Mst. Karam Jan before the High Court resulted in dismissal of both vide the impugned judgment, dated 29‑4‑1985. The learned High Court Judges agreed with the finding of the learned trial Judge regarding the delay in making the report; non‑production of Mian Dad, brother of the complainant and that other circumstances did not support the ocular testimony of Mst. Karam Jan.

7. However, the learned counsel for the petitioner submitted that the crime was committed in broad daylight; that the circumstantial evidence in the shape of recoveries of blood‑stained articles, made out a case against the accused /respondents; that the judgments of the lower Courts have resulted in miscarriage of justice; that the delay in lodging the report had been satisfactorily explained by the complainant Mst. Karam Jan i.e. non‑availability of conveyance and precarious condition of the deceased who could not be carried to the Police Station on foot; that the non‑production of Mian Dad could not be a ground for disbelieving the evidence of Mst. Karam Jan who is disinterested person having no enmity with the accused /respondents; and that the matter was sudden and as such there could not be any reason to doubt her statement in the context of the case.

8. We have gone through the judgments and the evidence on record with the assistance of the learned counsel for the petitioner and Mr. Bashirullah Khan, the learned Assistant Advocate‑General, and find no reason to interfere with the impugned judgment, particularly in view of the fact that the learned trial Court had the opportunity to hear the witnesses and take into consideration all other circumstances allegedly connecting the accused/respondents with the crime. We find no merit in this petition which is, consequently, dismissed.

M . Y . H . Petition dismissed.

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