1981 S C M R 795

Present : Anwarul Haq, C. J., Muhammad Haleem, G. Safdar

Shah and Muhammad AJzal Zullah, JJ

SAID AHMAD-Petitioner

versus

ZAMMURED HUSSAIN AND 4 OTHERS-Respondents

Criminal Petition No. 57-R of 1979. decided on 18th February, 1980.

(On appeal from the judgment and order dated 29th May, 1979 of the Lahore High Court at Lahore in
Criminal Revision No. 278 of 1979).

Criminal Procedure Code (V of 1898)-

-- S. 417 read with Constitution of Pakistan (1973), Art. 185(3) Appeal against acquittal-Leave to
appeal to Supreme Court- Fact of eye-witness being injured and injuries being not self -suffered-Not by
itself indicative of witness having told truth Witnesses closely related to deceased while other persons
men tioned in F. I. R. not examined - Such fact shows injured eye-witnesses being desired to withhold
material aspects of case from Court and prosecution being apprehensive that in case of indepen dent
witnesses being examined their depositions might support plea of accused-Acquittal, held, rightly not
interfered with by High Court.-[Appeal against acquittal].

Agha Aziz Ahmad, Advocate Supreme Court and Ch. Akhtar Ale, Advocate-on-Record for Petitioner.

Riaz Ahmad, Assistant Advocate-General (Punjab) for the State.

Nemo for the Remaining Respondents.

Date of hearing : 18th February, 1980.

JUDGMENT

MUHAMMAD AFZAL ZULLAH, J.-The acquittal of respondents Nos. 1 to 4 by the learned

Additional Sessions Judge, Rawalpindi, in a case of murder, armed by the Lahore High Court in its
revisional order dated 29th May, 1973, has been brought under challenge through this petition for leave
to appeal.

The allegations against the said respondents were that they armed with deadly weapons caused injuries
to Nazir deceased and Said Ahmad and Mst. Mazloom Bibi P. Ws. Zammured respondent was
allegedly armed with a chhuri, while Lal Khan carried a kulhari and the remaining two had sotis. The
attack was motivated on account of dispute over a well in connection with which there was an earlier
civil litigation. Mst. Mazloom Bibi and Said Ahmad appeared as eye-witnesses and involved all the
four respondents as culprits, in their depositions. Evidence was also led to support the recovery of
chhuri from Zammured respondent as also weapons said to have been used by the other respondents:
The chhuri was found to have been stained with human blood.

Zammured and Lai respondents pleaded right of self-defence, while the plea of the other two was of
denial. The defence relied on the fact that on medical examination, Zammured and Lai Khan
respondents and Mst. Farmida cousin of Zammured and niece of Lai Khan respon dents, were found to
have been injured. The injuries found on the person of Msr. Farmida are as follows :-

(1) Both central incisors upper jaw shaky.

(2) Laceration quarter inch between gums and upper lips at the level of central upper incisor.

(3) Swelling over whole of upper lips.

(4) Small laceration with swelling over left side of lower lips.

The learned trial Judge did not rely on the ocular evidence, mainly, on the ground that the two eye-
witnesses were interested and that they had failed to explain the injuries on two of the accused persons
as also on the person of Mst. Farmida. Said Ahmad filed a revision petition in the High Court with
having been dismissed in limine by a learned single Judge, he has moved the petition for leave to
appeal

Learned counsel for the petitioner while admitting that Mst Famida is closely related to the respondents
contended that there is no evidence on record to show that she was injured in the occurrence in which
Nazir lost his life and the two P. Ws. were injured ;that it was not necessary for the prosecution to
explain the injuries found on the two respondents and lastly that notwithstanding the afore noted failure
on the part of the prosecution, the eye-witness account could not be rejected as the same was given by
two injured P. Ws. whose presence could not be doubted.

Both the learned Courts below have accepted the defence version that Mst.. Farmida was injured in the
same occurrence. We have examined the medical evidence. The duration of the injuries on Mst.
Farmida tallies with the time of the occurrence in this case. Learned counsel has also contended in this
behalf that the Investiga ting Officer deposed that Mst. Farmida was not injured in this occur rence.
This could not be treated as direct evidence. Nothing has been said as to how she received the injuries
some of which are fairly serious. It is not the case of the prosecution that they were either self-suffered
or self-inflicted. On the other hand, she was cited as a P. W. but was given up at the trial Learned
counsel admits that the eye-witnesses did not state as to how and -where Mst. Farmida was injured. The
findings of the learned two Courts below in this behalf are unexceptionable.

Both Zammured and Lai Khan respondents suffered one injury each but it cannot be said that they were
self-suffered. The fact that Mst. Farmida, one of their close relations, was also injured made it all the
more necessary for the prosecution to explain as to how three persons on the accused side received
several injuries. The learned Single Judge in the High Court rightly observed that Said Ahmad
complainant and his sister Mst. Mazloom P. W. did not disclose the whole truth about the occurrence
before the Court. In the circumstances of this case, the failure of the prosecution to explain the injuries
on the respondents side, was a very strong circumstances going in their favour and could not have been
ignored by the learned trial Court.

It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they
were not self-suffered. But that by iself would not show that they had, in view of the aforenoted
circumstances, told the truth in the Court about the occurrence ; parti cularly, also the role of the
deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely, related to the
deceased while the two other eye-witnesses mentioned to the F. I. R., namely Abdur Rashid and Riasat
were not examined at the trial. This furthers shows that the injured eye-witnesses wanted to withhold
the material aspects of the case from the Court and the prosecution was apprehensive that if
independent witnesses are examined, their depositions might support the plea of the accused.

After hearing the learned counsel, we do not consider it a fit case for interference. This petition
accordingly is dismissed.

Petition dismissed.