2005 PLP 695 (YLR)

(ix) That there is conflict between the ocular account and the medical evidence. Explaining the said conflict learned counsel submits that Zahid Aslam deceased was fired upon from a distance of about 22 feet but there is blackening and burning on his person which shows that he was fired upon from a close range. According to the learned counsel, it was the case of the prosecution that Muhammad Aslant deceased was fired upon from 2/3 feet but there is no blackening or burning on his injuries; (x) That according to the prosecution Shahid Rasool appellant was armed with .222 rifle who fired at the chest of deceased Zahid Aslam but there is no injury on his chest which belies the prosecution case According to the learned counsel in fact it is an exit wound; (xi) That as per prosecution case, Ghulam Rasool, Mst. Surriya Bibi, Nadeem Rasool and Zahid Rasool (appellant) fired with their respective fire‑arms on Zahid Aslam on his right side of the cheek, right side of head and on the right ring finger but there is no such injury in the postmortem report. According to the learned counsel in fact there is an exit wound on the right cheek but no injury on the head exists; (xii) That the case of the prosecution in the F.I.R. is that both the deceased had died at the spot, the doctor stated that both of them died immediately but before the learned trial Court, the prosecution witnesses stated that the deceased were taken alive in the hospital; (xiii) That on the basis of the same evidence five co‑accused of the appellants, namely, Ghulam Rasool, Zahid Rasool, Mst. Surriya Bibi, Sadiq and Mehmood Ahmad have been acquitted by the learned trial Court and notwithstanding the fact that the case of the appellants also rests on the same footings but the appellants were not acquitted by the learned trial Court; (xiv) That as no case is made out against the appellants as well, therefore, they are also entitled to acquittal by this Hon'ble Court. Learned counsel f the appellants in support of the above submissions, relied upon a judgment of Hon'ble Supreme Court reported in Sikandar v. The State (PLD 1963 Supreme Court 17).

8. On the other hand, learned counsel for the complainant, while defending the impugned judgment and seeking enhancement of sentence of the appellants through Criminal Revision No. 622 of 2003 raised following pleas:‑‑ (i) That there was enmity between the parties and the appellants had a motive to kill the deceased persons as a son of Mst. Surraiya Bibi, namely, Javed was murdered by Zahid Aslam deceased and to take revenge these murders have taken place; (ii) That the occurrence had taken place in the broad‑daylight, the appellants were named in the promptly lodged F.I.R. with specific roles assigned to them, the eye‑witnesses have 'supported tote prosecution case and there was no question of false implication; ' (iii) That both the deceased persons were used to accompany by the bodyguards and Fayyaz had appeared as an eye‑witness being the bodyguard of the deceased; (iv) That both the parties are being backed by influential groups of the area, the deceased were invited by Nazar (give up) to take tea in his Baithak and then this occurrence took place. According to the learned counsel, same is the position of Afzaal injured because he belonged to the adverse party i.e. the accused party while Ashraf P. W. died before the commencement of the trial. (v) That there are three major injuries on the person of Zahid Aslam deceased and there are two injuries on the backside of the chest of deceased Muhammad Aslam (entry wound). According to the learned counsel, the said injuries have specifically been mentioned by the doctor who appeared as P.W.8 and who conducted the postmortem examination of both the deceased persons; (vi) That both the deceased persons have been killed after pre meditation; (vii) That specific injuries are also attributed to Nadeem Rasool appellant on the person of Muhammad Aslam deceased; (viii) That although there are minor discrepancies in the statements of the prosecution witnesses but the same cannot demolish the prosecution case.

9. The learned State counsel, while defending the impugned judgment and after having adopted the arguments of the learned counsel for the complainant additionally submits that the appellants have committed a double murder and do not deserve any leniency by this Hon'ble Court; that the impugned judgment of conviction is a well‑reasoned judgment; that the prosecution has proved its case against the appellants beyond a shadow of doubt; that the conviction and sentence awarded to the appellants be maintained and the appeal filed by the appellants be dismissed.

10. I have heard learned counsel for the parties, have gone through the impugned judgment, the judgment, dated 1‑10‑2003 passed by a learned Division Bench of this Court in Criminal Appeal No. 1708 of 2003, the record of the case and have also given anxious consideration to the arguments addressed by the respective parties and the case‑law relied upon by the learned counsel for the appellants.

11. In the instant case in all there were eight accused persons. The accused persons, who were shown to be present at the spot, are Shahbaz Rasool, Shahid Rasool (appellant), Nadeem Rasool (appellant), Zahid Rasool, Ghulam Rasool and Mst. Surriya Bibi while there are two accused persons of abetment, namely, Sadiq Amin and Mehmood. Co‑accused of the appellants, namely, Ghulam Rasool, Zahid Rasool, Mst. Surriya Bibi, Sadiq Amin and Mehmood Ahmad have already been acquitted by the learned trial Court. Criminal Appeal No. 1708 of 2003 was filed by the complainant Muhammad Akram (P.W.6) against their acquittal which was dismissed by a learned Division Bench of this Court vide detailed order, dated 1‑10‑2003. The motive set by the complainant is that 5/6 years back, Javed son of Ghulam Rasool was murdered in which Zahid Aslam deceased and other relatives of the complainant were challaned and in order to take revenge of the said murder, according to the prosecution, the appellants and other co‑accused murdered the above two persons. There were in all five eye‑witnesses of the occurrence. Muhammad Akram, who is complainant of the case, is the real brother of deceased Muhammad Aslam while he is uncle of Zahid Aslam deceased. Then Fayyaz Ahmad is yet another eye‑witness of the case who appeared as P. W.2. He was bodyguard of both the deceased persons. Nazar Muhammad son of Sardar Khan was also an eye‑witness of the case. He was the person in whose house/Baithak, appellants were invited on tea and where the occurrence took place. He was given up by the prosecution. Afzaal was also eye witness of the case but he was also not produced while Ashraf died before the commencement of the trial. Now this Court is left to scrutinize the evidence of Muhammad Akram complainant (P.W.6) and Fayyaz Ahmad (P.W.2). As has been mentioned above Muhammad Akram complainant is closely related to both the deceased persons while Fayyaz Ahmad was their bodyguard. The allegation against Shahid Rasool appellant is that he gave a fire‑arm injury on the chest of the deceased Zahid Aslam but there is no entry wound on the chest of the said deceased as has been stated by the eye‑witnesses. As per prosecution case, Ghulam Rasool, Mst. Surriya, Nadeem Rasool and Zahid Rasool fired with their respective fire‑arms upon Zahid Aslam which landed on his right side of the cheek, on the right side of head and on the right ring finger. Perusal of the record shows that Injury No.1‑B on the person of Zahid Aslam deceased is an exit wound while there is do injury on his head but there are injuries on the right hand. This shows that four accused persons were attributed these injuries. Amongst them only one injury on the right little finger of the hand is present but no injury on the head and the right side of the cheek are present.

12. Allegation against Nadim Rasool appellant is that he along with Ghulam Rasool and Shahbaz Rasool fired at Muhammad Aslam deceased landing on the back and left side of his chest of Muhammad Aslam deceased. There are two injuries on his back which are attributed to Shahbaz Rasool (Proclaimed Offender) and Ghulam Rasool. Although Nadeem Rasool appellant was shown to have armed with .30 bore pistol during the occurrence but no empty of .30 bore pistol was recovered from the spot. Shahid Rasool appellant was, allegedly carrying .222 rifle but surprisingly .7 mm rifle was shown to have been recovered from him which was taken into possession vide memo. Exh. PF.

13. In all the three investigations, both the appellants were found to be innocent. Five co‑accused of the appellants, namely, Ghulam Rasool, Zahid Rasool, Mst. Surriya Bibi, Sadiq Amin and Mehmood Ahmad were acquitted from the case. Case of three co‑accused, namely, Ghulam Rasool, Mst. Surriya Bibi and Zahid Rasool was on the same footings on which the present appellants have been convicted by the learned trial Court. I have also gone through the detailed order of a learned Division Bench of this Court, dated 1‑i0‑2003 passed in Crl. Appeal No‑1708 of 2003 whereby appeal against their acquittal was dismissed. The reasoning of acquittal coming forth from the impugned judgment and the grounds given in the above order of a learned Division Bench of this Court are also applicable to the present appellants. During three successive investigations, the police came to the conclusion that the murders of both the deceased persons took place from the hands of Shahbaz Rasool (Proclaimed Offender).

14. There is yet another aspect of the case. The most natural eye‑witness of the case, namely, Nazar Muhammad in whose house/Baithak the occurrence had taken place was given up by the prosecution. Not as won over but no reasoning has been given by the prosecution for doing so. Even Afzaal injured was given by but no reasoning has been given for giving him up. Both of them were in fact star witnesses of the prosecution case. Presumption would be that had they been produced, they would not have supported the prosecution case.

15. It would not be out of place to discuss here the enmity aspect of the case. Admittedly, enmity between both the parties did exist. This fact has not been controverted by the learned counsel for the complainant rather prosecution case hinges on the said ground. So possibility of false implication cannot be ruled out.

16. Coming to the opinion of the police given during the successive investigations it is observed that although opinion of the police is not binding on this Court but in the peculiar facts and circumstances of this case, as has been mentioned above, it has become relevant in the instant case. Two D.Ws were also produced by the accused persons in order to prove their innocence.

17. Contention of the learned counsel for the complainant that Nazar Muhammad and Afzaal injured P.W. actually belonged to the accused party, therefore, they were not produced during trial, is not supported by any evidence on record. Further plea raised by him before this Court that in fact a conspiracy was hatched by the appellants/accused persons and the said Nazar Muhammad for the commission of the offence for which purpose, the complainant party was invited by Nazar in his house and thereafter this occurrence took place, is also not supportive of any thing on evidence. Moreso that neither the said Nazar Muhammad or Afzaal injured were accused of conspiracy or even abetment.

18. This Court has also gone through judgment of the august Supreme Court of Pakistan reported in Sikandar v. The State (PLD 1963 SC 17) which was relied upon by the learned counsel for the appellants to support his submissions. This Court would get benefit from head notes (a) and (b) which are as under:‑‑ (a) Criminal trial‑‑‑Natural witnesses not produced by prosecution‑‑ Chance witnesses‑‑‑Background of enmity with accused‑‑‑Evidence not relied upon in circumstances. (b) Benefit of doubt‑‑‑Choice between doubting the statement of M (an eye‑witness) or that of A, (Sub- Inspector of Police) who investigated case‑‑‑Principle re -benefit of doubt applicable‑‑ Benefit to go to accused.

19. After having adjudged the case from every angle this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond a shadow of doubt. Resultantly, while granting benefit of doubt to the appellants, this appeal is allowed, the impugned judgment, dated 21‑4‑2003 passed by the learned Additional Sessions Judge, Gujrat is set aside, the appellants are acquitted from the case and shall be released forth if not required to be detained in any other case.

20. For reasons given above, Criminal Revision No. 622 of 2003 filed by the complainant for enhancement of the sentence of the appellants is dismissed. H.B.T./S‑273/L Appeal allowed.