2013 P Cr (PLP)

This Criminal Appeal under section 417(2-A), Cr.P.C. is directed against the judgment dated 30-11-2011 passed by the learned Additional Sessions Judge, Bahawalnagar, whereby Muhammad Asif and Muhammad Nadeem respondents Nos.2 and 3/accused of case F.I.R. No.73 of 2010, dated 27-2-2010, under sections 302/324/34, P.P.C., Police Station Sadar Chishtian, district Bahawalnagar have been acquitted of the charges.

2. Details of the occurrence as unfolded by the complainant/appellant Safdar Ali in the F.I.R. lodged by him on 27-2-2010 at 10-05 p.m. are that on the same night complainant along with his brother Muhammad Ashraf was standing outside the house when Muhammad Ashraf went to purchase cigarettes from the shop of Muhammad Riaz situated opposite to his house; that in the meanwhile Muhammad Kashif co-accused armed with pistol .30 bore, Muhammad Asif (respondent No.2) armed with hatchet and Muhammad Nadim (respondent No.3) armed with soti emerged there while dragging their sister Mst. Zareena Bibi and gave beatings to her; that thereafter Muhammad Kashif co-accused injured her by firing two pistol shots; that thereafter accused reached the shop of Riaz Ahmed and proclaimed lalkara not to spare Muhammad Ashraf; that Muhammad Ashraf using the backdoor of the shop through courtyard reached the main door of house of Riaz Ahmed; that accused raising lakaras also reached in front of him; that in the meanwhile complainant and his brothers Sabir Ali and uncle Waris Ali alias Barish Ali responding to the hue and cry of Muhammad Ashraf reached the spot; that within their sight accused Muhammad Kashif fired a straight shot which hit Muhammad Ashraf on chest and the second shot fired by Muhammad Kashif hit backside of Muhammad Ashraf, who fell down on the ground; that the accused were identified in the light of bulb; that accused while raising lalkaras decamped from the spot; that they attended Muhammad Ashraf who succumbed to the injuries at the spot. Motive is that one year back accused has stolen water-pump from complainant's house and in this regard a case was registered at Police Station Sadar Chishtian and his brother used to pursue the said case and for this grudge accused giving wrong colour to the situation injured their own sister and murdered his brother.

3. It is argued by learned counsel for the appellant that later on Zarina Bibi injured also succumbed to the injuries on 5-3-2010; that respondents Nos.2 and 3 while armed with deadly weapons in furtherance of their common intention actively participated in the occurrence; that complicity of respondents Nos.2 and 3 has been sufficiently established by the prosecution through ocular account comprising statements of eye-witnesses i.e. Safdar Ali complainant (P.W.1), Muhammad Riaz (P.W.2) and Barish Ali alias Waris Ali (P.W.3) without any material discrepancy or inconsistency in their testimonies; that learned trial Court has granted acquittal to respondents Nos.2 and 3 given benefit of doubt on the basis of surmises and conjectures in sheer disregard to the confidence-inspiring ocular account produced by the prosecution; that the impugned judgment of acquittal in favour of respondents is based on misreading and non-reading of evidence, arbitrary, perverse, untenable in law and liable to set aside.

4. We have given patient hearing to learned counsel for the appellant and gone through the record.

5. At the outset it is pertinent to mention that co-accused Muhammad Kashif has been convicted under section 302(b), P.P.C. and sentenced to death on two counts and further directed to pay Rs.25,000 to each of the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. and in default thereof further undergo for Simple Imprisonment for three months vide same judgment dated 30-11-2011.

6. Perusal of the contents of F.I.R. dated 27-2-2010 reveals that complainant had not attributed any specific injury to respondents Nos.2 and 3 on the body of Mst. Zarina Bibi and Muhammad Ashraf (both deceased). Contrary to the contents of F.I.R. only one blunt edge weapon injury on the head of Mst. Zarina is shown in her MLC No.25 of 2010. Safdar Ali complainant (P.W.1) while appearing in the witness box categorically stated that Muhammad Nadeem respondent No.3 gave beatings to Mst. Zarina Bibi through soti. In his statement he has not attributed any head injury of Mst. Zarina Bibi to respondent No.3. The above part of complainant's testimony is, therefore, clear improvement and afterthought. Muhammad Riaz (P.W.2) did not utter even a single word with regard to any beatings by respondents Nos.2 and 3 to Mst. Zarina Bibi. Barish Ali alias Waris Ali (P.W.3) in his testimony stated that accused Muhammad Kashif armed with pistol .30 bore, Muhammad Asif armed with hatchet and Muhammad Nadeem armed with soti gave beating to Mst. Zarina Bibi. He did not mention that they brought Mst. Zarina Bibi while dragging her. No specific injury to Mst. Zarina Bibi is attributed to respondents Nos.2 and 3.

7. No overt act is attributed to respondents Nos.2 and 3 except proverbial lalkara. Muhammad Riaz (P.W.2) stated that accused Kashif, Asif and Nadeem asked him to bring out Muhammad Ashraf from his shop. Barish Ali alias Waris Ali (P.W.3) in his testimony stated accused Kashif, Asif and Nadeem followed Muhammad Ashraf raising lalkara saying that they will kill him. Testimonies of all the three P.Ws. regarding proverbial lalkara and participation of respondents Nos.2 and 3 are materially inconsistent and contrary to the complainant's version as set forth in the F.I.R. regarding alleged lalkara. It is astonishing that respondents Nos.2 and 3 despite allegedly armed with deadly weapons did not use the same in commission of the alleged offence. In the given circumstances learned trial Court has rightly concluded that alleged presence and active participation of accused Muhammad Asif and Muhammad Nadeem (respondents Nos.2 and 3) is highly doubtful.

8. It is cardinal principle of criminal law that prosecution remains under heavy burden to bring the guilt home to the accused beyond any shadow of doubt whereas in the instant case prosecution has failed to prove the charge against the accused/respondents Nos.2 and 3 beyond any reasonable doubt, therefore, learned trial Court has rightly granted the acquittal in favour of the accused/respondents Nos.2 and 3 given benefit of doubt.

9. It has been variously held by the Hon'ble apex Court that double presumption of innocence is attached to the order of acquittal of the accused passed by the Court of competent jurisdiction. This Court has never desired to interfere in the order of acquittal unless it is arbitrary, capricious, fanciful and against the record. Reliance is made upon Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803).

10. In the instant case we do not find any factual or legal infirmity in the impugned order passed by learned trial Court granting acquittal to respondents Nos.2 and

3. It also does not suffer from non-reading or misappreciation of evidence produced by the complainant/appellant on the record. It is neither arbitrary nor perverse. Therefore it does not call for any interference by this Court. This appeal having no merit is dismissed in limine. MWA/S-55/L Appeal dismissed.