2003 PLP 477 (SCMR)

Rana Muhammad Ashraf Khan, Advocate Supreme Court and Muhammad Islam, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 8th July, 2002. RANA BHAGWANDAS, J.‑‑‑Petitioner seeks leave to appeal against the concurrent findings of not guilty arising out of a case registered on the basis of F.I.R. No.438 of 1997 recorded on 27‑12‑1997 at Police Station, Mitru, District Vehari, relating to Qatl‑i‑Amd of deceased Muhammad Ishaq at the hands of the respondents.

2. Unfortunate unwitnessed episode occurred on 26‑12‑1997 at about 9‑00 p.m. within Chak No. 109/NB at a distance of eight miles from the Police Station whereas F.I.R. was lodged the next day at 7‑00 a.m. On the material day, petitioner had been to the house of deceased‑Muhammad Ishaq (brother) where Talib Hussain, Muhammad Sarwar and his other relatives were available. Muhammad Ishaq left for availing his water rotation at the land commencing from 6‑00 p.m. and lasting till 5‑00 a.m. of the next day when at about 9‑00 p.m. petitioner heard fire‑arm report. He, alongwith Talib Hussain and Muhammad Sarwar, proceeded in that direction where he found dead body of his brother lying in a pool of blood with injuries on neck, right shoulder, waist and left side lumber region. He noticed an empty cartridge of 12 bore lying in the close proximity in the light of a 'Laltain', a loaded magazine and single moccasin black shoe. Later, during the course of investigation, respondents were arrested and at the behest of respondents Muhammad Jameel and Muhammad Asghar two 12 bore guns were recovered.

3. Circumstantial evidence in the shape of extra judicial confession by all the respondents except Bashir Ahmad before Muhammad Sadiq‑P.W.14, evidence of Vajtakar witnesses namely Basharat Ali‑P.W.10 and Muhammad Adam‑P.W.11 coupled with recovery of crime weapons from two respondents and the motive was adduced before the trial Court against respondents, who were acquitted on deeper analysis of the evidence vide judgment dated 17‑1‑2001. Petitioner preferred an appeal against their acquittal before a Division Bench of the Lahore High Court but without any success, hence this petition for leave to appeal.

4. We have heard learned counsel for the petitioner at quite some length, gone through the relevant record and examined the impugned judgment.

5. At the very outset it may be observed that the law relating to re appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be A reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non‑reading of evidence. No such circumstance appears to have been brought on the record to disturb the concurrent findings of fact concluded by two Courts below. In our view, reappraisal of evidence at this stage would be neither desirable nor permitted by law. Even if a second view be possible on assessment of evidence, law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.

6. Learned counsel attempted to persuade us to accept the evidence furnished by Vajtakar witnesses but, in our view, without any ocular evidence, no importance can be attached to this piece of evidence, which is otherwise weak and infirm. Learned counsel, however, fairly concedes that he would not press the evidence relating to extra judicial confession of the respondents before P. W.‑Muhammad Sadiq, it being joint and vague. We are equally least impressed by the circumstance leading to recovery of crime weapons at the behest of accused, which even if accepted would not be adequate enough to record a finding of guilt on a capital charge.

7. For the aforesaid facts and reasons, there is no merit in this petition which is hereby dismissed and leave to appeal refused. N.H.Q./M‑562/S Appeal refused.