2007 PLP 1975 (MLD)

Muhammad Zahid, accused-respondent involved in case F.I.R. No. 314, dated 28-8-2002, for offence under sections 302, 148 and 149, P.P.C. registered at Police Station City Gojra was tried by the learned Additional Sessions Judge, Gojra, who vide his judgment, dated 17-1-2007 acquitted him from the aforesaid case.

2. The appellant being aggrieved of the acquittal of Muhammad Zahid has filed this appeal.

3. The brief facts of the case are that on 28-8-2002 at about 9-30 a.m. the complainant along with Falak Sher and Haq Nawaz was busy in conversation in front of his house when Mahboob Alain deceased had gone to purchase ice. When the deceased reached the chowk near the house of Liaqat Ali, all of a sudden there appeared Abdul Haq armed with repeater gun .12 bore, Shabbir armed with rifle .222 bore, Asim armed with .12 bore double barrel gun, Jani armed with .12 bore gun, Muhammad Nawaz armed with .30 bore pistol, Gulshan armed, with rifle .9 mm and Ajji armed with. rifle .7 imn. Muhammad Nawaz raised Lalkara that Mahboob Alain should be done to death. Thereafter, all the accused made indiscriminate firing and upon hearing noise of firing the complainant and P.Ws. reached the chowk. In their presence Abdul Haq accused made fire with .12 bore repeater which hit on the right side of chest of deceased and the second fire was made by Asim which also hit on the front of chest of deceased and the deceased fell down after walking some steps. On the hue and cry raised by the complainant and P.Ws. the accused while firing ran away from the place of occurrence and Mahboob Alain died at the spot. The motive behind the occurrence was that a few days earlier Abdul Haq accused and Shabbir had demanded some unjustified amount (Jagga) from Haq Nawaz at Aleem power looms which. Haq Nawaz refused to pay with the result that there was an exchange of hot words between them and due to this reason that accused persons committed the murder of Mahboob Alain.

4. Amongst the prosecution witnesses are Muhammad Safdar Ali, Constable (P.W.1),' who recorded the formal F.I.R. Exh.P.A. Muhammad Yaqub, Constable (P.W.2) deposited the parcel of blood-stained earth in the office of "Chemical Examiner. Maqsood Ahmed, Constable (P.W.3) had escorted the dead-body for postmortem examination and after the examination he delivered the last-worn clothes of the deceased and sealed phial said to contain pellets to the Investigating Officer Dr. Muhammad Aslam (P.W.4) conducted the postmortem examination of the deceased. Syed Kazim Hussain Gillani (P.W.5) prepared the site-plan of the place of occurrence Exh.PF and PF/1. Khalid Hussain (P.W.6) and Falak Sher (P.W.7) furnished the ocular account. Walayat Ullah (P.W.8) is a witness to the recovery of blood-stained earth collected from the place of occurrence. Muhammad Ishaq (P.W.9) had identified the dead-body at the time of post-mortem examination. Rafaqat Ali (P.W.10) is recovery witness. Khalid Mehmood. S.-I. (P.W.11), Abdul Jabbar, S.-I. (P.W.12) and Abdul Ghafoor, S.-I. (P. W.13) are Investigating Officers. Musawwar Hussain, Constable (P.W.14) was entrusted with non-bailable warrants as well as process for proclamation of accused persons when they were absconders.

5. In his statement under section 342, Cr.P.C. Muhammad Zahid, accused-respondent pleaded his innocence and denied his involvement in the case. However, he neither opted to produce any defence evidence nor recorded his statement under section 340(2), Cr.P.C.

6. The learned counsel for the petitioner contended that the respondent with his co-accused came to the spot while armed and in furtherance of common object committed the murder of Mahboob Alain deceased; that according to the witnesses the respondent along with other resorted to firing, therefore, the acquittal of the respondent is totally against the law and evidence on the record; that motive for the occurrence was also ascribed to the respondent as well as the other accused; that the medical evidence fully corroborates the ocular account and that during the investigation weapon was recovered from the possession of the respondent, therefore, he was not entitled to be acquitted.

7. I have heard the learned counsel and gone through the judgment of the learned Trial Court.

8. Admittedly the injuries resulting in the death of the deceased Mahboob Alain were caused by Abdul Haq and Asim co-accused. The only role ascribed to the respondent is of making aerial firing` with a .7. mm rifle, therefore, as per the prosecution's own showing no injury has been caused by the respondent on the body of the deceased. During the investigation a .7 mm. rifle (Exh.7) with live bullets was recovered from the possession of the respondent which is of no avail to the prosecution as no empty of .7 mm rifle was recovered from the place of occurrence which could be matched with the weapon recovered. The learned trial Court while appreciating the eye-witness account furnished by the P.Ws. rightly concluded that a wider net had been thrown by the prosecution in order to implicate maximum number of persons from the accused side. The conclusion finds support from the fact that in the F.I.R. six persons are nominated who while armed with fire-arm weapons participated in the occurrence yet only two injuries were suffered by the deceased. It has also been observed by the learned trial Court that the deceased was at the mercy of the respondent who despite being armed with .7 mm rifle did not cause any injury to the deceased. This obviously reflects that respondent had no intention to murder the deceased. The learned trial Court has rightly disbelieved the ocular account furnished by the eye-witnesses vis-a-vis the respondent as the same was not found to be credible to his extent. The medical evidence although supports the ocular account to the extent of Abdul Haq and Asim co-accused of the respondent, however, the same has no relevance insofar as the respondent is concerned.

9. From the above, it is evident that there is no misreading or non-reading of evidence or perversity of reasoning. We have not been-able to find any plausible reason to disagree with the conclusions arrived at by the trial Court. Since the respondent has been acquitted of all the charges, therefore, double presumption of innocence is attached. No interference is called for. Accordingly this appeal is dismissed in limine. H.B.T./K-36/L Appeal dismissed.