2017 PLP 2007 (SCMR)

MANZOOR AHMAD MALIK, J.

Appellant has called in question the judgment dated 12.11.2008 whereby the learned High Court has allowed the criminal appeal filed by respondent No.1 against his conviction/sentence and while answering the murder reference in the negative, acquitted respondent No. 1 of the charges. Hence, this appeal by leave of the Court.

2. Respondent No. 1 Muhammad Ijaz along with four co-accused namely Khalid Hassan, Muhammad Tariq, Qazi Muhammad Ashraf and Muhammad Rafi was accused in case FIR No. 199/95 dated 19.08.1995, offence under sections 302, 34, 109, P.P.C., got registered by the appellant-complainant at P.S. Minchanabad, for the murders of Muhammad Tahir Sadiq and Muhammad Saqib. Since the respondent No.1 absconded, therefore, his co-accused were tried separately by the learned trial Court, who were acquitted at the conclusion of their trial. It is relevant to mention here that complainant did not file any appeal against their acquittal in the next higher forum. After the arrest of respondent No.1, a separate trial was conducted and the learned trial Court vide its judgment dated 19.12.2003 convicted him under sections 302/34, P.P.C. and sentenced him to death on two counts with direction to pay fine of Rs.100,000/- on two counts, in default whereof to undergo 02 years' RI. The said findings of guilt were set aside by the learned High Court in appeal.

3. We have heard learned counsel for the appellant-complainant and learned Law Officer at some length and have perused the available record as well as the impugned judgment with their assistance.

4. The ocular account in this case was furnished by three witnesses namely Kishwar Bibi (PW.6), Zaheer Sadiq (PW.7) and Muhammad Tayyab (PW.8). In her examination in chief, Mst. Kishwar Bibi did not support the prosecution story and she was declared hostile. Zaheer Sadiq and Muhammad Tayyab were residents of Ward No.7 Minchanabad whereas the occurrence took place in Ward No.9 Minchanabad and as such both the witnesses of ocular account were chance witnesses. While appearing before the learned trial court, they tried to explain their presence at the place of occurrence but their explanation was discarded and the learned appellate court has not believed the presence of witnesses of ocular account namely Muhammad Zaheer Sadiq (PW7) and Muhammad Tayyab (PW8). The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police. Moreover, there are material contradictions in the statements of the prosecution witnesses as Muhammad Tayyab (PW.8) stated before the Police that the Investigating Officer remained at the place of occurrence for 10/15 minutes and thereafter he left the place of occurrence but to the contrary Syed Mehboob Raza (PW.13) who investigated the case, stated during his cross-examination that he remained at the place of occurrence for 2 or 2-1/2 hours. In Para 7 of the impugned judgment, the learned High Court has discussed the testimony of Mst. Kishwar Bibi PW6 (widow of deceased Muhammad Tahir Sadiq and mother of Saqib) who was declared hostile by the prosecution because she did not support the case of the prosecution qua the murder of her husband and her son at the hands of respondent No.

1. According to her, on the fateful night 4/5 unknown persons emerged on the roof of the house and made firing on Muhammad Tahir Sadiq and Muhammad Saqib, who succumbed to the injuries. In the wake of this contradictory and self-destructing primary evidence, we have observed that learned High Court has rightly acquitted respondent No.

1. Even otherwise, it is well settled by now that in criminal cases every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such presumption. The reasons given by the learned High Court, in the impugned judgment, have not been found by us to be arbitrary, fanciful or capricious warranting interference by this Court.

5. For the foregoing, this appeal having no merit is dismissed. MWA/Z-7/SC Appeal dismissed.