' MIAN MUHAMMAD AJMAL, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the validity of the judgment of the Lahore High Court, Lahore, dated 2-5-2001, whereby Criminal Appeal No,1505 of 2000 filed by the complainant- petitioner and Criminal Appeal No,263 of 2001 filed by the State, were dismissed and acquittal of Nizam Din and Muhammad Hussain, respondents, was maintained.
2. Resume of the case is that Nizam Din, Muhammad Hussain, respondents and their co-accused Niamat Ali and Iftikhar alias Kukki were tried by Additional Sessions Judge, Lahore under section 302/34, P.P.C. For the murder of Muhammad Shafique son of, the complainant. The allegations against them were that on 5-7-1996 at 11-30 a.m. In the area of Pindi Rajputan, Police Station, Liaquatabad, Lahore, they in furtherance of their common intention murdered Muhammad Shafique. They were sent to face trial before the learned Additional Sessions Judge, Lahore, who charged them under section 302/34, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced 14 witnesses. Ocular account was furnished by Muhammad Siddique, the complainant (P.W.3), Muhammad Asif (P.W.4) and Muhammad Ashraf (P.W.5). The accused denied the allegations levelled against them in their statements under section 342, Cr.P.C. They also produced Muhammad Zaman, S.P. Crimes Branch, Lahore as D.W.1 who stated that he had partly investigated the case, according to which the accused except Iftikhar, were found innocent. The learned trial Judge on conclusion of the trial, vide his judgment, dated 29-9-2000 convicted Niamat All and Iftikhar alias .Kukki under section 302(b)/34, P.P.C. And sentenced them to imprisonment for life as Ta'zir and to pay a sum of Rs, 50,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo six months S.I. Each. Benefit of section 382-B, Cr.P.C. Was extended to them. The learned trial Judge while awardinglesser penalty to them observed that there was no specific evidence attributing fatal injury to any of the convicts, therefore, normal penalty of death could not be awarded to both the convicts. Vide same judgment, the trial Court acquitted Nizam Din and Muhammad Hussain respondents Nos. 2 and 3 by giving them the benefit of doubt by holding as they had been attributed role of 'Lalkara' and 'Japha' respectively and it was observed that in such cases normally some exaggerations as to the number of the accused cannot be ruled out.
3. The petitioner/complainant challenged the acquittal of Nizam Din and Muhammad Hussain through Criminal Appeal No,1505 of 2000 while the State filed Criminal Appeal No,263 of 2001, which were dismissed by a learned Division Bench of the Lahore High Court, Lahore vide its judgment, dated 2-5-2001, impugned herein.
4. Learned counsel for the petitioner submitted that Nizam Din commanded his son and nephew to kill Muhammad Shafique (deceased) and Muhammad Asif (P.W.) whereupon they attacked the deceased. Muhammad Hussain caught hold of Muhammad Asif (P.W.) and facilitated the crime, thus, both of them were vicariously liable of the commission of the offence as such they were liable to be convicted under section 34, P.P.C.
We have heard the learned A.O.R. Of the petitioner and have perused the record. The role assigned to both the respondents is proverbial one and their actual involvement in the crime is not substantially proved. During investigation of the case, they were not found guilty of the offence by D.W.1, therefore, they were rightly extended the benefit of doubt. In such circumstances, the impugned judgment does not warrant for any interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, this petition being devoid of any merit is dismissed and .