' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition for leave to appeal has been filed against the judgment, dated 29th July, 2002 passed by Lahore High Court, Lahore whereby Criminal Appeals Nos.734 and 774 of 1997 filed by respondents have been allowed and they were acquitted of the charge.
2. Facts in brief leading to filing of instant petition for leave to appeal are that petitioner Muhammad Aslam son of Nathu Khan reported to Khan Muhammad Inspector, Police Station Kharian, District Gujrat that he is resident of Village Dhal Kakka and is running a shop in the village.
His nephew namely Muhammad Ishaq son of Barkat Ali was employed as Manager in National Bank of Pakistan at Galliana Tehsil Kharian and he used to come back to his house daily after performing his duty in the Bank. On the fateful day i,e, 2nd September, 1993 at about 6-00 p.m. The (complainant) along with Muhammad Afzal son of Allah Ditta and Muhammad Siddique son of Nazir Ahmad, resident of the same village, were sitting in his shop. His nephew Muhammad Ishaq passed from near them and on his query told that he was going to see Muhammad Afzal son of Muhammad Khan at his house. At about 6-30 p.m. When he was returning from the house of Muhammad Afzal, respondents Muhammad Shafiq, Abdul Sattar and Muhammad Aslam, all of them duly armed with .12 bore gun, suddenly emerged from the shop of Abdul Majeed, respondent- Muhammad Shafiq raised a Lalkara to Muhammad Ishaq deceased that he would not be spared and thereafter Muhammad Shafiq respondent fired at him with his .12 bore gun hitting the deceased at his chest and chin. Upon receipt of injury Muhammad Ishaq took a turn when Abdul Sattar-respondent fired upon him which landed at the back of Muhammad Ishaq, who fell down facing ground. Respondent Muhammad Shafiq fired another shot hitting him at his back and thereafter respondent Muhammad Aslam fired a shot hitting at sole and fingers of right foot of the deceased. After the above firing, the petitioner along with Muhammad Fazal and Muhammad Siddique (P.Ws.) raised a request to save the life of the deceased but all the accused - respondents threatened them for life, as such they did not dare to go near the accused- respondents. After committing the crime, all the accused-respondents ran away with their respective weapons. The deceased Muhammad Ishaq succumbed to the injuries at the spot.
3. Motive as alleged for the said occurrence was that accused-party had a political rivalry with the deceased during elections of Local Bodies.
4. Accordingly investigation commenced and respondents were arrested. They were sent up to face trial before the Additional Sessions Judge, Gujrat. Statements of the accused-respondents were also recorded under section 342, Cr.P.C. Wherein they pleaded innocence and claimed trial, as such prosecution produced as many as 10 witnesses to substantiate accusation against them.
Two defence witnesses were also produced by the accused-respondents. Learned trial Court on conclusion of the trial, found them guilty and convicted all of them under section 302(b), P.P.C. And sentenced to Muhammad Shafiq and Abdul Sattar to death with further direction to pay Rs,2,00,000 (two lacs) each as compensation or in default to undergo six months' R.I. Each whereas respondent Muhammad Aslam was sentenced to undergo life imprisonment with direction to pay Rs,50,000 as compensation or in default whereof to undergo six months' R.I. Benefit of section 382-B, Cr.P.C. Was also extended to him.
5. Feeling dissatisfied from their conviction/sentences, respondents-accused preferred criminal appeals before the High Court. A murder reference was also sent for confirmation or otherwise of death sentence awarded to respondents Muhammad Ishaq and Abdul Sattar. Appeals so filed by them have been allowed by means of impugned judgment and all of them have been acquitted of the charge. Accordingly murder reference was also answered in negative. Hence, instant petition for leave to appeal has been filed by the complainant against acquittal order of respondent- accused.
6. Learned counsel appearing for petitioner contended that respondents have been acquitted of the charge by the High Court on ignoring overwhelming incriminating evidence produced by prosecution through ocular testimony of P. Ws. Muhammad Aslam and Muhammad Afzal, without assigning sound reasoning, therefore, he prayed for interference in the impugned judgment.
7. At the very outset it may be noted that whenever an accused is acquitted of a criminal charge, he enjoys double presumption of innocence, therefore, interference in such judgment has to be made by considering evidence available on record carefully. Thus, applying this principle on the facts of the instant case we have noticed that the learned High Court had disbelieved to both the eye-witnesses on the ground that they have 'furnished evidence which is contradictory to the medical evidence. It would be appropriate to reproduce hereinbelow the external injuries noted by P.W. Dr. Syed Ali Muhammad on the person of the deceased Muhammad Ishaq:--
(1) 7 fire-arm entry wounds each measuring 1 c.m. x 1/2 c.m. Going inward, edges were inverted, scattered in the area 9 c.m. x 5 c.m. On the back and middle part of chest.
(2) A fire-arm entry wound 2 c.m. x 1/2 c.m. Going inward on the third toe damaging the tip of the toe edges were inverted.
(3) A fire-arm entry wound 3 c.m. x 1/2 c.m. Going inward damaging the fourth toe edges were inverted.
(4) A fire-arm wound 2 c.m. x 3/4 c.m. Mussel deep on the lower part of right side chins.
(5) A fire-arm exit wound 1/2 c.m. x 1/2 c.m. On front and upper part of left side chest near the sternum edges were everted.
(6) Fire-arm exit wound 1 c.m. x 1/2 c.m. On the front of the left side chest 3 c.m. Below the injury No,5 edges were everted.
(7) Fire-arm exit wound 1/2 c.m. x 1/2 c.m. On the front of the left side chest 1 c.m. Above the injury No,5 edges were everted.
(8) Six fire-arm exit wounds each measuring 1/2 c.m. x 1/2 c.m. On the sole of right scattered in the area 5 c.m. x 3-1/2 c.m. Edges were everted.
' On careful examination of the F.I.R. Lodged by P.W. Muhammad Aslam complainant along with his statement got recorded by him in the Court on oath, reveals that respondent No,2 Abdul Sattar fired a shot upon Muhammad Ishaq which hit on his back due to which he fell down on the ground, thereafter, he repeated the fire which also hit on his back, whereas according to the statement of Dr. Syed Ali Muhammad there is only one injury on the back of the deceased which according to him could be the result of the one shot and the injuries noted hereinabove serial Nos.5, 6 and 7 are the exit wounds of injury No,
1. It is important to note that admittedly accused Abdul Sattar fired upon the deceased from a close vicinity but during the post-mortem doctor has not noticed any blackening on any of the entry wound, therefore, without any fear of doubt, inference can be drawn that entry wound must have been caused from a long distance. It is important to note that Abdul Sattar accused was found innocent by Raja Munawar Hussain, D.S.P. And Mr. Ahmed Yar Khan, S.P.
Who appeared as his defence witnesses before the trial Court. Ft may also be noted that a perusal of record reveals that yet another officer i,e, Muhammad Ishaq D.S.P. Had declared him innocent, however, he has not been produced in defence by the accused-respondents.
8. Similarly, as per the contents of F.I.R. Respondent Muhammad Aslam fired a shot on the sole and the fingers of right foot of the deceased whereas injury No,1 on right foot of the deceased is an exit wound, therefore, it also indicates a conflict between ocular testimony of both the eye-witnesses read with the F.I.R. And medical evidence. It is also important to note that this respondent i,e, Muhammad Aslam has also been found innocent by the Investigating Officer i,e, Mr. Ahmed Yar Khan, S.P. Who had recommended for his discharge and report so filed by him was verified by the Inspector-General (Punjab) and D.I.-G. Range (Crime).
9. It is also noteworthy that as far as Muhammad Shafique is concerned, no convincing evidence is available on record to saddle him with the liability of the commission of the murder.
10. Therefore, in view of contradictions in the ocular testimony and medical evidence the case of the prosecution has become doubtful, benefit of which of course has to be extended to the respondents and under the circumstances they have rightly been acquitted of the charge and as now they are enjoying presumption of double innocence in their favor therefore, in exercise of Constitutional jurisdiction under Article 185(3) of the Islamic Republic of Pakistan, we are not convinced to interfere in the judgment of the High Court.
' Thus, for the foregoing reasons, we see no force in this petition as such same is dismissed and leave declined.