' TASSADUQ HUSSAIN JILLANI, J.--- This order shall dispose of and deal with the following petitions:--
(i) Criminal P.L.A. No,832-L of 2002 filed- Jahangir and Shehbaz Masih, convicts (it has become infructuous to the extent of Jahangir convict as he has died).
(ii) Criminal P.L.A. No,433-L of 2002 filed by Farhat Azeem complainant against the acquittal of the accused/respondents and for awarding lesser sentence to Shahbaz convict.
(iii) Criminal P.L.A. No,969-L of 2002 filed by the State against the acquittal of Asmatullah and others.
2. The afore-referred petitions are directed against the judgment of the learned Division Bench of the Lahore High Court, dated 26-9-2002 vide which while acquitting five out of seven convicts it maintained the conviction and death sentence of Jahangir (since dead) and converted the death sentence of Shehbaz Masih to life imprisonment. The amount of compensation awarded and sentence in lieu thereof was however, maintained.
3. The prosecution story giving rise to the instant case is that a case was registered vide F.I.R.
No,449 of 1996, dated 7-8-1996 in Police Station Chak Jhumra, District Faisalabad on the statement of Farhat Azeem, P.W.9 who alleged as under:-- "On the night of occurrence, till 11-00 p.m. The complainant, his father Asmat Ullah and paternal- grandfather Chaudhry Nawab Khan and paternal-uncle Muhammad Yagoob had kept sitting in the courtyard of their "Dera". When his father, grandfather and uncle went to sleep, the complainant also proceeded to his residential house, situated near the said "Dera", for sleeping.
However, he was still not asleep when around 12-30 a.m. He heard the sound of firing from the side of the "Dera". He came out running and saw four persons equipped with fire-arms running towards the West from the side of the "Dera. The complainant went to the courtyard of the "Dera" and saw his father Asmat Ullah lying there, smeared in blood. His left shoulder was bleeding. He tried to support him but by then he had succumbed to the injuries."
4. The F.I.R. Was registered at 2-30 a.m. And none was named as an accused. However, the case of the prosecution is that the same night at about 2-30/2-45 a.m. Statements of two prosecution witnesses natnely Sarfraz Ahmad son of Abdul Rehman P.W.12 and his father Abdul Rehman P.W.13 were recorded at the spot. P.W.12 stated as under:-- "About one year and seven months ago, at about 12-30 midnight I came to the roof of my Kotha after viewing the T.V. My. Father Abdur Rehman P.W. Was also lying awake on his cot at that roof. In the meantime, I heard the gate, of the Dera of Asmatullah son of Nawab Khan deceased being opened. The electric bulbs were lit in that Dera. Asmatullah deceased was lying asleep on his cot in that Dera. I saw Ghulam Rasul, Jahangir, Muhammad Nawaz and Shehbaz Masih accused entering the courtyard of the Dera of the deceased. They were armed with .12 bore gun each. I saw Shehbaz Masih accused pointing the cot of Asmatullah deceased to his co-accused Jahangir accused present in the courtyard went near Asmatullah deceased and fired at him with his gun hitting the deceased on his right shoulder, Jahangir accused reloaded his gun. Thereafter, all the four accused left the courtyard towards west waiving their arms."
5. During the trial inclusive of the afore-referred two eye-witnesses the prosecution examined 20 witnesses, which included the doctor and the Investigating Officer. The learned trial Court convicted Jahangir and Shehbaz, Masih under section 302(b), P.P.C. And sentenced them to death The accused Ghulam Rasool, Nawaz, Asmat Ullah were also convicted under section 302(b), P.P.C.
And sentenced to life imprisonment and a compensation amount of Rs,30,000 to be paid to the legal heirs of the deceased. The appeals except that of Jahangir convict before the High Court were partly allowed in terms indicated in para.1 above.
6. The learned counsel for the convict Shehbaz Masih, Mr. Sardar Muhammad Latif Khan Khosa submitted that it was an unseen occurrence; that neither any accused was named in the F.I.R. Nor any motive was alleged; that the prosecution sought to prove its case through P.W.12 and P.W.13 who claimed to be eye-witnesses but their credibility is open to question as they neither raised any alarm at the time of occurrence nor they informed the complainant about the same although they were next door neighbours and that the prosecution had failed to prove its case beyond doubt to sustain conviction on a capital charge.
7. The learned counsel for the complainant seeks leave to appeal against the judgment of the Lahore High Court insofar as it acquitted the co-accused and commuted the sentence of death of Shehbaz Masih to life imprisonment. He submitted as under:--
(i) that having believed the prosecution witnesses qua Jahangir and Shehbaz Masih convicts, it was not open for the High Court to acquit the co-accused on the same set of evidence;
(ii) that the impugned judgment does not spell out any reason whatsoever for either acquittal of the respondents or of awarding lesser sentence to Shehbaz Masih;
(iii) that the learned High Court has failed to appreciate that a specific charge was framed under section 449, P.P.C. Evidence was led but no finding has been given either by the trial Court or by the High Court;
(iv) that the learned High Court failed to take note of the fact that respondents remained fugitive to law and this piece of evidence was corroborative of their criminal conduct. In support of the submissions made, the learned counsel relied on Lalai alias Dindoo and another v. The State of U.P.
AIR 1974 SC 2118; Mst. Hamida Bano v. Ashiq Hussain and State and 4 others PLD 1963 SC 19 and Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178.
8. The learned Additional Advocate-General in support of the petition filed by the State submitted that the finding of acquittal is devoid of any reasoning; that the ocular account of prosecution case was furnished by the natural witnesses who inspired confidence and their testimony could not be discarded just because they reached to the occurrence in a manner and their evidence cannot be discarded. The evidence of conspiracy was credible and the High Court has not examined it in its true perspective.
9. We have gone through the impugned judgment in the light of the submission made by both the learned counsel.
10. Having heard the learned counsel for the petitioner convict in Criminal Petition No,832-L of 2002, we are persuaded to ask the learned counsel for the complainant as to whether he would like to make his submissions with regard to this petition to which he expressed his inability as he had no prior notice. We have considered the submissions made by the petitioner's learned counsel in the light of evidence on record. We are of the prima facie view that petitioner Shehbaz Masih's conviction requires reappraisal of evidence as it is based on the ocular testimony of P.W.12 and P.W.13 who though neighbourers of the deceased were neither named in the F.I.R. As witnesses nor they informed the complainant about the occurrence leaving the latter to lodge an F.I.R. Without naming any accused. Moreover, the role attributed to the petitioner was merely that of pointing out the cot of the deceased. A Leave is granted in Cr.P.L.A. No,832-L of 2002 to consider, inter alia, whether the conviction could be based on the evidence led by the prosecution.
11. Coming to Cr.P.L.A. No,433-L of 2002 and Cr.P.L.A. No,969-L of 2002, we note that the learned High Court had considered the evidence led by the prosecution. We have gone through the evidence ourselves as well and find that the impugned judgment insofar as it acquits the respondents is neither arbitrary nor perverse and is not against the weight of evidence led by the prosecution. The arguments B that the Court should have proceeded against the respondents under section 449, P.P.C. Loses sight of the fact that respondents have been acquitted; as the evidence qua them was found not worth of credit. A specific finding regarding this was therefore uncalled for. There is nothing on record to indicate that respondents remained fugitive to law before the conviction rendered by the trial Court. An accused is presumed to be-innocent and if he is acquitted in trial or appeal he earns a double presumption of innocence and a heavy burden lies on the prosecution to rebut the said presumption. Nothing has been said or pointed out in the evidence led to persuade us to hold that the said onus has been discharged. In these circumstances, both the petitions D (Cr.P.L.A. No,433-L of 2002 and Cr.P.L.A. No,969-L of 2002) are dismissed and leave is refused.