' SYED ZAWWAR HUSSAIN JAFFERY, J.--- The petitioner through this criminal petition filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, seeks leave to appeal against the impugned judgment dated 6-11-2008 delivered by the learned Lahore High Court, Lahore, whereby Criminal Appeal No,1617 of 2004 filed by respondents Nos.1 and 2 was allowed and they were acquitted of the charge and, Murder Reference was answered in negative.
2. The brief facts are that respondents Muhammad Nawaz and Habibullah alias Pomi along with co-accused Muhammad Iqbal, Allah Ditta and Muhammad Nazir were' tried by the learned Judge, Anti-Terrorism Court-1, Gujranwala, in the case F.I.R. No,195 of 2002 dated 2-7-2002, registered at Police Station Ali Pur Chatha, District Gujranwala in respect of the offences under sections 302/148/109 and 201, P.P.C. Vide judgment dated 28-9-2004. Respondents Nos.1 and 2 were found guilty of killing Saifullah (deceased) and were convicted and sentenced to death under section 302(b), P.P.C. Read with section 7(a) of the Anti-Terrorism Act, 1997 with a direction to pay a sum of Rs,1, 00,000 as compensation to the legal heirs of the deceased or in default of payment thereof they were directed to undergo 6 months' S.I. However, three co-accused namely Muhammad Iqbal, Allah Ditta and Muhammad Nazir were acquitted of the charge through the same judgment by extending benefit of doubt to them. Respondents Nos.1 and 2 being aggrieved by the judgment of the trial Court challenged their conviction and sentence through Criminal Appeal No,1617 of 2004 whereas the petitioner/complainant Irshadullah challenged the same judgment to the extent of acquittal of Muhammad Iqbal, Allah Ditta and Muhammad Nazir vide Criminal Appeal No,465 of 2004. The trial Court also sent reference Murder Reference No,18-T of 2004 for the confirmation of death sentence awarded to respondents Nos.1 and 2. The Appellate Courts by consolidated judgment disposed of both the matters vide judgment dated 6-11-2008. The petitioner has only challenged the acquittal of respondents Nos.1 and 2 this petition. The appellate Court while delivering the judgment observed that the prosecution has failed to prove its case beyond any shadow of doubt and acquitted respondents Nos.1 and 2. Murder Reference was not confirmed and it was answered in negative. Criminal Appeal No,465 of 2004 was not pressed by the complainant; therefore, it was also dismissed. Hence these petitions for seeking leave to appeal.
3. Sardar Muhammad Ishaq, Senior. Advocate Supreme Court, appearing on behalf of the petitioner has contended that the learned appellate Court was not legally justified in acquitting respondents Nos.1 and 2 and the judgment dated 6-11-2008 is not sustainable under the law. The impugned judgment is unjust, illegal and arbitrary which has resulted in grave miscarriage of justice. He submitted that all the accused nominated in the F.I.R. Under aerial firing at the place of occurrence at the deceased. The incident was witnessed by complainant Irshadullah P.W.11 on 2-7- 2002 at 7-45 p.m. When all of a sudden Habibullah alias Pomi armed with 30 bore pistol, Muhammad Nawaz armed with .30 bore pistol, Muhammad Boota armed with 30 bore pistol, Muhammad Iqbal armed with repeater Nazir Ahmed armed with .12 bore gun and Allah Ditta armed with pump action turned up on the place of incident. Muhammad Iqbal (acquitted co- accused) raised a slogan that Saifullah be killed in order to take revenge of the murder of his brother. All the accused fired simultaneously on Saifullah which hit on the different parts of his body and fell down and died on the spot. Thereafter Nazir Ahmed sprinkled kerosene oil on the body of Saifullah and Muhammad Iqbal set the same ablaze. The motive behind the occurrence was regarding killing of the brother of the accused which was compromised by Saifullah (deceased) and the complainant by giving 4 Acres of land the dispute was compromised. The learned counsel further contended that Irshadullah and Attaullah entered into witness box as P.W.11 and P.W.12 respectively being eye-witnesses of the incident and deposed about the occurrence and certain recoveries. The appellate Court had wrongly disbelieved P.W.12 Attaullah being witness of the incident and extended the benefit to respondents Nos.1 and 2 by allowing their appeal. As per post- mortem report, there were 10 injuries on the person of the deceased. Five injuries were caused as incised wounds whereas rest were fire-arm injuries. As per opinion of the Medical Officer all the injuries were ante-mortem in nature and injuries Nos.4, 5 and 7 were fatal and death occurred due to shock. The prosecution examined 13 witnesses in support of their case. Respondents Nos.1 and 2 made their statements under section 342, Cr.P.C. Wherein they have denied the prosecution version and advanced their own version regarding their false implication. It was a blind murder committed in the darkness and they have been implicated falsely to fill in the blank of untraceable murder. However, they denied to appear as their own witnesses under section 340(2) Cr.P.C. While analyzing and appreciating the ocular evidence it was stated in the F.I.R. That the occurrence was witnessed by Irshadullah (complainant)/petitioner and 'P.W.12 Attaullah and Azhar Zaman P.W. Who was given up by the prosecution on the ground that he has been won over by the accused party.
Complainant Irshadullah is real brother of Saifullah whereas P.W.12 Attaullah is maternal uncle of the deceased. The appellate Court appraised the evidence and extended the acquittal to respondents Nos.1 and 2 without any justification and there was no contradiction between ocular testimony and medical evidence. The appellate Court has wrongly disbelieved the eye-witness Attaullah P.W.12, therefore acquittal of respondents Nos.1 and 2 may be set aside and the judgment of the trial Court may be maintained. In support of his arguments, he has relied upon the State v.
Rab Nawaz and another PLD 1974 SC 87 and The State through Advocate-General, Sindh v. Shankar 1997 SCM R 1000.
4. We have heard the arguments of the learned counsel for the petitioner, examined the judgment of the trial Court and the appellate Court and gone through the case-law cited at the Bar. As per available record, respondents Nos.l and 2 were arrested on 30-7-2007. Then on 11-8-2007 the Investigating Officer recovered pistol .30 bore P.4 and bloodstained Chhuri P.5 from Habibullah vide recovery memo. Exh.P.G. And also prepared a complaint under section 13 of the Arms Ordinance, 1965. He also recovered .12 bore gun P.6 from Muhammad Nawaz respondent No,1 vide recovery memo. Exh.P.E. And recorded statement of the witnesses and submitted the report under section 173, Cr.P.C. Learned counsel had read the deposition of P. W.12 Attaullah in. Court where the said witness has stated that Habibullah inflicted blows of Chhuri on the deceased when he was lying on the ground but in the cross-examination he has admitted as under:--- "1 do not know where the complainant was at the time of recording of my deposition. After 12/10 minutes of the occurrence my son took the complainant inside my house. He remained inside my house till the arrival of the police. Police came at the spot after 1-1/2/1-3/4 hours of the occurrence.
' He further admitted in the cross-examination as under:--- "After the occurrence my conversation about the occurrence took place with the complainant after 4/5 days of occurrence. The complainant did not meet me 4/5 days after leaving the place of occurrence. I do not know when he had got registered the case. After 4/5 days of occurrence. I came to know that the case regarding this occurrence stands registered."
' The occurrence took place in front of the shop of Naveed who is milk seller. The other shop keepers left their shops open and escaped from there after seeing the occurrence. Twelve persons were present at the time of occurrence who fled away from the scene. The incident had taken place at the fag end of the day and the witness had alleged that he has seen the occurrence from a distance of 70 feet. Therefore the solitary statement of P.W. Attaullah cannot be believed. The empties recovered from the place of occurrence were sent to the Forensic Science Laboratory before the arrest of the accused and recovery of the pistols and other material was found positive from the Forensic Science laboratory which itself is quite unbelievable. The evidence of Irshadullah (complainant) is not matching with the evidence of Attaullah P. W.12. As evidence of Irshadullah complainant and P.W. Attaullah the occurrence was seen by them from behind the plank of the door, The trial Court on the basis of prosecution evidence extended acquittal to 'Muhammad Iqbal, Allah Ditta and Muhammad Nazir. The trial Court came to the conclusion that both the parties are not giving true account of occurrence. P.W. Azhar Zaman was also stated as witness but he was given up by the prosecution as being won over. There is another circumstance that as per F.I.R. The petitioners were armed with weapons but it is nowhere alleged that that they were armed with sharp edged weapon. The medical evidence straightway contradicted the contents of the F.I.R. All the accused nominated in the F.I.R. Were attributed the role of fire-arm injuries to the deceased whereas as per opinion of the Medical Officer there were only 5 fire-arm injuries which were caused by pistol/gun weapon. This is obvious that alleged eye-witnesses did not see the occurrence therefore sharp edged injuries sustained by the deceased could not be explained at the time of lodging F.I.R. It is apparent that after receipt of the post-mortem report the eye-witnesses including the complainant took another plea and a different view before the trial Court. Therefore the matter itself suggests that complainant makes his testimony doubtful. As per cross-examination the complainant did not own any house in the area of place of occurrence. He may be a chance witness but he did not disclose his presence at the house of Attaullah P.W.12. The deceased was sitting in front of the shop of Naveed and there were several shops but no independent witness has been cited by the prosecution. The appellate Court while delivering acquittal judgment has observed that the complainant and P. W.12 Attaullah did not see the occurrence at all and their statements were excluded from the consideration. There was a glaring and irreconcilable contradiction between the ocular testimony and medical evidence. The Investigating Officer while preparing inquest report has admitted that he had mentioned in the said report that the deceased was injured by firearm. P.W. Attaullah and complainant Irshadullah are close relatives of the deceased and the respondents had a background of enmity of previous murder which closed on the basis of compromise. P.W. Azhar Zaman being eye-witness who is maternal uncle of the complainant was dropped by the prosecution as being won-over witness. The place of occurrence was located in a populated area but no independent witness was cited to support the prosecution case. The appellate Court has rightly disbelieved the prosecution evidence and observed that incident was un-witnessed other than the alleged witnesses examined by the prosecution. We have minutely examined the ocular evidence of the complainant and P.W.I2 Attaullah. The Appellate Court had rightly disbelieved the ocular testimony, recovery of the weapons along with report of Forensic Science Laboratory. There is no illegality or infirmity in the impugned judgment and respondents Nos.1 and 2 were rightly acquitted from the charge and there is no miscarriage of justice. On the contrary the appeal was accepted as prosecution had failed to prove its case beyond any reasonable shadow of doubt.
5. In view of the foregoing reasons, facts and circumstances, we see no merit in this petition which is dismissed and leave to appeal refused.