SYED SHAHBAZ ALI RIZVI, J.--Respondent No.6 Mehmood has died on 27.07.2012 and to his extent this appeal already stands abated vide order dated 16.10.2012. Appellant Muhammad Sarwar has also died; no one is appearing on behalf of the legal heirs of the appellant even after issuance of repeated notices. Ch. Anwaarul-Haq Pannun, Advocate, who had filed this appeal on behalf of the appellant, is also not ready to pursue this matter for want of instructions after the death of the appellant. It is an old matter pertaining to the year 2001, therefore, we have no other option except to decide the same after hearing the learned Law Officer and the learned counsel for the respondents.
2. Through the impugned judgment dated 15.02.2001 the learned Special Judge, Anti-Terrorism Court No.IV, Lahore has acquitted the respondents from the charges in a private complaint under Sections 302, 365, 148, 149, P.P.C. Relating to case FIR No.192/1999 dated 19.07.1999 under Sections 302, 365, P.P.C., registered at Police Station Gowalmandi, Lahore.
3. As per contents of the complaint, in the year 1990, accused Mehmood and Muhammad Akram alias Chhinda etc. Committed murder of the son of the complainant namely Muhammad Farooq and caused injuries to his another son namely Muhammad Tanveer; regarding the said occurrence the complainant got registered a criminal case, however, the accused Mehmood etc. Were acquitted by the learned trial court; on 22.04.1998, Muhammad Akram alias Chhinda (one of the accused in the case of the complainant) was murdered, regarding which, accused Mehmood etc. Got registered a criminal case against the complainant and his sons Muhammad Tanveer, Qaiser Farooq and Muhammad Rizwan at Police Station City Narowal and due to fear of the accused party the complainant left the village along with his family; on 23.11.1998, for the purpose of appearing before the police after obtaining pre-arrest bail from the Lahore High Court, the complainant along with his sons gathered at 3-Katcha Nisbat Road, near Diyal Singh College, Lahore, where Qaiser Farooq, son of the complainant, was residing; they also called Zaheer Ashraf, Qamar Zaman, Tariq, Muhammad Abbas and Asghar Ali at the said residence and they all reached there; complainant along with Muhammad Tariq was sleeping at upper floor of the building whereas all the others were sleeping in a room at the ground floor; at about midnight time, door of the house was knocked which was opened by the son of the complainant; they saw that accused Nadeem, Mehmood, Irfan, Rai Zameer-ul-Haq Inspector, Amjad constable, Shaukat Ali constable along with three unknown police constables were standing there while armed with firearms; all the accused caught hold the sons of the complainant namely Muhammad Tanveer, Qaiser Sultan and Rizwan and put them in an official vehicle; complainant remained safe because of his presence at the upper floor and on coming to know the situation he directed Zaheer Ashraf etc. To follow the police; that on the next day at about 10/11 a.m. Zaheer Ashraf etc. Returned and told the complainant that when they reached near C.I.A office, Sheikhupura, they saw that accused Muhammad Ayub and Latif were standing there along with the accused police officials and they took the sons of the complainant along with another person namely Afzal alias Nadeem in a vehicle towards Mauza Gajiana Nau and committed their murder at about 06:30 a.m. By making firing near Pulli Motorway; that the accused-police officials in connivance with the other accused committed the murder of the sons of the complainant and in order to save their skin gave it a colour of police encounter and got registered a false case FIR No.480/1998 dated 24.11.1998 under Sections 354, 324, 148, 149, P.P.C. And Section 13 of Arms Ordinance No.XX of 1965 at Police Station Khanqa Dogran District Sheikhupura.
4. Through this appeal against acquittal, it is the claim of the appellant that the impugned judgment passed by the learned trial court is against law and facts; that the accused have failed to prove the circumstances of their claim of private defense; that a miscarriage of justice has ensued because of passing of a perverse judgment by the learned trial court in the case of the appellant; that the impugned judgment is based upon surmises and conjectures and is result of misreading and non-reading of available record.
5. The learned Deputy Prosecutor General, at the very outset, states that the judgment delivered by the learned trial court is based upon sound reasoning calling for no interference by this Court and he supports the same.
6. On the other hand, learned counsel for the respondents contends that the witnesses produced by the prosecution are interested and chance witnesses and their testimony does not find corroboration from any independent source; that in fact the deceased persons opened firing at the police party when their car was tried to be stopped and in self defence police officials made firing, thus all the culprits shot dead in result of an encounter; that no one amongst the alleged PWs had witnessed this occurrence, however, the complainant party falsely involved the respondents in this case to pressurize the police by setting up a false motive; that the evidence produced by the prosecution in this case was not sufficient to convict the respondents, therefore, they have rightly been acquitted by the learned trial court.
7. Arguments heard. Record perused.
8. We have noted that the complainant of this case is not the eye-witness of the occurrence of abduction/murder of the deceased and the prosecution case mainly rests upon the evidence of PW-2 Zaheer Ashraf who claims that he was present with the complainant at the residence i.e. 3- Katcha Nisbat Road, Lahore when the deceased (sons of the complainant) were taken away by the police and that on the asking of the complainant he followed the accused/respondents. PW-2 claims to be resident of main Raiwind Road, Lahore at a distance of about 14-K.M from 3-Kacha Nisbat Road, Lahore and there was no occasion for him to stay during the night at 3-Kacha Nisbat Road, Lahore. The conduct of PW-2 being unreasonable does not appeal to reason as 3-Kacha Nisbat Road, Lahore is a thickly populated place where public remains present round the clock.
PW-2 has claimed that he chased the deceased along with the other PWs in a Taxi car, but driver of the Taxi car has not been produced. The learned trial court while taking into consideration Article 129(g) of Qanun-e-Shahadat Order, 1984 has rightly disbelieved the evidence of PW-2. Learned trial court has observed as under:- "All these attending circumstances came to the irresistible conclusion that Zaheer Ashraf, who is star witness in this case, has neither seen 3-Katcha Nisbat Road, Lahore from where the deceased were allegedly abducted nor the CIA Staff Sheikhupura, where they were allegedly confined. Zaheer Ashraf PW-2 admits during cross-examination that November 1998 was a foggy month and the occurrence of murder took place at about 6.00 a.m. Or 6.30 a.m. i.e. Almost at the time of sunrise.
He claims that he saw the occurrence at a distance of 10-acres which is impossible to witness in a foggy darkness. This version of the PW-2 is otherwise contradictory to his earlier statement in as much as earlier witness categorically states that while chasing the accused, they were at a distance of 11-1/2 K.M. From the accused. Zaheer Ashraf PW is unable to specify the weapon or to provide description of the firearms used by the police party in the occurrence. He is also unable to explain who received injuries at the hands of whom. No injury has been specified by him to any of the accused.
' Zaheer son of Sardar, who has been produced as DW-1 by the accused, was and is still tenant at 3-Katcha Nisbat Road, Lahore. The case of the prosecution is that deceased and the complainant along with the witnesses were present at 3-Katcha Nisbat Road, Lahore from where the deceased were allegedly abducted, taken to CIA Staff Sheikhupura and thereafter were shot dead at Gajiana Nau. But DW-1 totally negated the case of prosecution deposing that neither the deceased nor any witness had assembled at his residence during the night between 23/24.11.1998 at 3-Katcha Nisbat Road, Lahore and no police party ever visited this building. He has categorically stated none had abducted the deceased from that building and he remained in the said building on that night."
The learned trial court has rightly concluded that the deceased in this case were record-holders and had the history of involvement in number of criminal cases including murder, dacoity and possessing illicit arms etc. And they were killed in a genuine police encounter when the police party made firing in their self-defence, whereas the private accused/respondents were involved by the complainant on account of their previous enmity with him. After going through the impugned judgment, we are of the considered view that the learned trial court has given convincing and plausible reasons for acquittal of the respondents after taking into consideration the case set up in the private complaint. It has been held by the Hon'ble Supreme Court of Pakistan time and again that one tainted piece of evidence cannot furnish any corroboration to another tainted piece of evidence; reference in this regard is made to the case of Khalid Javed and another v. The State (2003 SCM R 1419).
9. In view of all above, the findings of the learned trial court cannot be said to be the result of any misreading or non-reading of the evidence and we find that acquittal of the respondents is based upon cogent analysis and appreciation of the evidence available on the record. It is settled principle of the criminal dispensation of justice that when an accused is acquitted from the case after a regular trial, he enjoys double presumption of innocence and his acquittal cannot be disturbed without any strong and exceptional reason. In this context we rely on the cases of Haji Amanullah v. Munir Ahmed and others (2010 SCM R 222) and Iftikhar Hussain and others v. The State (2004 SCM R 1185). Resultantly, this appeal being devoid of any merit is hereby dismissed.