AALIA NEELUM, J:- The appellants, namely, Muhammad Arshad alias Tundda son of Muhammad Rafique and Ameer Ali alias Meeru son of Mehmood Ahmad, both Jaat by caste, residents of Chak Maili Burji, Police Station Sadar Sangla Hill, District Nankana Sahib, have preferred appeals, who were involved in case F.I.R. No.277 dated 04.7.2009, offence under Section 302, 324, 337/U.D, 148, 149 P.P.C., registered at Police Station Sadar Sangla Hill, District Nankana Sahib and was tried by the learned Addl. Sessions Judge, Sangla Hill, District Nankana Sahib. The learned trial court seized with the matter in terms of judgment dated 17.03.2012 convicted the appellants as under:-
1. Muhammad Arshad alias Bawoo Tundda, appellant (in Crl. Appeal No.540/2012)
Under Section 302 (b) P.P.C. read with section 34 P.P.C., and sentenced him to death. The appellant/convict was also burdened to pay Rs.1,00,000/- as compensation to the legal heirs of Shahid Maqbool, deceased as required under Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months each.
Under section 324 read with section 34 PPC for causing injuries to Shakir Mehmood PW and sentenced to 10 years R.I. and also a fine of Rs.20,000/- and in case of default in payment thereof, to undergo S.I. for three months.
2. Ameer Ali alias Meeru, appellant (in Crl. Appeal No.628/2012)
Under Section 302 (b) P.P.C. read with section 34 P.P.C., and sentenced him to life imprisonment. He was also burdened to pay Rs.1,00,000/- as compensation to the legal heirs of Shahid Maqbool, deceased as required under Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months each.
Under section 324 read with section 34 PPC for causing injuries to Shakir Mehmood PW and sentenced to 10 years R.I. and also a fine of Rs.20,000/- and in case of default in payment thereof, to undergo S.I. for three months.
Under Section 337-D P.P.C. for causing Jaifah to Shakir Hussain, injured/PW and shall be liable to pay Arsh which shall be 1/3rd of the Diyat and he was also punished with imprisonment for five years as Tazeer. Ameer Ali alias Meeru, appellant was also liable to pay Arsh for causing Itlaf of teeths of Shakir Hussain, injured PW Under Section 337/U P.P.C. which shall be 1/10th of the Diyat. He is also liable to pay Arsh which shall be 10% of the Diyat for Shujjah Hashima Under Section 337/A(iii) PPC on the person of Shakir Hussain and sentenced to imprisonment for five years as Tazeer.
Ameer Ali alias Meeru, appellant was also convicted under section 337-F(i) PPC for causing Ghair Jaifa Damyah on the person of Shakir Hussain and he is liable to pay Daman of Rs.10,000/- and also punished with imprisonment for one year as Tazeer.
All the sentences shall run concurrently. The appellants are also extended benefit of section 382-B Cr.P.C.
2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Arshad alias Bawoo Tundda, appellant has assailed his conviction and sentence through Crl. Appeal No.540 of 2012 whereas the appellant, namely, Ameer Ali alias Meeru has challenged his conviction and sentence by filing Crl. Appeal No.628 of 2012.
3. Apart from, the complainant has filed PSLA No.140/2012 challenging the acquittal of respondents No.1 to 5 passed by the learned trial court with the prayer to set aside the judgment dated 17.3.2012 to the extent of respondents No.1 to 5 and they be also convicted and sentenced in accordance with law.
4. The learned trial court has forwarded Murder Reference No.232 of 2012 for confirmation of death sentence inflicted upon Muhammad Arshad alias Bawoo Taundda/convict in terms of Section 374 of Cr.P.C. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
5. Prosecution story, as portrayed in the F.I.R. (Exh.PA) lodged on the complaint (Exh.PB) of Ali Sher, complainant/(PW-1) is that on 04.07.09, he along with Iftikhar Ali, Abdul Wahid, Shahid Maqbool and Shakar Hussain were returning from Mandi Safdarabad to their village by two motorcycles. Shahid Maqbool and Shakar Hussain were boarded on motorcycle No.2743 LEM whereas on the other motorcycle bearing registration No.4157-LEZ the complainant, Abdul Wahid and Iftikhar Ali were following them. At about 6:00 p.m. when they entered from canal side in the village, Arshad Ali alias Bawoo Tundda etc while armed were sitting in front of their house. On seeing Shahid Maqbool and Shakir Hussain, Arshad Ali alias Bawoo Tundda armed with Kalashnikov, Ameer Ali alias Meeru armed with Kalashnikov, Faisal Mehmood armed with 8 mm, Javed Iqbal armed with repeater 12-bore, Abdul Waheed armed with pistol 30-bore and Khawar Abbas armed with rifle 44-bore started firing with their respective weapons upon Shahid Maqbool and Shakar Hussain. They stopped their motorcycle and found that Master Muhammad Rafique raised Lalkara that today Shahid Maqbool etc be not spared alive and they be taught a lesson for the murder of his son, Zulfiqar. In the meantime, Arshad Ali alias Bawoo Tundda made a burst fire with his Kalashnikov at Shahid Maqbool whereas Ameer Ali alias Meeru made a burst fire with his Kalashnikov which hit Shakar Hussain. Both of them fell down from the motorcycle in injured condition. Thereafter, all the accused made firing hitting Shahid Maqbool and Shakar Hussain with their respective weapons. On hearing hue and cry, many persons came there whereas the accused persons fled away while firing and raising lalkaras. Shahid Maqbool succumbed to the injuries at the spot whereas Shakar Hussain sustained serious injuries and he was shifted to Allied Hospital, Faisalabad for medical treatment.
The motive behind the occurrence was old blood fuel between the parties but compromise has been effected. The accused persons despite reconciliation nursed a grudge and committed the murder of Shahid Maqbool and caused injuries to Shakar Hussain.
6. After registration of the case, the police conducted usual investigation. Initially, Abdul Khaliq, SI/Investigating Officer (CW-7) conducted the investigation. He (CW-7) stated that on 4.7.2009 after receiving the information about the occurrence, he (CW-7) reached at the place of occurrence and recorded the statement (Ex.PA) of Ali Sher, complainant and sent the same for formal registration of the F.I.R. (Ex.PA) through Ghulam Mustafa 699/C to the police station. He (CW- 7) prepared the inquest report (Ex.CW-7/B) and injury statement (Ex.CW-7/C). He (CW-7) also drafted application (Ex.CW-7/D) for conducting post mortem examination and handed- over the dead body of the deceased through Ahmad Ali 112/C and Matloob Aftab 726/C to the hospital for post mortem. The Investigating Officer (CW-7) inspected the place of occurrence and prepared un-scaled site plan (Ex.CW-7/E) and secured the blood stained earth from the place of occurrence vide recovery memo (Ex.PF). He (CW-7) collected 47 empties from the place of occurrence of different caliber and taken into possession vide recovery memo (Ex.PG). He (CW-7) also took into possession the blood stained clothes of the complainant Ali Sher vide recovery memo (Ex.PJ) and recorded the statements of the PWs under section 161 Cr.P.C. On 5.7.2009 he (CW-7) again along with the police officials visited the place of occurrence where Ahmad Ali 112/C and Matloob Aftab 726/C handed over to him the last worn clothes of the deceased which were taken into possession vide recovery memo (Ex.PJ). The said constables also handed over to him a sealed phial which was taken into possession vide recovery memo (Ex.PK). The said constables also handed over to him dead body of the deceased at the place of occurrence which was handed over to the legal heirs of the deceased. On 6.7.2009 he (CW-7) along with draftsman Khalid Mehmood went to the place of occurrence. On 11.7.2009 he (CW-7) went to Allied Hospital, Faisalabad for recording the statement of injured Shakir Hussain under section 161 Cr.P.C. He (CW-7) also took into possession blood stained clothes of the injured vide recovery memo (Ex.PM), attested by Iftikhar and Mudassar PWs.
On 27.7.2009 he (CW-7) received the medicolegal report of Shakir Hussain containing the injuries which were subsequently declared to be falling under section 337-A(iii), U, D, F(i) PPC and consequently he (CW-7) added the said Sections during his investigation. He (CW-7) concluded his investigation on 9.8.2009. According to his investigation , Muhammad Rafique, Muhammad Javaid and Abdul Waheed were not found at the place of occurrence and at the relevant time, they were found to be present at their shops at Lahore. During investigation Khawar Abbas accused was also not found at the place of occurrence at the time of occurrence and he was found in City Sangla Hill at the relevant time. Arshad, Ameer Ali and Faisal Mehmood accused along with two unknown accused persons were found involved by the Investigating Officer (CW-7) in the commission of offence. He (CW-7) also prepared site plan of the place of recovery (Ex.CW- 7/F). On reaching to police station, he (CW-7) handed over the case property to the Moharrar and the accused was detained in the lock up in accordance with law. On 11.8.2009 the Investigating Officer (CW-7) was transferred under the order of DPO and the case was handed over by him to the Moharrar of police station.
7. On 23.9.2009 the investigation of this case was entrusted to Muhammad Ashraf, ASI (CW- 9). He (CW-9) stated that after perusing the file, two accused persons were found absconders by him, namely, Arshad alias Bawoo Tundda and Ameer alias Meeru. The investigation remained with Muhammad Ashraf, (CW-9) till 05.10.2011 but thereafter, on the application of the complainant of the case, investigation of the case was transferred to Range Crime, Sheikhupura Region, Lahore SSP Rang Crime after completion of the investigation. He (CW-9) agreed with the investigation conducted by the local police. On 16.12.2009 again Moharrar of the Police Station handed over to him (CW-9) the case file on the order of the SHO concerned. On the same day, he (CW-9) prepared discharge-report regarding accused Javed Iqbal, Abdul Waheed, Rafique, Khawar Abbas upon the order of the SHO Police Station Sadar Sangla Hill. Thereafter, he (CW-9) presented the said discharge report before the learned Illaqa Magistrate who did not agree with the said report.
On 23.9.2009 SHO police station concerned prepared the challan to the extent of Muhammad Arshad alias Bawoo Tundda and Ameer Ali alias Meeru. On 17.02.2011 the learned Additional Sessions Judge, Sangla Hill, formally charged the appellants along with others to which they pleaded not guilty and claimed trial.
8. Initially, the report under section 173 Cr.P.C. was submitted before the learned trial court mentioning the accused Muhammad Arshad alias Tundda and Ameer Ali alias Meeru with red ink as proclaimed offenders whereas accused Javed Iqbal, Abdul Waheed, Khawar Abbas and Master Muhammad Rafique in Column-II, however, name of Faisal Mehmood was incorporated in Column No.III of the challan. Later on, Ameer alias Meeru and Arshad Ali alias Bawoo Tundda were arrested by the police and their report under section 173 Cr.P.C. was submitted mentioning their names in Column No.III too.
9. Being aggrieved of the conduct of police, the complainant filed a private complaint which too was sent up and after recording the cursory evidence of the complainant and having perused the record, all the seven accused persons were prima facie found connected with the commission of murder so they all were summoned to face the charge. On 17.02.2011 the learned Additional Sessions Judge, Sangla Hill, formally charged the appellants along with others to which they pleaded not guilty and claimed trial.
10. Prosecution in order to substantiate its case produced as many as eight (8) prosecution witnesses during the course of trial. Ocular account in this case consists of the statements of Ali Sher, complainant (PW-2) and Shakir Hussain-injured (PW-3). Tallat Mehmood, ASI (PW-1) deposed that on 4.7.2010 at about 7.15 p.m. Ghulam Mustafa 699/C produced before him written complaint drafted by Abdul Khliq, SI (CW-7) on the basis of which he (PW-1) chalked out formal FIR (Ex.PA).
Muhammad Aslam (PW-6) and Muhammad Ahsan (given up PW) are the recovery witnesses.
Muhammad Aslam (PW-6) stated that on 4.7.2009 he along with Muhammad Ahsan PW joined the investigation and in their presence, the police collected 47 empties of Kalashnikov P-1 (1-23), 8 empties of 12 bore gun P-2 ((1-8), 4 empties of 8mm rifle P-3 (1-4), three empties of 30-bore pistol P-4 (1-3) from the place of occurrence and secured the same vide recovery memo (Ex.PG) after reducing the same into a sealed parcel which was attested by him along with Muhammad Ahsan (given up PW). The police also secured blood stained earth from the place of occurrence vide memo (Ex.PH) which was attested by the same set of witnesses after reducing the same into a sealed parcel. The police also secured blood stained clothes of Ali Sher, the complainant (PW-2) comprising of Shalwar (P-5) and Qameez (P-6) vide recovery memo (Ex.PJ) which was attested by the same set of witnesses. Muhammad Aslam (PW-6) further stated that on 9.8.2009 he and Iftikhar (given up PW) came to the police station and joined the investigation of this case. Faisal Mehmood accused while in police custody made a disclosure that he could lead to the recovery of weapon of offence and he led the police party to his residential house and got recovered 8mm rifle (P-7) from an iron box (paiti) lying in the residential room of his house. Upon unloading the rifle (P- 7) five live bullets P-8 (1-5) were also recovered. The said rifle and live bullets were reduced into sealed parcel and secured by the police vide recovery memo (Ex.PK) attested by him and Iftikhar (given up PW). During the deposition of Muhammad Aslam (PW-6) learned counsel for the complainant raised objection that this witness was concealing the truth and giving wrong number of recovered empties and the learned trial court on 6.5.2011 again re-called PW-6 and on that date learned ADPP for the State stated that to correct the record according to the articles, de-sealed the empties after recording the same correction be made, therefore, the parcel of empties was de- sealed in presence of both the sides in the trial court which were 23 in number and empties of Kalashnikov (P-1) are numbered as 23. Ahmad Ali 112/C (PW-7) deposed that on 4.7.2009 Investigating Officer handed over the dead body of Shahid Maqbool to him (PW-7) along with Matloob Aftab (given up PW). He (PW-7) escorted the dead body of the deceased to the mortuary at Nankana Sahib due to night and lack of arrangement, the post mortem could not be conducted at night and on the next day i.e. 5.7.2009 the doctor conducted the post mortem examination on the dead body. After conducting the post mortem examination, the doctor handed over the last worn clothes comprising of vest P-9, shalwar P-10, kameez P-11 and one sealed phial. Investigating Officer prepared memo (Ex.PL) regarding the last worn clothes as well as one sealed phial vide recovery memo (Ex.PM) which was signed by him (PW-7) along with Matloob Aftab (given up PW).
Mudassar Hussain (PW-8) identified the dead body of Shahid Maqbool along with his father Muhammad Khan (given up PW). On 11.7.2009 the doctor handed over to him (PW-8) blood stained clothes of injured Shakir Hussain i.e. Shalwar (P-12), shirt (P-13) and bunyan (P-14) which were taken into possession by the Investigating Officer vide recovery memo (Ex.PN) which was signed by him (PW-8) and Iftikhar (given up PW). On 7.01.2011 the accused Arshad disclosed before the Investigation Officer in presence of Mudassar Hussain (PW-8) along with Iftikhar (given up PW) that the Kalashinkov which he used for murder of Shahid Maqbool, the deceased and injured Shakir (PW-3) were kept in his 'Patti' lying in his house which he could get recovered. The Investigating Officer took the accused Arshad and he (PW-8) along with Iftikhar (given up PW) accompanied them. The accused Arshad took the Investigating Officer to his house from where he led to the recovery of Kalashnikov lying in the 'Patti' from a room of his house after opening the main door with a key which was placed in a hole of the wall of his house. The accused Arshad after opening the patti got recovered the Kalashnikov (Ex.P-15) which he took into possession of the same vide recovery memo (Ex.PO) which was attested by Mudassar Hussain (PW-8) and Iftikhar (given up PW). The Investigating Officer also recorded their statements under section 161 Cr.P.C. After tendering the documentary evidence, the learned counsel for the complainant closed the prosecution evidence.
11. Dr. Riaz-ul-Hassan (PW-4), CMO, Allied Hospital, Faisalabad deposed that on 04.07.2009, he examined Shakir Hussain (injured PW-3). On examination, the doctor (PW-4) found following injuries:-
1. A fire arm entry wound 1cm x 1cm on left cheek.
2. A fire arm exit wound 1cm x 1cm on right side of nose.
3. A fire arm entry wound 1cm x 1cm on right side of nose.
4. A fire entry wound 1/2 cm x 1/2 cm on outer and back of right thigh middle part.
5. A fire arm grazing wound 1/2 cm x 1/2 cm on back of right elbow.
6. A fire arm grazing wound 1/2cm x 1/2cm on back of right forearm upper part.
Injury No.1 to 6 KUO. Referred to dental Surgeon. Surgeon and radiologist of Allied Hospital for expert opinion.
Declaration: As reported by the radiologist Dr. Jamil Ahmad vide X.Ray No.702 dated 16.07.2009, X.Ray Right thigh AP and lateral view, no fracture or joint dislocation were seen in the region of thigh. A metallic density shadow seen within proximal tibia.
X.Ray PNS (For maxillary wounds): Bone defect seen in the left maxillary bone. Need further evaluation of the region on C.T maxillary wounds.
As reported vide X. Ray No.720 dated 23.07.2009, CT scan PNS, CT maxillary bones plain. A fracture by lateral maxillary bones seen with bone defect in the anterior wall of right maxillary sinus.
Fracture nasal bones were also seen.
As reported by Dental Surgeon Dr. Naeem Murtaza vide No.9965 dated 27.07.2009, the clinical examination showed missing left upper central and lateral incisors and canine i.e alveolar bone of this area 123 also found depressed. X.Ray and CT scan also shows missing teeth, above injury due to external trauma.
Surgical notes No.3: Vide bed head ticket No.84496 dated 04.07.2009. As per report vide admin Registrar Surgical Unit No.3 Operation.
Exploratory laparotomy wound exploded on the face and tracheotomy done. Surgeon Dr. Ishaq and Dr. Zahid Iqbal and Assistant Dr. Fazal. A fire arm wound lateral to the left side of nose. A fire arm wound on left cheek communicating with nasal cavity and a fire arm wound below the right eye connecting with nasal cavity.
Two perforation in jejunum. Two liters of fecal stained fluid in the peritoneal cavity, the deep lacerated wound and single scar 1/2 cm x 1/2 cm on the back of right lumber region communicating peritoneal cavity. End to end the anastomosis have done jejunum. Repair of distal perforation. Homeostasis secured and abdomen closed.
Injury No.1 337/U, Shaju-i-Hasham Injury No.2 Shaju-e-Hashma Injury No.3 Jurah Jaifa Injury No.4,5,6, Jurah Ghair Jaifa Damia The weapon is fire arm.
MLC pertaining to the injured Shakir Hussain Ex.PE is correct carbon copy along with diagrams Ex.PE/1 which is signed by him.
Duration of injuries: Fresh on arrival.
12. Dr. Shabbir Ahmad, SMO (PW-5) deposed that on 04.07.2009 he conducted post mortem examination on the body of Shahid Maqbool. On examination, following injuries were made:- 1.A. A fire arm wound of entry 1cm x 1cm on the left side of the head 4cm above left ear. 1.B. A fire arm wound of exit 1.5cm x 1.5cm on the right side of the head 1cm front of the left ear brain matter was coming out of the wound.
2.A. A fire arm wound of entry 1cm x 1cm on the left side of the neck 6cm blow the left ear.
2.B. A fire arm wound of exit 2cm x 1.5cm on the left side of the neck 2 cm blow the right ear on dissection skill bones fractured brain damaged, on X.Ray of the skill metallic dust seen.
3.A. A fire arm wound of entry 1cm x 1cm on the front of the upper part of the right chest 1cm blow the right mid clavicular point.
3.B. A fire arm wound of exit 1cm x 1cm on back of the right chest on the upper part.
4.A. A fire arm wound of entry 1cm x 1cm on front of the right shoulder.
4.B. A fire arm wound of exit 1cm x 1cm on the back of the right shoulder.
5.A. A fire arm wound of entry on the front of the upper part of the arm.
5.B. A fire arm wound of exit on the back of the right arm.
6.A. A fire arm wound of entry 1cm x 1cm on the front of the upper part of the right forearm.
6.B. A fire arm wound of exit on the back of the upper part of the right forearm.
7.A. A fire arm wound of entry on the middle of the front of the right forearm.
7.B. A fire arm wound of exit on the back of the middle of the right forearm.
8.A. A fire arm wound of entry 1cm x 1cm on the front of the right side of chest 6cm blow the right mid clavicular point.
8.B. A fire arm wound of exit 2cm x 1cm on the right of lateral side of the chest 10cm blow the right armpit. 9.A. Six fire arm wounds of entry each measuring 1cm x 1cm in an area 7cm x 4cm on the front of the lest chest middle of the left arm on the dissection one pellet was recovered from the left chest.
10.A. A fire arm wound of entry 1cm x 1cm on the right side of the abdomen 2cm blow the right costal margin.
11.A. A fire arm wound entry 1cm x 1cm on the right flank 1cm above the right lilac crest.
12. A fire arm wound of exit 1cm x 1cm on the back of the left chest.
13. A fire arm wound of exit 1cm x 1cm on the right back 2cm above the right buttock.
After conducting the postmortem examination, the doctor had rendered the following opinion:- "All the above stated injuries were anti mortem and caused by fire arm weapons. Death was cased due to damage of brain, heart, liver spleen and kidneys. These injuries were sufficient to cause death of a person in ordinary course of nature. Probable time between injuries and death was within five minutes and between death and post mortem was within 15/20 hours."
13. Iftikhar Ali, eye-witness, Abdul Wahad, Muhammad Ahsan and Muhammad Khan (PWs) were given up as being unnecessary by the learned counsel for the complainant vide his separate statement and closed the prosecution evidence by tendering in evidence attested copies of report of Chemical Examiner No.3031/B dated 17.8.2009 and report of Forensic Science Laboratory No.1941/FSL dated 6.3.2010 as Ex.PP and Ex.PQ.
14. After closure of evidence of the complainant, the learned trial court examined the remaining ten witnesses mentioned in the calendar of witnesses of the connected State case as CWs whereas CW Mr. Zaeem Iqbal Sheikh, SSP Range Crime Branch was given-up.
15. Mansab Ali, ASI (CW-1) deposed that on 04.07.2009 a parcel of blood stained earth and crime empties containing 47 empties of different bores were handed over to him by the Investigating Officer Abdul Khaliq SI (CW-7). On 21.07.2009, he (CW-1) handed over the parcels to Muhammad Azam, 671/C for their onward transmission to the offices of FSL, Lahore and Chemical Examiner, Lahore and on the same day he (CW-1) deposited the same intact. Rafaqat Ali, ASI (CW-2) deposed that on 07.01.2011 the Investigating Officer handed over to him one sealed parcel said to contain one Kalashnikov which he kept in the Malkhana intact and thereafter on 17.01.2011 handed over the same to Muhammad Azam 671/C for onward transmission to the FSL, Lahore. Khalid Mehmood, draftsman (CW-3) deposed that on 06.07.2009 he visited the place of occurrence on the direction of the police and on the pointation of the PWs. On 10.07.2009, he (CW-3) handed over copy of the sealed site plan in triplicate to the Investigating Officer concerned. The drawing and notes are in his hand and bears his signatures and the same are Ex.CW/1 to 3. Muhammad Azam, DSP (CW-4) deposed that on 10.10.2009 he was posted as Inspector Regional Investigation Branch, Sheikhupura Region, Lahore. Investigation of case FIR No.277/2009 was entrusted to him by the orders of his seniors. He (CW-4) heard both the parties many a times during the course of investigation, so long as investigation remained with him. On each and every date of hearing, he (CW-4) produced both the parties SSP Regional Investigation. On 06.11.2009, he along with the SSP visited the place of occurrence and investigated the case. On 11.11.2009 he (CW-4) went to the District Jail, Sheikhupura and the accused persons who were confined in the jail, namely, Javaid Iqbal, Abdul Waheed, Khawar Abbas and Faisal Mehmood were made to join the investigation. He (CW-4) interrogated the accused persons confined there and ultimately on 18.11.2009 he (CW-4) agreed with the investigation carried out by the earlier SI Abdul Khaliq (CW-7). The accused, namely, Javaid Iqbal, Abdul Waheed, Khawar Abbas and Rafique were found not to be involved in the commission of offence during his investigation, whereas Faisal was found to be involved.
During investigation, Ameer Ali and Arshad Ali did not join the investigation. His (CW-4) findings of the investigation were subsequently verified by SSP Regional Investigation Branch as well as DIG, RPO, Sheikhupura Region. This case remained with him for the purpose of investigation from 10.10.2009 to 18.11.2009. Saif Ullah, SI (CW-5) deposed that on spy information he along with other police employees arrested accused Ameer Ali on 17.5.2010 and at 3.30 p.m. he confined him in the police lock-up. On 18.5.2010 after obtaining physical remand of Ameer Ali accused, joined investigation and made disclosure about the weapon of offence used in the commission of the offence and in presence of Ali Sher complainant and Iftikhar Ahmad (given up PW) went to the place of recovery and he got recovered Kalashnikov lying in the bushes within the area of Warra Lab Singh. Sabir Hussain, SI (CW-6) stated that on 22.8.2009 he got issued the warrants of arrest pertaining to accused Arshad alias Tundda and Ameer Ali alias Meeru which were entrusted to Farooq Ahmad 40/C who searched for the accused but they were not traceable. On 10.9.2009 he got prepared the incomplete challan against accused Faisal. On 31.12.2010 again investigation of this case was entrusted to him and on the same day, accused Arshad alias Tundda was already arrested in case FIR Nio.37/2010 of Police Station Shahkot who was produced before the learned Area Magistrate and with permission of the learned Area Magistrate, he (CW-6) after interrogation, formally arrested the accused in this case. The accused Arshad alias Tundda during the course of interrogation made a disclosure that he could lead to the recovery of weapon of offence and got recovered Kalashnikov P15 lying inside the iron chest in his residential room at Maili Burji which was taken into possession vide recovery memo (Ex.PN). He (CW-6) sent the accused to judicial lock up on 8.1.2011 and prepared the challan against him on 10.1.2011. Muhammad Azam 671/C (CW-8) deposed that on 21.7.2009, the Moharrar handed over to him two parcels said to contain blood stained earth soil and empties consisting 47 in number for onward transmission to the office of Chemical Examiner as well as Forensic Science Laboratory which he deposited in the concerned offices. On 19.8.2009 the Moharrar handed over to him a parcel said to contain rifle 8mm for onward transmission to the office of Forensic Science Laboratory which he deposited in the said office. On 17.1.2011 the Moharrar handed over to him a parcel said to contain Kalashnikov for onward transmission to the office of Forensic Science Laboratory which he deposited in the said office.
Allah Ditta 1199/C (CW-10) deposed that on 25.6.2010 Moharrar handed over to him a parcel said to contain Kalashnikov for depositing the same in the office of Forensic Science Laboratory which he deposited in the same in the said office intact.
16. After closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C., wherein Arshad Ali alias Bawoo Tundda, the appellant opted not to appear as his own witness in terms of Section 340 (2) Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence but also opted to adduce evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, Arshad Ali alias Bawoo Tundda, appellant made the following deposition:- "In the distant past there was an enmity between complainant party and that of the accused party and that due to the intervention and good offices of the notables of the Ilaqa and the village a compromise between the complainant party and the accused party was effected since the day of compromise no untoward had happened between the parties till the moment of the un-pleasant occurrence of the instant case. This compromise was in the benefit of both the parties for their future co-existence and peaceful life. The complainant party and the accused party since the day of compromise started living very amicably and in brotherly manner and used to participate in the sad and pleasant ceremonies of the parties. In the light of the compromise, the accused party had no motive of their own to do away with the life of the deceased of the instant case and to cause injuries to the PW Shakir Hussain."
Whereas the accused-Ameer Ali alias Meeru while replying to the specific question, why this case against him and why the PWs deposed against him, which reads as under: "I have been falsely implicated in this case by the complainant party. I have no motive either against the deceased, complainant or any of the PWs as I have never remained either complainant or PW or accused in any of the cases which remained pending between the parties since long. In fact I had agricultural land adjacent to the agricultural land of Shahid Maqbool deceased whereas I was having residential Ahata adjacent to that of Arshad Ali Tundda the accused and on account of enmity of the complainant party with Arshad accused, they restrained me to sell out the same to Arshad accused, however, I sold out the same which was dis-liked and resisted by the complainant party. Many years prior to the occurrence, I along with my family are settled ourselves at District Layyah after sell out of their agricultural land as well as the residential property situated in village Maili Burji. Since I have refused to the complainant party for not complying with the request to not to sell out the residential property to Arshad Ali accused, I have falsely been implicated in this case. I have no motive and no enmity whatsoever against the complainant party or any of his kith and kin. The PWs are related inter-se and they have deposed falsely against me on account of close relationship with the deceased, Shahid Maqbool."
17. Learned trial court after evaluating the evidence available on record found the version of the prosecution proved beyond any shadow of reasonable doubt against the appellants resulting into his conviction in the afore-stated terms.
18. The learned counsel appearing on behalf of the appellants has submitted that there is clear contradiction in ocular and medical evidence. It has also been submitted that the ocular testimony is at a great variance with the medical evidence and cannot be accepted. It has also been submitted that the prosecution has badly failed to prove that the appellant committed the occurrence. It has further been submitted that the testimony of injured-PW Shakir Hussain is not believable and the same has been recorded after a considerable delay. It has further been submitted that the post mortem examination of the deceased was conducted after a considerable delay which also creates doubt about the prosecution version. It has lastly been submitted that there was no motive for the accused persons to participate in the alleged occurrence.
19. Per contra, the learned counsel appearing for the complainant has argued that the impugned judgment of the learned trial court is depicting a plausible view on appreciation of evidence on record. The learned counsel for the complainant has vehemently argued that evidence of two eye-witnesses, namely Ali Sher (PW-2) and Shakir Hussain (PW-3) coupled with recovery of weapon of offence from the appellants is more than sufficient to bring home the guilt to the appellants. The learned counsel for the complainant has further argued that the impugned judgment and order of acquittal to the extent of the respondents No. 1 to 5 is result of perverse appreciation of evidence by the learned trial court and, therefore, the same needs to be corrected.
20. On the other hand, learned Deputy Prosecutor General has argued that there is no conflict in medical and ocular account as the injured witness stated that within his view a burst of Kalashnikov was made by both the appellants which negates the contention of the learned counsel for the appellants. The defence has itself proved the presence of the accused at the place of occurrence and making of fire shot with the weapons i.e. Kalashnikov by the appellants. The report of Forensic Science Laboratory regarding weapon recovered from the Ameer Ali alias Meeru is in positive and the prosecution has proved the same, as such the findings of the learned Addl.
Sessions Judge should not be interfered with.
21. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, the learned Deputy Prosecutor General.
22. We deserve it necessary to mention that no witness can reproduce in a mathematical manner about what he had earlier stated. With the passage of time the human memory fumbles and falters and certain improvements would appear in the testimony of most truthful witness.
Shakir Hussain (PW-3) is the injured witness, therefore, his presence at the place of occurrence cannot be doubted. Reading of the statement as a whole reveals that he has not changed the substratum of the prosecution version. It remains the same. It clearly indicates that so far as Muhammad Arshad alias Tundda and Ameer Ali alias Meeru accused are concerned they were very much involved in the crime in this regard. In the absence of any other cogent reasons there is no ground to disbelieve the testimony of Shakir Hussain (PW-3) who is basically a witness who can be described as a wholly truthful. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. On overall re-appreciation and assessment of the oral evidence on record, we are convinced that the version of the eye witnesses i.e. Ali Sher (PW-2) and Shakir Hussain (PW-3) is absolutely trustworthy and consistent with each other on the role of Muhammad Arshad alias Tundda accused-the appellant and Ameer Ali alias Meeru accused-the appellant and corroborating further with the medical evidence on record. In our opinion, even though the cross- examination to the eye witnesses, establishes presence of the accused at the time of the incident.
Once the accused admits his presence at the time of the incident, the onus would shift upon him to explain as to what had brought him at the place of occurrence armed with sophisticated weapons.
23. As per the evidence of Ali Sher (PW-2) and Shakir Hussain (PW-3) injured prosecution witness, the appellant-Ameer Ali alias Meeru had a Kalashnikov and made burst with his Kalashnikov which landed upon the person of Shakir Hussain (PW-3) and the injuries caused by him has been duly supported by the medical evidence. Shakir Hussain (PW-3) has also explained how he had received injuries. Shakir Hussain (PW-3) has also deposed regarding the participation of both the appellants and has explained what weapons they were carrying and how they had caused injuries to him and Shahid Maqbool-the deceased and has given full details of the incident. At the outset, it is to be noted that the injured prosecution witness-Shakir Hussain (PW-3) has withstood the exhaustive and searching cross-examination by the appellant. On scrutinizing the testimony of the victim, it is clear that no material discrepancies/infirmities could be elicited in his cross- examination, therefore, there are no valid reasons to disbelieve the same. The law is well settled that the evidence of injured witness has greater evidentiary value and unless compelling reasons exist, his testimony is not to be discarded lightly. It is significant to note that the incident took place at about 6.00 pm. at Maili Burji Chak No. 17 RB within the jurisdiction of Police Station Saddar, Sangla Hill, District Nankana Sahib, whereas Shakir Hussain (PW-3)-injured was shifted in a very serious condition at 9.00 pm at Allied Hospital Faisalabad. Shakir Hussain (PW-3) injured deposed during his examination-in-chief that he came into his senses after one weak and the Investigating Officer recorded his statement in the hospital and the statement was given when there was no time of deliberation or embellishment. There is no material on the record to show that Shakir Hussain (PW- 3)-injured was in his senses after the occurrence. The nature of injuries received by Shakir Hussain (PW-3) reveals that he was not able to talk and was in a very serious condition. In cross- examination of Shakir Hussain (PW-3) the defence has brought on record that the accused-the appellants were present at the place of occurrence and they also made fires from their weapons.
The material elicited from cross-examination of Shakir Hussain (PW-3) strengthens his version.
During cross-examination Shakir Hussain (PW.3) deposed as under:- "It is correct that most of the injuries were on the back of my back of my right arm. The witness explained that he also received many injuries on my face, neck and nose also. " He further deposed during cross-examination that, "All the accused were at the distance of about 20 to 30 feet when they made firing after falling us on the grounds. It is incorrect to suggest that all the accused made firing within two to three minutes to the tune of 500 fires. According to my estimate all the accused had made about 50/60 fire shots after we fell down. The accused were at the distance of 50/60 feet away from us when they opened fires for the first time. After crossing the canal thereafter comes the house of Arshad accused. When we reached near the house of Arshad accused the accused persons started firing upon us. The accused may have been watching us but we saw them only when we reached near them. It is incorrect to suggest that the accused persons started making firing on seeing us and lasted till we reached near the house of Arshad accused rather the accused started firing when we reached near the house of Arshad accused."
The Court can sift the chaff from the grain and find out the truth from the testimonies of the witnesses. Total repulsion of the evidence is, therefore, unnecessary. The evidence is to be considered from the point of view of trustworthiness. On the touchstone of the above said principle, it is crystal clear that minor discrepancies in the evidence of the witnesses are bound to happen and it is the duty of the court to sift the chaff from the grain and point out the truth from the testimony of the witnesses. The discrepancy regarding locale of injuries received by Shakir Hussain (PW-3)-injured witness and Shahid Maqbool-the deceased is concerned in the cross examination, Ali Sher (PW-2) replying to the suggestion deposed as under:- "It is incorrect to suggest that the accused persons made fires from front side but they fired from the side of their house." This part of cross-examination is suggestive of the presence of accused- persons in the whole episode Ali Sher (PW-2) further deposed during cross-examination that, "The accused were standing in front of their house. All the accused fired for about 1/2 minutes. Firstly Arshad made burst fire to Shahid, Ameer Ali made burst shot to Shakir, both fell down and the other accused also made firing. The accused persons before making burst fires by Arshad at Shahid and Ameer Ali at Shakir Hussain made aerial firing and not the aimed firing on the deceased as well as Shakir Hussain injured.".
24. The questions put in the cross-examination to Ali Sher (PW-2) and Shakir Hussain (PW-3) is regarding mode and manner in which the accused persons committed the occurrence, presence of the accused persons, making of fires from their weapons. These question leaves no room for doubt that appellants admit as a whole their presence and mode and manner of occurrence. This will clearly suggest the presence of the accused-Muhammad Arshad alias Tundda and the accused-Ameer Ali alias Meeru as admitted. However, Ali Sher (PW-2) had clarified through above deposition that how Shakir Hussain (PW-2)-injured witness and Shahid Maqbool-the deceased had received injuries. Therefore, as the clarification has been provided by Ali Sher (PW-2) and Shakir Hussain (PW-3)-injured witness the discrepancy regarding the same would not be material one.
25. The learned counsel for the appellants put much emphasis on the delay in conducting post-mortem examination of the deceased-Shahid Maqbool, which is 15 to 20 hours from the time of death. We have examined this aspect of the matter and one of the opinion that in the instant case, merely because the post mortem examination was conducted after a delay of 15 to 20 hours, it cannot be concluded that the prosecution has planted the aforesaid witnesses or has concocted the entire prosecution version. The evidence led by the prosecution has been examined cautiously and carefully, we have come to the conclusion that in this case, there is no delay on the part of the prosecution and same has sufficiently been explained by the prosecution. The alleged occurrence took place at about 6.00 p.m. at 04.07.2009. The complainant-Ali Sher (PW-2) has categorically stated that Shakir Hussain sustained serious injuries, the injured was taken to Allied Hospital, Faisalabad for medical treatment as saving life of injured is prime consideration than to report the matter to police whereas Shahid Maqbool died at the spot, therefore, the complainant-Ali Sher (PW-2) went to the Police Station and lodged the report (Ex.PB) at 6.40 p.m. whereas formal FIR (Ex.PA) was lodged at 7.15 p.m. Thereafter, the investigation Officer-Abdul Khaliq, SI (CW-7) went to the place of occurrence i.e. Maili Barji and he (CW-7) prepared injury statement (Ex.CW-7/C) and application for conducting post mortem examination (Ex.CW-7/D) and send the dead body of the deceased-Shahid Maqbool through Ahmad Ali, 112/C and Matloob Aftab 726/C to the hospital for post mortem. From the cross-examination of Abdul Khaliq, SI (CW-7) the material elicited by the defence is reproduced as under:- "Post mortem examination of the deceased was conducted on 05.07.2009. Now a days facility is available in the hospital for post mortem examination at night time".
On the other hand, Ahmad Ali, 112/C (PW-7) deposed during examination-in-chief that:- "I escorted the dead body of the deceased to the mortuary at Nankana Sahib due to night and lack of arrangement, post mortem could not be conducted at night. And on the next day on 05.07.2009 the doctor conducted the post mortem examination on the dead body."
We may note that there was not a single suggestion to PW-7 and CW-7 to the effect that in the year 2009 the facility of conducting post mortem examination of the dead bodies was available. In absence of such suggestion, admission of Ahmad Ali, 112/C (PW-7) that due to lack of arrangement, post mortem could not be conducted at night can be possible. The time which elapsed between the time of death and post mortem examination, was consistent with the time of occurrence and supports the prosecution case. The post mortem report (Ex.PF) and the statement of the doctor, it is clearly evident that the injuries on the deceased-Shahid Maqbool were found on the vital part of the body. According to the statement of Dr. Shabbir Ahmad (PW-5), the cause of death was all the ante-mortem injuries caused with fire arm weapon. The medical evidence fully corroborates the prosecution version.
26. At the time of site inspection Abdul Khaliq, SI (CW-7)-the Investigating Officer on 04.07.2009 took into possession 47 crime empties of different caliber (P-7/1-5) from the place of occurrence and prepared separate sealed parcel vide recovery memo Ex.PG. On his (CW-7) return to the Police Station, he (CW-7) handed over the sealed parcel of crime empties to the Moharrar-Mansab Ali, ASI (PW-1) for keeping the same in safe custody and for onward transmission to the Forensic Science Laboratory.
Mansab Ali, ASI (CW-1), the Moharrar deposed that on 04.07.2009, Abdul Khaliq, S.I. (CW-7)-the investigating officer handed over to him sealed parcel containing 47 empties of different bore for keeping them in safe custody in police Malkhana and for onward transmission to the office of Forensic Science Laboratory and on 21-07-2009 he handed over said parcel to Muhammad Azam 671/C for its onward transmission to the office of Forensic Science Laboratory. Mansab Ali, ASI (CW- 1) also deposed that as long as the sealed parcel remained in his custody, nobody tampered with it. Muhammad Azam, Constable (CW-8) deposited the crime empties on the same day with the Forensic Science Laboratory intact. On 17.05.2010, Saif Ullah, SI (CW-5) arrested the accused-Ameer Ali and on the disclosure made by the accused on 26.05.2010 and on his pointing, Kalashnikov (CW-5/1) and 15 live bullets (CW5/2(1-15) were recovered and same were taken into possession through recovery memo (Ex.PD) attested by Ali Sher (PW-2) and Iftikhar Ali (given up PW) and the same was handed over to the Moharrar on the return of the Investigating Officer (CW-5) to the police station. On 31.12.2010, Sabir Hussain, SI (CW-6) arrested the accused-Arshad alias Tunda and on the disclosure made by the accused on 07.01.2011 and on his pointing, Kalashinkov (P-15) was recovered and the same was taken into possession through recovery memo (Ex.PN) attested by Mudassar (PW-8) and Iftikhar Ali (given up PW) which was handed over to the Moharrar on the return of the Investigating Officer (CW-6) to the Police Station. On perusal of the report of Forensic Science Laboratory, it reveals that crime empties were received in the office of Forensic Science Laboratory on 21.07.2009 whereas sealed parcel of Kalashnikovs recovered from the accused- Ameer Ali and Arshad alias Tunda were received in the office on 30.06.2010 and 17.01.2011 respectively. The Forensic Science Laboratory report (Ex.PR) is positive to the extent of weapon recovered from the accusedAmeer Ali, as such the prosecution has proved its case regarding recovery of alleged weapon used in the crime by the accused-Ameer Ali, as per Forensic Science Laboratory, Lahore report (Exh.PR) the same matched with the crime empties collected from the place of occurrence.
27. Nevertheless learned counsel for the appellants has emphasized that the Kalashinkov (P-15) was recovered from the appellant-Arshad alias Tunda and crime empties collected from the place of occurrence carries no legal value. However, we have noticed that no doubt empties were recovered from the place of occurrence but report of the Forensic Science Laboratory, Lahore reveals that the weapon had not matched with the crime empties recovered from the spot. It is the consistent view of the superior courts of the country that the recovery is always corroborative piece of evidence and it is never considered as mainstay of the prosecution for conviction or acquittal of any person in isolation and conviction can be passed provided ocular account leaves no room of doubt about involvement of the culprits in the commission of offence and medical evidence fully corroborates the same. Reliance is placed on the case of Mukhtar Ahmad v. The State (2004 SCM R 220).
28. So far as the long abscondance of the appellants is concerned, suffice it to say that the occurrence took place on 04.07.2009, whereas the appellant-Ameer Ali was arrested on 17.05.2010 and the appellant-Arshad alias Tunda was arrested on 07.01.2011. From which it reveals that the appellants remained fugitive from law for more than ten months as well as sixteen months respectively. The appellants have failed to render any reasonable explanation as to where they were during this period from 04.07.2009 till the time they were arrested by the police. So, in our considered opinion, such a long period of abscondance is not out of fear. When accused absconds after the commission of offence, an adverse inference can be drawn against them because they had committed an offence and absconded themselves to hamper the process of investigation of the case. Reliance is placed on Mst. Mumtaz Begum v. Ghulam Farid and another (2003 SCM R 647).
29. As far as motive is concerned, there is also no denial from the side of accused regarding enmity of murder between the parties wherein compromise was effected between them. Thus, the prosecution has been able to establish that the accused party had been nursing a grudge against the complainant party and finding a suitable opportunity, the attack was launched upon Shahid Maqbool and Shakir Hussain on account of the injuries received during the occurrence, however, Shahid Maqbool had died. It is true that the motive is a double edged weapon but when there is direct evidence available on the file regarding the incident in the present case, motive loses much of its importance. Moreover, the motive remains lying hidden in the minds of the accused and it is very difficult to lead direct evidence in support of the same.
30. The evidence of the eye-witnesses corroborated by the circumstances arising out of the other materials on record clearly establishes, that the appellant Muhammad Arshad alias Bawoo Tunda had murdered Shahid Maqbool by causing him fire arm injuries. The injuries i.e. eleven in number intentionally caused by the appellant-Muhammad Arshad alias Bawoo Tunda at the vital parts of the deceased were sufficient in the ordinary course of nature to cause death. In the present case injuries caused by the appellant were sufficient to cause death and his intention to cause death can be presumed from the choice of the weapon of offence i.e Kalashnikov used by the appellant-Muhammad Arshad alias Bawoo Tunda cannot be interpreted to mean that the intention of the appellant-Muhammad Arshad alias Bawoo Tunda was to commit a lesser offence.
In view of above circumstances, we have drawn a conclusion that the prosecution has been able to prove its case against the appellant-Muhammad Arshad alias Bawoo Tunda beyond any shadow of doubt.
31. As far as Ameer Ali alias Mereu-the appellant is concerned, he was armed with Kalashnikov and he made burst with his Kalashnikov which hit Shakir Hussain (PW-3) and caused six firearm injuries, therefore, Ameer Ali alias Meeru-appellant was rightly convicted under section 324, 337-A(iii) and 337 F(i) PPC. Keeping in view the peculiar circumstances of this case as there is no evidence to suggest that the accused-appellant-Ameer Ali alias Meeru excited, instigated, prompted or exhorted accused-Muhammad Arshad alias Bawoo Tundda to cause injuries to the deceased Shahid Maqbool. Section 34 P.P.C. requires simultaneous consensus on the part of the accused persons. The common intention must be to commit the particular offence. In the instant case, from the material on record, it cannot be inferred that the intention of the accused Arshad was known to the appellant and he had shared that common intention. Admittedly, no overt act towards the deceased Shahid Maqbool was attributed to the appellant-Ameer Ali alias Meeru. Consequently, Criminal Appeal No.628 of 2012 is partly accepted with the modification that the conviction and sentence of accused-Ameer Ali alias Meeru under section 302(b) with the aid of Section 34 P.P.C. is, therefore, set aside while maintaining his conviction recorded under section 324, 337-A(iii) and 337-F(i) P.P.C. However, the sentence and conviction under section 337-D PPC and 337-U PPC awarded to Ameer Ali alias Mereu-the appellant is concerned, we have noted that the prosecution has failed to bring on record anything in black and white to substantiate that the injury has affected the body cavity of the trunk of injured witness. In view of the provisions of Section 337-C PPC if the injury extends to body cavity of the trunk, the offender shall be liable to punishment under section 337-D PPC. In absence of any such evidence, the accused/appellant could not be convicted on mere presumption that locale of injury might have affected the cavity of the trunk of the injured. The X-Ray photograph regarding the injury No.1 sustained by the injured witness had not been produced by the prosecution. It has also been noted that no Radiologist had produced by the prosecution, therefore, in absence of any cogent evidence conviction recorded under section 337-D and 337-U PPC is not sustainable and the appellant-Ameer Ali alias Meeru is acquitted from the charge under section 337-D and 337-U PPC. All the sentences shall run concurrently and the benefit under section 382-B Cr.P.C. shall also be extended in his favour.
32. So far as quantum of sentence of the appellant-Muhammad Arshad alias Bawoo Tunda is concerned, he has been charged for murder of the deceased-Shahid Maqbool by inflicting eleven fire arm injury with Kalashnikov which has been proved by the prosecution beyond any shadow of doubt. The appellant-Muhammad Arshad alias Bawoo Tunda could not brought on the record any mitigating circumstance which could be taken into consideration. However, normal sentence for culpable homicide amounting to murder is sentence of death. Hence the sentence awarded to the appellant-Muhammad Arshad alias Bawoo Tunda by the learned trial court is in accordance with law and no exception can be taken from it.
33. Resultantly, Criminal Appeal No.540 of 2012 filed by Muhammad Arshad alias Bawoo Tunda is DISMISSED IN TOTO, as a consequence whereof conviction and sentence recorded in the impugned judgment dated 17.3.2012 is maintained. Murder Reference No.232 of 2012 is answered in AFFIRMATIVE and the sentence of death awarded to Muhammad Arshad alias Bawoo Tunda son of Muhammad Rafique, caste Jaat, resident of Chak Maili Burji, Police Station Sadar Sangla, Hill, District Nankana Sahib (appellant) is Confirmed.
34. So far as PETITION FOR SPECIAL LEAVE TO APPEAL No.140 of 2012 seeking conviction under section 302 (b) P.P.C. of respondent No.1 to 5 is concerned, we have noted that as the role of the respondents No.1 to 5 i.e. Faisal Mehmood, Javed Iqbal, Abdul Waheed, Khawar Abbas and Muhammad Rafique is concerned, there being no evidence to specifically ascribe any definite role to any of the respondents No.1 to 5, hence, it is difficult to hold that any of the respondents No.1 to 5 had caused any particular injury on the body of the deceased or injured. The respondents No.1 to 5 were attributed the role of indiscriminate aerial firing and no specific injury was attributed to any one towards the deceased or injured. For what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of respondents No.1 to 5 does not suffer from any illegality so as to call for our interference with the impugned judgment. We have also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower court is perverse or that it is completely illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of evidence resulting in miscarriage of justice. Even otherwise, when accused is acquitted by a court of competent jurisdiction, double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCM R 477). In this case the prosecution has not been able to bring on record adequate incriminating evidence against respondent No.1 to 5 which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of respondents No.1 to 5. The judgment of acquittal does not call for any interference. Consequently, we find no merit in this petition bearing No.140 of 2012, which is hereby dismissed being without merits.