Impugned herein is judgment dated 4-7-2017 by a learned Addl. Sessions Judge at Rawalpindi whereby he acquitted, Saboor Ahmad, Farooq Ahmad and Muhammad Rauf, brothers inter se, respondents herein, from the charge of homicide, brought against them vide FIR No.317 dated 26-5-2008 with Police Station Westridge Rawalpindi on the complaint of Abdul Rauf, appellant herein. It is was alleged that on the fateful day i.e. 26-5-2008, at about 7:00 p.m. the respondents arrived at the scene on a motorbike and two of them, namely , Saboor Ahmad and Farooq Ahmad fired upon Abdul Waheed, who as a result whereof, succumbed to the injuries in the hospital; a land dispute and civil litigation consequent thereupon had been cited as a motive for the crime. Though structured upon ocular account, notwithstanding the incident being evening affair, the learned trial Judge proceeded to acquit the respondents from the charge for a variety of reasons most prominent being presence of three entry wounds in close proximity in terms of their locales in the absence of exits albeit with blackening around the margins, suggestive of single burst instead of independent shots by more than one assailant, as suggested in the crime report and in so observing the learned Judge relied upon the interregnum, though brief between the fire shots as alleged by the prosecution and while comparing medical evidence with ocular account; bullet trajectories as well as locales thereof were also held to be inconsistent with the positions mentioned in the site plan. The learned trial Judge was much impressed by the statement of Malik Doulat (DW-1), admittedly present at the crime scene at the relevant time and shifted the deceased in injured condition to the hospital and, thus, absence of the witnesses was concluded on the basis of statement made by Asghar Ali (CW-2), exoneration in successive investigations has been proverbial straw on camel's back.
2. Learned counsel for the appellant contends that view taken by the learned trial Judge is an impossible view inasmuch as ocular account furnished by the witnesses, notwithstanding their relationship with the deceased, brought home the charge beyond a shadow of doubt; it is next argued that occurrence being a daylight affair with enmity raging between the parties there was no possibility of mistaken identity or any foundational basis to entertain hypothesis of substitution. The bottom line is that ocular account is fully in line with the witnesses, hailing from the same locality and, thus, conclusions drawn by the learned trial Judge being speculative cannot override direct evidence. According to the learned counsel, the impugned acquittal, warrants interference to avoid miscarriage of justice.
3. Heard.
4. Locales of fire shots being on back of the neck and close in inter se proximity is a common ground. In this backdrop, repeated fire shots by two assailants in a fractional space of time without any change or alteration in deceased' s posture is mindboggling to say the least. Equally improbable is participation of three real brothers to accomplish the task which every single of them could have achieved without putting the entire family at risk.
Statement of Doulat Khan (DW-1) suppo rted by Asghar Ali SI (CW-2) goes a long way to entertain hypothesis of absence of eye witnesses. Though certainly ipsi dixit of the police is not binding upon the Court, nonetheless, conclusions drawn during investigative process cannot be ignored or thrown out on this premise alone, particularly when found inconsonance with the atten ding circumstances of the case, otherw ise, suspectingly structured on positions taken by the prosecution. On a careful scrutiny of the impugned judgment, findings returned by the learned trial Judge cannot be described as arbitrary , fanciful or impossible; these reflect a possible scenario to be conceived without being imprudent; it is by now well settled that mere existence of possibility of a contra view by itself would not suffice to recall freedom in the absence of strong and cogent reasons, admitting no conclusion except that of the guilt, that too, essentially to prevent miscarriage of justice; it is not a case in hand. Dismissed in limine .