Sardar Tariq Masood, J. Through these petitions, the petitioner complainant Khuda Bakhsh has impugned the judgment dated 14. 11.2018 of the Lahore High Court, Multan Bench whereby the respondents Azhar Abbas (CrI.P. 1363/2018) and Ashiq Hussain (Crl.P.No. 1364/2018) were acquitted of the charge.
2. Precise facts of the case are that the respondents Azhar Abbas and Asbiq Hussain were indicted in case FIR No. 56 of 2011 registered on 13.06.2011 at Police Station Shahsaddar Din, District Dera Ghazi Khan under Sections 302, 337-A(i), .148 and 149 of the Pakistan Penal Code (PPC) for, committing qatl-e-amd of complainant's son Saddam Hussain. On completion of trial, Azhar Abbas was convicted under Section 302(b) PPC and sentenced to death. He was further directed to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased in terms of Section 544-A of the Criminal Procedure Code (Cr.P.C.) or in default thereof to further undergo S.I. for six months, whereas Ashiq Hussain alongwith other two co-accused, was acquitted of the charge while giving the benefit of doubt. Respondent Azhar Abbas filed appeal before the High Court which was accepted and he was also acquitted of the charge. On the other hand, appeal filed by the petitioner/complainant against acquittal of the respondent Ashiq Hussain was also dismissed, hence these petitions for leave to appeal filed by the complainant against acquittal of both the respondents.
3. We have heard the learned counsel for the petitioner and observed that the High Court while evaluating the entire prosecution evidence disbelieved the three eye-witnesses of the occurrence namely Khuda Bakhsh (PW-5), Khalil Ahmed (PW-6) and Haji Muhammad Afzal (P.W9) Khalil Ahmed (PW-6) was disbelieved for the reason that had allegedly caught hold by Tanveer Hussain alias Chunu whereas Ashiq Hussain gave hatched blow in the middle and back of the head which apparently is not possible when the victim was clasped by another accused. Another circumstance that he allegedly was injured' at 9:35 am whereas his medical examination was conducted at 11:00 am i.e. after 11/2 hours of the occurrence. The doctor observed a lacerated wound (not incised) on the occipital region (back) of the head. The doctor observed that the blond was oozing from the said wound. The doctor categorically stated that on the back of the head he received injury which is not possible as already discussed that he was in the 'japha' of another accused. There is another circumstance that the doctor did not gave any duration between the injury and medical examination, even the bone was not exposed but the oozing blood from 9:30 am to 11:30 am must have drained out all the blood from the body and in that condition the consciousness and blood pressure of 170 is not possible. That was the reasons the doctor has not given the duration and even the prosecution did not clarify the same from the said doctor. In that eventuality, the duration between the injury and medical examination could be within 1/2 hours because it is not humanly possible that the blood remained dozing from 9:30am to 11:00 am, even then the injured remained conscious and stable. Admittedly, doctor did not found any bandage or first aid on the said wound and there is nothing on record that anybody tried to stop the blood and the High Court rightly disbelieved the statement of the said witness on this score, amongst others.
Khalil Ahmed failed to prove that he was injured in the same occurrence. The High Court in para 14 of the judgment concluded that there is no positive evidence on the record indicating that Khalil Ahmed (PW-6) has received any injury in the present occurrence or otherwise.
4. Khuda Bakhsh (PW-5) claimed in the FIR that two fire shots fired by respondent Azhar Abbas were landed on the right shoulder and below the chin but the doctor observed the fire-arm injury wound on the back of the shoulder and the exit wound was on the front of the chest, just hear to shoulder. In order to bring the case of the prosecution in line, Khuda Bakhsh, for the first time, made improvement in the Court during the trial that after receiving his first injury on his chin the deceased took turn and then Azhar Abbas fired second shot which hit on the back of the shoulder of the deceased. He was duly confronted with his previous statement where such turning was not mentioned. This dishonest improvement was made only to bring the case of the prosecution in line with the medical evidence.
5. In the FIR Khuda Bakhsh claimed that Azhar. Abbas fired two shots one hit on his chin and the other on his shoulder but in the Court he claimed that Azhar Abbas fired three shots. The relevant portion from his examination-in-chief is reproduced as under: Azhar Abbas fired two shots with his Kalashnikov which hit my son Saddam on his chin/neck.
Sadam Hussain tried to take tum but he again fired which hit on the back of night shoulder.
This improvement was made only to show the turning of the deceased and receiving injury on his back. This statement is also contradicted by the medical evidence as according to the statement of the complainant in the Court, three shots were fired but the doctor observed only two entry wounds. These aspects were taken into consideration by the High Court and due to the said reason the appellate Court disbelieved the statement of Khuda Bakhsh.
6. So far Haji Muhammad Afzal (PW-9) is concerned, in the FIR it is mentioned that he witnessed the occurrence. He was also witness of the recoveries. He appeared in Court as PW-9 and Oath was administered to him and thereafter counsel of the complainant stated that the witness will made statement only to the extent of recovery proceedings and will not say anything regarding the occurrence and Haji Afzal (PW-9) stated only to the extent of recovery and did not utter anything regarding the present occurrence, indicating that his evidence to the extent of occurrence has been withheld especially when he appeared in the Court and taken oath. So an adverse inference can be drawn in view of Article 129-G of the Qanun-e-Shahadat Order, 1984 because in this case the evidence was withheld when the witness was present in the Court and oath had already been administered by him.
7. We have observed that the High Court mentioned a lot of contradiction in pare 15, 16 and 17, between the statements of the witnesses. The report of Forensic Science Laboratory (FSL) is also negative as two crime empties, recovered from the spot were not found fired from the Kalashnikov allegedly recovered from Azhar Abbas. We have gone through the impugned judgment which is well reasoned and needs no interference. It is settled that the reversal of acquittal requires strong grounds and could not be interfered with, merely on the possibility of contra view. The parameters to deal with an appeal against conviction and an appeal against acquittal are totally different because acquittal carries double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rested upon impossibility and if there is possibility of a contrary view even then acquittal could not be set aside.
But in this case we see that there is no possibility of contra view because the witnesses have contradicted each other, made dishonest improvements, as discussed above, and the prosecution has withheld the best evidence which was available in the Court. The High Court had properly re- appraised the entire evidence and we are in full agreement with the said conclusion.
Consequently, these petitions are dismissed and leave declined.