1. ' SAEEDUZZAMAN SIDDIQUI, J.---This judgment will govern the disposal of above-noted two criminal petitions bearing Nos. 86 and 88 of 1992. First noted petition is filed by convicts Yaqoob Khan son of Inayat Khan and Zahid Munir son of Muhammad Munir against their conviction and sentences awarded by the trial Court and confirmed by the High Court on appeal. The second petition is filed by the complainant Jehangir Khan to call in question the acquittal of third accused in the case Raja Ajmal by the High Court.
2. ' The prosecution case in brief is that marriage ceremony of Asif Ali Khan, the deceased in the case, was fixed for 25-12-1988. On 10-12-1988 the deceased alongwith his brother Jehangir Khan (complainant), Jehanzeb Khan, Muhammad Ajaib and Nazakat All had gone to Rawalpindi from Village Mangial in Suzuki Van for making purchases. At about 9-30 p.m. While they were coming back from Rawalpindi, after making purchases, and reached near latcha' link road, Mangial, a blue Toyota Corolla Car, old model, came from the side of Village Mangial and Signalled the (sic) his van and the car which was coming from the opposite side also stopped near Suzuki van. Jehanzeb Khan (P.W.) got down from the van while one person came out of the car coming from the opposite side, and enquired about deceased Asif Ali Khan. Jehanzeb Khan thinking that the person enquiring about the deceased Asif Ali Khan might be their guest, told Asif All Khan that some body was enquiring about him. Asif Ali Khan who was sitting inside the Van put on the internal light of the Van.
3. Meanwhile, another person came out from the car holding a double barrel gun in his hand and went straight towards the side of the driver and fired two shots at Asif Ali Khan which struck him on his neck and on right side of left shoulder. The person who had come out first from the blue Toyota Corolla Car also came in front of the Van and fired a shot from his Carbine, as a result whereof the wind screen of the Van was smashed and the shot fired by him hit Muhammad Ajaib who was sitting on the back seat, on his forehead, right eye-brow, cheek and head. Both the assailants thereafter boarded in Car and went away towards Rawalpindi-Kohat Road. The occupants of Suzuki Van did not follow the assailants out of fear. Asif Ali Khan died while being taken to Civil Hospital. Jehangir Khan after leaving Ajaib and dead body of Asif Ali Khan in the hospital in the custody of Jehangzeb and Nazakat, went to Police Station Fateh Jang and lodged report which was recorded by Muhammad Khan Si. (P.W.1). No person was specifically named in the F.I.R. But the description of the accused persons were given by the complainant in the F.I.R. Lodged at Police Station Fateh Jang. Accused Yagoob Khan was produced before the S.H.O. Fateh Jang by Raza Aslam Khan (P.W. 20) while co-accused Zahid Munir and Raja Ajmal were produced before S.H.O.
4. Fateh Jang by Raja Israr Abbasi, Advocate (P.W.19) on 30-12-1988. The three accused persons in the case were put to identification parade on 2-1-1989. Jehangir Khan (P.W. 13) and Muhammad Ajaib (P.W. 14) identified all the three accused persons while Masood Khan (P.W. 16) only identified Zahid Munir. While in custody, Yagoob Khan led to recovery of gun used by him on 4-1-1989 while Zahid Munir also got recovered Carbine on 5-1-1989. After completion of usual investigation; all the three accused were sent up for trial before the Additional Sessions Judge, Attock, who sentenced the petitioner Yagoob Khan to death and Zahid Munir and Raja Ajmal to life imprisonment under section 302/34, P.P.C. Each of the abovementioned accused was also sentenced to pay a fine of Rs.
5. 30,000 or in default thereof to suffer R.I. For three years. The trial Court also convicted all the three accused under section 307/34, P.P.C. And sentenced them to undergo R.I. For 7 years each plus fine of Rs.10,000 each or in default to suffer further R.I. For one year. Half of the amount of fine, on realisation; was ordered to be paid to the legal heirs of deceased Asif Ali Khan under Section 544-A, Cr.P.C. As compensation.
6. ' All the three convicts filed appeal against their conviction and sentences as aforesaid before Lahore High Court. The complainant also filed a Revision Application for enhancement of the punishments of Zahid Munir and Raja Ajmal from life imprisonment to death. The learned Judges of the High Court upheld the conviction of Yagoob Khan and Zahid Munir under section 302/34, P.P.C.
7. And 307/34, P.P.C. And confirmed death sentence awarded to petitioner Yaqoob Khan. It was, however, ordered that the sentences awarded to Zahid Munir under sections 302/34 and 307/34, P.P.C. Shall run concurrently and he will also be entitled to benefit of section 382-B, Cr.P.C. It was also directed by the learned Judges of High Court that half of the amount of fine on recovery both from Petitioner Yaqoob and Zahid Munir, shall be paid as compensation to the legal heirs of deceased. With regard to the case of Raja Ajmal, the learned Judge of High Court, however, did not find that the case against him was proved beyond reasonable doubt and accordingly giving him the benefit of doubt and the fact that he was neither armed nor he exhorted two other convicts at the time of incident, acquitted him in the case, giving rise to the present petitions.
8. ' We have heard the learned counsel for the petitioners, the complainant and the learned State counsel and after hearing them at length, we are of the view that no interference with the order passed by the learned Judges of the High Court is made out.
9. ' Mr. S.M. Zafar, the learned Senior ASC contended before us that the incident had taken place in the night time at a very dark spot and therefore it was not possible for the witnesses to have seen and identified the petitioners. It is also contended by the learned counsel for the petitioners that extra- judicial confession in the case relied by the prosecution is unbelievable and it was highly improbable that petitioners, whose names were not mentioned in the F.I.R. Would have approached P.Ws. 19 and 20 to produce them before the Police in the case. The learned counsel for the petitioners also contended that the identification parade was held after a delay of about 24 hours which created doubts as all the three accused had raised objection before the Magistrate who held the identification parade, that they were shown to the witnesses before they were put to the identification test. The learned counsel for the petitioners lastly contended that the prosecution gave up a independent material witness in the case Nazakat. Who was driving Suzuki Van, and therefore, the Court should draw an adverse inference against the prosecution that the said witness if produced would not have supported the case of prosecution.
10. ' The learned counsel for the complainant on the other hand challenged the acquittal of 3rd accused in the case namely, Raja Ajmal by the High Court and contended that the prosecution had produced sufficient evidence in the case to prove involvement of Raja Ajmal and as such the acquittal of the said accused in the case by the High Court is not sustainable in law. The learned Judges of High Court while acquitting Raja Ajmal in the case gave the following reasons for their conclusion:- "37. The case of Raja Ajmal appellant stands somewhat on a different footing than the other two.
11. Although, both the eye-witnesses named him to be the person who had driven the car to and from the spot, when the deceased was done to death by his companions and witness deposed about the extra-judicial confession made by him yet there is no other independent evidence in support of the evidence of the eyewitnesses and the extra judicial confession, against him. There is no allegation that he was armed with anything and had played any active role in causing injuries to the deceased. He was not alleged to have even exhorted the other two. Even before the occurrence he had not played any active role in making preparations to achieve the object of commission of offence, like Zahid Munir appellant who had made the commission of offence easier by arranging a car on hire to reach the deceased. His participation in the occurrence, in our view, is not proved beyond reasonable shadows of doubt. We are, therefore, inclined to allow him the benefit of doubt by way of abundant caution. His appeal is allowed, and he is acquitted. He shall be released forthwith if not required in any other case."
12. We have carefully gone through the reasons given by the High Court and are of the view that the reasons given by the High Court in acquitting co-accused Raja Ajmal in the case are neither based on misreading of evidence nor the said conclusions are the result of non-consideration of any material piece of evidence against him on record. This Court cannot interfere with the acquittal judgment in a criminal case if the acquittal judgment is based on a possible conclusion of evidence on record and is neither perverse nor is the result of misreading of evidence or non- consideration of material piece of evidence on record. The fact that this Court on re-appraisal of the evidence is likely to reach a different conclusion, is never recognized as a valid ground for interfering with the acquittal order of the lower Court in a criminal case. We, accordingly, find no substance in Petition No. 88 of 1992 filed by the complainant, which is, accordingly, dismissed.
13. ' We will now take up the case of two convicts, Yaqoob Khan and Zahid Munir. The first objection by the learned counsel for the petitioners/convicts in the case is that the names of the two petitioners were not disclosed in the F.I.R. And therefore, there was no worldly reason for these two petitioners to have approached P.W.19 and P.W. 20 for producing them before the police. It is true that the names of the assailants were not mentioned in the F.I.R. But the complainant had given their description in the F.I.R. Apart from it, it has come in the evidence by the I.O. That immediately after visiting the site and taking possession of the incriminating articles from the site he recorded the statements of P.Ws. Under section 161, Cr.P.C. It has come in the evidence of P.W.18, Rizwan Saddiq, who is the brother of Mst. Ashfa Sadiq, who was to be married to deceased Asif All Khan, that he was examined by the Police under section 161, Cr.P.C. On the following day of the incident namely, 11-12-1988 in which he had named accused Yaqoob Khan as a suspect. It is also in the evidence of the said P.W. Rizwan that Yaqoob Khan petitioner had demanded the hand of Mst. Ashfa Sadiq but it was refused by the mother of Mst. Ashfa Sadiq on the ground that she has already given the hand of Mst. Ashfa Sadiq to the deceased Asif All Khan. It is also in the evidence of P.W.18 that convict Yaqoob was infuriated and threatened that if he was not given the hand of Mst. Ashfa Sadiq he will do away with Asif All Khan with the assistance of his companions. It is, therefore, quite clear that although the names of Yaqoob and other accused were not mentioned in the F.I.R.
14. Lodged in the case, but they were the prime suspects in the case in view of the statements under section 161, Cr.P.C. Recorded Immediately after the incident. In these circumstances, the production of the accused persons by P.W. 19 and P.W. 20 before the police could not be termed as unnatural as both these witnesses have deposed in their statement before the Court that the accused persons were afraid of the torture by the police and had requested them to produce before police on the assurance that they will not be tortured. If the statements of P.Ws. 19 and 20 regarding production of the three accused persons in the case are accepted as correct the possibility that the accused confessed their guilt before them in order to secure an assurance that they would not be subject to any torture by the police could not be ruled out. The evidence on record shows that on production of the accused persons by P.W.19 and P.W.20, before the police, on 30-12-1988, they were remanded to the judicial custody. Both the Courts below accepted the evidence of P.W.19 and P.W.20 who were otherwise independent witnesses and had no motive to involve the accused persons falsely in the case and therefore, we find no reason to take a contrary view.
15. ' The ocular account of the case was furnished by Jehangir Khan and Muhammad Ajaib and out of them Muhammad Ajaib is the person who was injured during the incident and as such his presence at the time of incident could not be doubted. Both the Courts below have analysed the statements of Jehangir Khan and Ajaib at length and have relied on them. We do not find any reason to discard the testimony of these two witnesses which has been relied upon as confidence inspiring by the two Courts below and which on examination we also find does not suffer from any infirmity. Muhammad Ajaib was absolutely an independent person. He was also injured during the course of incident and there was no motive for him to falsely implicate accused persons, who were not even named in the F.I.R. With regard to the identification parade, the learned Judges of the High Court while analysing the evidence in this regard observed as follows:-- "26. The appellants were arrested on 30-12-1988. They were lodged in jail on the same day for putting them to identification parade, after being produced before the Magistrate. The identification parade was held on 2-1-1989, i.e. 3 days thereafter. There is no convincing evidence on record that in the meantime they had been shown or could have been shown to the witnesses who were asked, to take part in the identification parade.
16. ' It is worth noticing that even though learned counsel for the appellants argued before us that the appellants could not have been identified on the basis of identification marks given in the F.I.R., yet neither the complainant nor the other eye-witness was asked during cross-examination (which was quite lengthy one) that the figure marks of the culprits given in the FIR did not tally with the stature and identification of the appellants.
27. The alternative argument of learned counsel for the appellants that the appellants or at least Yaqoob appellant was known to the witnesses, even prior to the occurrence, and so no weight should be given to the evidence of identification parade, has also not impressed us for the reason that if the appellants were known to the complainant prior to the occurrence, then be would have certainly named them in the FIR. For what would after all the complainant have withheld their names if he had a mind already that he is going to put the appellants to prosecution for the murder of his brother?
17. The nutshell, is that the argument of learned counsel for the appellants that no weight should be given to the evidence of identification of the appellants for the occurrence having taken place during darkness or for any reason, possesses no substance."
18. The above reasoning of the learned Judges of High Court does not suffer from any infirmity nor it is the result of misreading of evidence on record. Similarly, the contention of the learned counsel for the petitioners/convicts that the incident had taken place at a dark spot and therefore it was not possible for the prosecution witnesses to see the petitioners, was also dealt with by the learned Judges of the High Court as follows:-- "25. The contention of learned counsel for the appellants that as the occurrence had taken place during darkness, the witnesses could not have identified the culprits, has not impressed us, for, the P.Ws. Explained that they had seen the assailants in the light of the two cars. Two of the appellants who had fired shots at the deceased, and Ajaib Khan P.W., had come out of the car and fired shots from a place which was very near to the seat where the complainant was sitting. He could, thus, have easily seen their faces, and Ajaib Khan P.W. Could have also done the same. It is worth mentioning that the occurrence had not taken place in a split of moment, the culprits had first stopped the car in which the deceased was sitting and had launched attack after talking to Jehanzeb (given up P.W.). During all this time the culprits would have been visible to the witnesses while being in the light of the two cars."
19. We find no reason to differ from the above conclusions arrived at by the learned Judges of the High Court and consequently are not inclined to F grant leave in the case. Petition No.86 of 1992 is, accordingly, dismissed and the sentence awarded by the High Court is upheld.