' MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal which is directed against the judgment dated 29-11-1993 of the Lahore High Court, Lahore, arises from the facts that Muhammad Faryad Ali and eight others (respondents Nos. 1 to 9) were tried by the learned Judge, Special Court No, IV--Suppression of Terrorist Activities, Lahore Division, Lahore, under sections 302, 109, 148, 149, P.P.C. For the double murder of Muhammad Ilyas and Zafar Hussain, who, vide judgment dated 24- 6-1992; while acquitting Mushtaq, Muhammad Ashraf alias Achhu, Abdul Majeed alias Jeda, Muhammad Ashiq and Muhammad Faryad All (accused) convicted Habibullah, Muhammad Saleem and Wajid Umer (respondents Nos. 4, 8 and 9) under section 302/34, P.P.C. And sentenced Habib Ullah and Muhammad Saleem alias Shahzad to death and Wajid Umer alias Gogee to imprisonment for life and a fine of Rs,50,000 or in default two years' R.I. On two counts, with the direction that the fine if recovered shall be paid to the legal heirs of the deceased. Amir alias Mandi (shown as respondent No, 2 in the present petition) having died during the trial, his name was eliminated from the list of the accused persons.
2. The occurrence took place on 19-8-1991 at 8-30 p.m. Opposite L.DA. Disposal Pump at a distance of 3 Kilometres from Police. Station Nawan Kot, Lahore. The F.LR. Is statement (Exh. PK) of Haji Muhammad Arshad (P.W.8) recorded on the spot by Munir Ahmad, S.I./S.H.O (P.W.21) on basis whereof formal F.I.R. Was registered at Police Station by Bashir Ahmad, S.I. (P.W.7) on the same day at 9-45 p.m.
3. According to the prosecution, at the eventful time, Haji Muhammad Arshad, complainant (P.W.8) alongwith Abdur Razzaq (P.W.9) and Muhammad Rashid (P.W.11) was going towards Bund Road on a tractor-trolly. When they reached in front of the Disposal Pump, they saw the two deceased going on a motor-cycle. In the meantime, a white coloured Suzuki car overtook them and stopped the motor-cycle of the deceased. Muhammad Saleem armed with Kalashinkov, Muhammad Faryad Ali armed with mouser, Muhammad Amir All (since died) carrying carbine and an unknown person of middle height and strong body alighted from the car and started indiscriminate firing at Muhammad Ilyas and Zafar Hussain (deceased). Both of them received fire-arm injuries, fell down on the ground and died at the spot. The accused thereafter got into the car and escaped. Both the deceased were allegedly killed on the instigation of Muhammad Ashiq (respondent No, 3). The motive alleged by the prosecution was that a few days before the occurrence, Muhammad Ashiq had threatened the two deceased to desist from giving evidence in the murder cases registered against his (Muhammad Ashiq's) close relatives, otherwise they would be killed.
4. Dr. Arif Rashid (P.W.4) conducted post-mortem examination on the dead body of Zafar Hussain and found 22 fire-arm wounds on his person. The death was on account of damage to vital organs of chest (heart and both lungs) and abdomen, and the injuries were sufficient to cause death in the ordinary course of nature. Dr. Muhammad Saleem Mughal (P.W.5) conducted postmortem examination on the dead body of Muhammad Ilyas and found 20 firearm injuries on his person out of which two injuries were sufficient to cause death in the ordinary course of nature.
5. During the investigation, Kalashnikov, two magazines and thirty bullets and one dagger were recovered from Wajid Umer (respondent). Kalashnikov, fifty bullets and two magazines were recovered from Habibullah (respondent). Pump Action .12 bore gun was recovered from Muhammad Saleem (respondent). Since the empties recovered from the spot were not found to have been fired from the weapons recovered from the accused/respondents as per Report Exh.
PCC of Fire-arms Expert, so the recoveries are of no consequence.
6. On the application of the Investigating Officer, parade for the identification of Wajid Umer (respondent/accused) was held on 21-9-1991 under the supervision of Mumtaz Ahmad Chaudhry (P.W.20) and another parade for the identification of Muhammad Ashraf alias Acchhoo (respondent/accused) was held on 30-1-1992 under the supervision of Alauddin, Magistrate First Class (P.W.10). Both the respondents/accused were correctly identified by the eye-witnesses.
7. Prosecution produced 21 witnesses in all. The ocular account of the occurrence was given by Haji Muhammad Arshad (P.W.8), Abdur Razzaq (P.W.9) and Muhammad Rashid (P.W.11). Motive was supported by Atta Muhammad (P.W.14). The post-mortem reports were proved by Dr. Arif Rashid (P.W.4) and Dr. Muhammad Saleem Mughal (P.W.5). Allauddin, Magistrate 1st Class (P.W.10) and Mumtaz Ahmad Chaudhry (P.W.20) had supervised the identification parade proceedings held for the identification of Muhammad Ashraf alias Acchhooand Wajid Umer alias Gogee (respondents/accused). Muhammad Arshad (P.W.12) has deposed about the conspiracy of the accused to kill the deceased. Muhammad Azeem, S.I. (P.W.18) and Munir Ahmad, S.I./S.H.O. (P.W.21) had investigated the case and effected recoveries of empties and fire-arms as stated above. Rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C., the respondents/accused raised the plea of false implication on account of enmity. No witness was produced in defence.
9. The trial Court did not believe the prosecution case and the evidence produced by it to the extent of five co-accused. One accused was eliminated from the list of accused having died during the trial. Believing the ocular evidence supported by the medical evidence and the motive, the trial Court convicted and sentenced the three respondents Habib Ullah, Muhammad Saleem alias Shahzad and Wajid Umer alias Gogee, as stated above. Neither the complainant nor the State.
Filed any appeal or revision against the acquittal of the five accused. Disbelieving the motive and the eye-witnesses the High Court has acquitted the remaining aforesaid three respondents.
10. Learned counsel for the petitioners submitted that the prosecution has proved its case against the nine respondents beyond reasonable doubt; that the eye-witnesses are wholly dependable witnesses and the account of the occurrence given by them finds corroboration from the medical evidence and the motive; and that the respondents have been acquitted without sound and cogent reasons.
11. We have carefully considered the submissions made by the learned counsel in the light of the evidence on record and the circumstances appearing in the case. We do not feel pursuaded to interfere with the judgment of acquittal. We find that the petitioner as well as the State having not challenged the acquittal of the five respondents before the High Court through appeal or revision, the present petition against acquittal to their extent is not maintainable. Similarly, the petition against dead person (Amir Ali alias Mandi respondent No, 2) is also not maintainable. As for the other respondents namely, Habib Ullah, Muhammad Saleem alias Shahzad and Wajid Umer alias Gogee, we find that the High Court considering the evidence on record in accordance with principles of safe dispensation of justice in such like cases rightly rejected the same for good and sound reasons.
12. Motive allegedly was that Habib Ullah respondent was involved in a murder case wherein the two deceased Zafar Hussain and Muhammad Ilyas were the eye-witnesses. The respondents used to threaten them that in case they give evidence against them, they (the deceased) would be murdered. D.W.1, Muhammad Anwar Khan (Ahlmad of the Court of Additional Sessions Judge, Lahore) appeared before the trial Court and produced the record of the relevant murder case which shows that Muhammad Ilyas (deceased) was not an eye-witness in that case. It was for this reason that the High Court had excluded the motive from consideration.
13. The ocular evidence has been rejected by the High Court on the grounds that the eye-witnesses were inimical and interested; that they were not relied upon qua acquitted five co-accused; that the presence of the eyewitnesses on the spot was doubtful for the reasons given in paragraph 5 of the judgment. So far as Wajid Umer (respondent) is concerned, the High Court was of the view that his identification by the eye-witnesses at the time of occurrence from a distance of 65 feet in darkness was not possible.
14. On our own independent assessment of the evidence and perusal of the record we find that grounds on which the High Court has acquitted the three respondents are supported by the evidence on record. In a nutshell the judgment of acquittal is neither perverse nor the reasons therefor are artificial and/or ridiculous; the eye-witnesses are interested; the motive has rightly been discarded by the High Court; and the Medical evidence alone hardly connects the respondents with the murder of the deceased. The presumption of innocence of the accused, had rather become double by virtue of their acquittal by a Court of competent jurisdiction.
15. Accordingly, leave to appeal is refused.