ABDUL HAMEED DOGAR, J.---Petitioner seeks leave to appeal against the judgment dated 16-11- 2001 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, in Criminal Appeal No,1255 of 1999 whereby the same was allowed resulting in the acquittal of respondents Nos.1 and 2 from the charges.
2. Brief facts of the case are that respondents Nos.1 and 2 in the above petition were tried by the Special Court (Suppression of Terrorist Activities) Act, 1975, Gujrat, under section 302(b)/149, P.P.0 and were convicted and sentenced to undergo imprisonment for life with compensation of Rs,50,000 each to be paid under section 544-A, Cr.P.0 to the legal heirs of' the deceased or in default to suffer further R.I. For six months. Both of them were also convicted under sections 324/149, P.P.0 and sentenced to undergo five years'. R.I. With fine of Rs,10,000 each or in default one month's S.I. Each. Under section 337-A(i)/149, P.P.0 they were sentenced to two years'. R.I. Each with further direction to pay Rs,10,000 each as Daman payable to. Ehtisham Yaqub Butt, injured P.W. Or in default one month's S.I. Both the respondents were also convicted under section 148, P.P.0 and sentenced to undergo 3 years' R.I.
3. Facts. Of the case of the prosecution, briefly, stated are that on 11.11-1998 at about 12,30 noon, complainant Inayatullah Butt (P.W.9) along with Chand Butt his brother-in-law and Ehtisham Yaqub P. W.10 were going towards his inherited house from his under construction house situated at Butt Street, Mohallah Shah Hussain and when they reached near the house of Zahid Hussain Butt, P.W., they saw accused, namely, Adil armed With Kalashnikov, Utnar Javid armed with .30 bore mauzer, Waqas Arshad armed with .12 bore double-barrel gun respondents Ghulam Farid alias Kukoo armed with 223 bore rifle and Muhammad Javid empty-handed in the street. On seeing them, respondent Ghulam Farid alias Kukoo raised Lalkara not to leave them, upon which Waqas Arshad accused gave a butt blow of his 12 bore gun on the person of Ehitsham Yaqub which hit on his hand who felldown. When he and Chand deceased came to rescue, Ehtisham Umar Javaid fired a shot on Chand which did not hit him, thereafter respondent Muhammad Javid caught hold deceased Chand and accused Adeel fired a shot from his Kalashnikov which hit on the left side of his head. In the meantime Zahid Hussain and Iftikhar Butt got attracted at the place of occurrence and beseeched not to do so upon which they threatened with dire consequences and thereafter decamped. Injured Chand succumbed to the injuries on the way while being shifted to. Lahore. The motive behind this occurrence was that 20 days prior to the occurrence, Adeel and Umar Javaid accused were tortured by Ehtishman Yaqub P.W. Upon their immoral activities. Matter was patched up but the accused kept the grudge in their heart and ultimately committed this occurrence.
4. Accused Waqas Arshad, Ehtishman. Umar Javed absconded, as such were declared proclaimed offenders whereas trial proceeded against respondents Muhammad Javaid and Ghulam Farid alias Kukoo.
5. Prosecution in order to establish its case'examined, as many as 17 witnesses.
6. On autopsy, Dr.Muhammad Munir Ahmad, Senior Medical Officer on 112-11-1998 noticed the following injuries on the person, of the deceased:-
(1) An excavated furrowed 'wound widening from before to backwards 10 cm x 1.5 to 3 cm external from left temporal to left pariete occipital region. Bones were fractured and the brain matter was coming out. The left eye ball had collapsed.
7. On the completion of prosecution evidence, respondents were examined under section 342, Cr.P.0 wherein they denied the allegations and claimed to be innocent. However, they did not examine themselves on oath but examined Syed Nasam Hussain Shah, Muhammad Zaman and Tariq Abbas Qureshi in defence.
8. On conclusion, the trial Court convicted and sentenced the respondents as stated above.
9. On appeal, both of them were acquitted by the Lahore High Court, Lahore. The criminal revision filed by the petitioner/complainant for enhancement of their sentences was also/dismissed.
10. We have heard Malik Saeed Hassan, Senior Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the'case in minute particulars.
11. Learned Advocate Supreme Court for the petitioner emphatically urged that the learned Lahore High Court has completely misread the evidence, drawing unwarranted conclusion which resulted in miscarriage of justice. He argued that the impugned judgment suffers from material defects warranting interference. He further argued that the learned Judge in Chambers of the High Court has not examined the evidence on merits of the case in accordance with the principles governing the safe administration of criminal justice. He supported the judgment of the trial Court which according to him is based on sound reasoning so much: so that while rejecting the plea of defence of alibi raised by the respondents advanced convincing reasons for the same. The respondents being members of unlawful assembly having common object were rightly found to be the guilty of the offence. He emphasized that respondent Ghulam Farid alias Kukoo was the principal accused who instigated the others to kill the deceased and it was on his command, deceased Chand Was done to death. Respondent Muhammad Javaid also facilitated the commission of the offence while catching hold of, the deceased.
12. On careful perusal of the impugned judgment, we fully agree with the conclusion arrived at by the learned High Court while acquitting respondents from the charges and setting aside their conviction and sentences. For better appreciation, its relevant paragraph is reproduced as under:- - The Court has to see the role played by the present appellant. Muhammad Javaid appellant is father of Umar Javaid. I am not going to believe the role attributed to him, which according to the F.I.R. Was of having held the deceased in his clasp (Japha) whereafter Adeel fired a shot hitting Chand deceased on his head. Had Muhammad Javaid held the deceased in his clasp (Japha) first of all he must have received an injury in that process. In my view he being father of Umar Javaid (P.O.) possibility of his false implication in this case cannot be ruled out. As far as Ghulam Farid appellant is concerned, he was armed with .223 bore rifle no injury is attributed to him. Father of Adeel is in foreign country as submitted by the learned counsel for the complainant in order to his livelihood. Ghulam Farid is real uncle of Adeel and Waqas (P.Os). No injury whatsoever is attributed to him either to the deceased or to the, injured P.W. It is correct that Ehtisham Qayyum is injured in this case but there is no surety what he told before the police or before the trial Court was the whole truth. In my view Ghulam F.Arid and Javaid being the head of the family have been implicated in this case alongwith above said three absconder accused."
13. It is well settled principle of law that an appeal against the acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. There is hardly any impropriety, illegality or infirmity in the impugned judgment which is based on sound and cogent reason and does not warrant interference and is accordingly maintained.
14. In the above circumstances, we are constrained to hold that the petition has no merit which is hereby dismissed and leave refused.