' CH. IFTIKHAR HUSSAIN, J.---Muhammad Ashraf appellant had brought the Petition No,13 of 1991 for Special Leave to Appeal against the judgment of acquittal of respondents Nos.1 and 2 recorded by Ch. Muhammad Iqbal Naru, the learned Additional Sessions Judge, Vehari on 30-5-1991 in the complaint case under section 302, read with section 34, P.P.C. Brought by him against them and two others namely Sabir Hussain Shah and Ahmad Bakhsh alias Ahmad.
2. On 3-12-1991, his Lordship Mr. Justice Fazal Karim ordered to be treated the same as appeal as admitted it to the extent of respondent No,1 Hafeez Ahmad and dismissed to the extent of respondent No,2 Mansha Khan. Respondent No,1 is represented by his aforesaid learned counsel.
3. Briefly the background of this appeal is that Muhammad Ashraf had brought private complaint against the above named two respondents and their co-accused Sabir Hussain Shah and Ahmad Bakhsh alias Ahmad. He accused the present respondents Nos.1 and 2 to have caused the murder of his brother Muhammad Aslam Khan in furtherance of their common intention on 16-3-1986 at about 7-00 a.m. Near Khasra No,48/49 in Chak No,88/W.B. Within the jurisdiction of the Police Station Mitroo, District Vehari with the abetment of their aforesaid co-accused Sabir Hussain Shah and Ahmad Bakhsh alias Ahmad. After preliminary inquiry, under section 202, Cr.P.C. In the same only respondents Nos.1 and 2 were summoned by the learned trial Court.
4. They were formally charged under section 302 read with section 34, P.P.C. For the murder of the deceased in furtherance of their common intention at the above said date, time and place. They pleaded not guilty.
5. The prosecution at the trial has examined it's as many as seven witnesses. They are Muhammad Ashraf, complainant (P.W.1), Munir Ahmad (P.W.2), Mahmud Ail, A.S.-I. (P.W.3), Gulzar Ahmad (P.W.4), Abdul Ghafoor (P.W.5). Mushtaq Ahmad, Inspector (P.W.6) and Dr. Muhammad Aslam (P.W.7).
6. These respondents in their examination under section 342, Cr.P.C. Denied the allegations appearing against them in the prosecution evidence. Respondent No,2, Mansha Khan pleaded innocence while . Respondent No,1 Hafeez Ahmad also pleaded similarly and his implication in the case to grudge over litigation between them and the complainant party. They produced four witnesses in their defence. They are Dr. Muhammad Hafeez, Medical Officer (D.W.1), Fazal Hussain, DSP (Rtd.) (D.W.2) and Ahmad Raza Tahir, S.P.(D.W.3). Hafeez Ahmad appeared as his own witness on oath in disproof of the allegation appearing against them in the prosecution evidence as D.W.4.
7. The learned trial Court after hearing the parties acquitted them of the charge by giving them the benefit of doubt.
8. The appellant Muhammad Ashraf has assailed their acquittal by way of the instant appeal as said above.
9. We have heard the learned counsel for the parties.
10. The learned counsel for the appellant has contended that the appellant had produced sufficient evidence on record and the same has satisfactorily proved the guilt of these acquitted respondents but the learned trail Court has erroneously proceeded to acquit them of the charge by giving them the benefit of doubt; that the reasons advanced in support of finding of their acquittal are flimsy and whimsical; and that the impugned judgment does not conform to the requirement of section 367, Cr.P.C. And so the same is not liable to be sustained.
11. As against the same, the learned counsel for respondent No,1 have supported the impugned judgment saying that the reasons advanced in his acquittal are sound, cogent and based upon evidence on record and those are not at all flimsy and whimsical; that the learned trial Court has properly kept in view the evidence on record and rightly appreciated the same; and that the impugned judgment is proper and it very much conforms to the requirement of section 367, Cr.P.C.
12. The learned counsel for the respondent No,3/State has urged nothing in the matter.
13. We have carefully considered the submissions made from both the sides and the record gone into.
14. The appellant has produced different pieces of evidence to prove the charge against the respondent No,1 and his brother Mansha Khan. These were mainly ocular account, medical evidence and motive.
15. The ocular account has been furnished by his ownself and his brother-in-law Gulzar Ahmad (P.W.4). They have reiterated almost the same version as is contained in the complaint. Their plea is that they were sitting in their brick-kiln when Muhammad Ayub son of Ghulam Akbar came to them and informed that these respondents/accused had encircled their tenant Munir Ahmad and they beat him. They, there-upon proceeded towards that place in a car. They when reached near Khasra No,48/49 of Chak No,88/W.B., these respondents were standing at the side of Katcha road.
They when came out from the car Hafeez Ahmad fired with his pistol .12 bore at Muhammad Aslam Khan deceased hitting on the right side of his abdomen, who fell down. Gulzar Ahmad was having Danda in his hand and he gave blow with the same to him (Hafeez Ahmad) and upon the same pistol fell down from his hand and the same was picked up by respondent No,2 Mansha Khan and he ran away with the same towards the Chak while firing. They escorted Muhammad Aslam Khan deceased to the Civil Hospital, Garrah More but he succumbed to his injuries in the way to the same.
16. As against the same, the plea of .The respondent No,1 Hafeez Ahmad is as follows:-- "I had warrabandi case with Asghar Khan, father of Muhammad Aslam Khan (deceased) before XEN, Irrigation who decided in my favor and against Muhammad Ashgar, father of the deceased Muhammad Aslam. They got annoyed and became vindictive towards me as I used to pursue the case against them. XEN. Irrigation ordered S.D.O. Irrigation to implement his orders in my favor.
S.D.O. Irrigation ordered Ziladar Halqa to implement the same and on 15-3-1986 Sakhawat Ali, Reader, Nazir Ahmad, Patwari and Wahad Bakhsh, Peon of the Irrigation Department came to our village and stayed for the night in the village. On 16-3-1986, at 7-00 a.m., I proceeded to Ada Chak No,88/WB alongwith Nazir, Patwari, Sakhawat Ali, Reader and Khuda Bukhsh, Peon. When we reached a little ahead of the Bhani of Nawaz Sial, a man came there and asked Nazir Ahmad, Patwari, to go to the Brick-kiln of Asghar Khan as he wants to see him. Nazir, Patwari refused to go to brick kiln to see Asghar Khan. On this, that man tried to misbehave with Nazir, Patwari.
Meanwhile, Iqbal son of Ahmad Gondal took Sakhawat and Nazir on his cycle and proceeded towards Ada Chak No,88/WB. Meanwhile Munawar son of Alam came there on his bicycle and I and Khuda Bakhsh also proceeded towards Ada Chak No,88/WB on his bicycle. After travelling little distance, the bicycle of Iqbal became out of order and he was trying to make in order his oicycle.
Meanwhile, a car reached there from the side of brick kiln of Asghar Khan and Aslam deceased came out of the car armed with .12 bore gun whereas his companion were armed with sticks and started belabouring me. Aslam deceased had loaded .12 bore gun he was beating me with the butt of .12 bore gun, while he was holding the gun by it's barrel. The butt of .12 bore gun was got broken during beating me and gun went off which hit Muhammad Aslam deceased in his belly and Aslam deceased became victim of his own aggression and due to this injury, Aslam died."
' His version when analysed in the light of the ocular account of the prosecution rendered by these witnesses, there seems reasonable possibility of it's being true firstly because that the deceased, Gulzar Ahmad and the appellant Muhammad Ashraf as per their versions had gone to the venue of occurrence empty-handed to get rescued their tenant Munir Ahmad. The karned trial Court did not believe this aspect in their version. This seemingly was right as these persons, when had received the information of the detention of their tenant by these respondents, could not go there.Empty- handed as they were likely to face some untoward situation there and hence in these circumstances they were not likely to go there empty-handed. So, this fact in their version makes the same not above doubt.
17. As against the same, the version advanced by respondent No,1, stands supported by sufficient and convincing evidence on record in the shape of the statement of Fazal Hussain, D.S.P. (Rtd.)
(D.W.2) and Ahmad Raza Tahir, S.P. (D.W.3). They both were senior police officers. They had investigated the case and have found that the deceased had died due to hitting of fire to him by his own gun, which went off in the process of beating by him to respondent No,l. This has heavily supported his (respondent No,1) version. We have not been able to find any reason to say that these police officers have deposed to favor respondents Nos.1 and 2 unnecessarily. The opinion expressed by them in the investigation of the case was of their innocence.
18. Besides than this, it has not been explained satisfactorily in their evidence that why these respondents had detained the said servant of the complainant party unnecessarily. This too is a suspicious circumstance against the truth in their story.
19. Their story has also not been proved because of the fact that firstly these respondents had no reason to encircle or detain their servant particularly when the dispute in respect of Warabandi stood resolved in favor of these respondents. So on that count they could not have any grudge against the complainant party to do away with the deceased. Thus, the motive as set up by them has not been proved and the same definitely recoils on the truth of their version.
20. The medical evidence has also lent support to the version of respondent No,1. Dr. Shamshad Hussain, Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased, had died. On the request of the appellant, Dr. Muhammad Aslam, M.O., Civil Hospital, Mailsi was summoned, who appeared in the witness-box as P.W.7 as secondary evidence. He proved the postmortem examination report Exh.P.G. And diagram Exh.P.G./1 of the injuries of the deceased to be in the hand of the said Dr. Shamshad Hussain (since dead). The following injury was found on the person of the deceased:-- "A fire-arm wound 2-1/2 in diameter round in shape of right side and lower part of abdomen 8 c.m.
Below and right to abdomen. There was blackening around the wound present. Margins were inverted and echymosed i,e, wound of enterance. There was corresponding hole present on bunyyan, shirt and sweater. Sweater had two holes due to it's foldings which are examined and initiated by him."
' This injury shows that the deceased was fired at from a very close range and rather while the fire- arm on his belly and a plastic wad was also found from in abdominal cavity of the deceased. This could only be there, if the deceased had been fired at from very close range. The broken butt of the gun D.1 was also recovered from the spot. This again supported the version of respondent No.1.
Thus, the medical evidence has negated the version of these witnesses and rather supported that of him (respondent No,1).
21. Besides than this, no incriminating article i,e, either weapon of offence or empty-cartridge was recovered from the spot. So the version of these witnesses in respect of the murder of Aslani Khan deceased by respondent No,1 by firing at him has not been proved above doubt and rather there is reasonable possibility of his above said version being true. He, therefore, was rightly acquitted of the charge by the learned trial Court by giving him the benefit of doubt.
22. It also appears that learned trial Court in doing so has properly kept in view the evidence on record and discussed and appreciated it. The impugned judgment contained reasons in support of the finding of his acquittal. So it cannot be said that it does not conform to the requirement of section 367, Cr.P.C. We, therefore, find that the instant appeal is without any merits and the same is dismissed as such.
Appeal against acquittal dismissed.