Dr. ISRAR-UL-HAQ vs MUHAMMAD FAYYAZ and another

' CH. IJAZ AHMED, J.--- The brief facts out of which the present petition arises are that respondent No,1 Muhammad Fayyaz involved in case F.I.R. No,104 which was registered at Police Station Attock City on 19-6-1994 on the complaint of P.W.8 Dr. Israr-ul-Haq under sections 302/324, P.P.C. For committing murder of Abdul Khaliq deceased and launching murderous assault on Dr. Israr-ul- Haq. The facts as narrated in the F.I.R. Are as follows as noted by the learned High Court in para.3 of the impugned judgment:-- "Briefly the case of the prosecution is that Dr. Israr-ul-Haq complainant was holding lease of property tax of Municipal Committee, Attock along with Abdul Khaliq (deceased), Muhammad Fayyaz (accused) and one Qadir Khan. On checking of the accounts, it revealed that Muhammad Fayyaz was creating mischief in the partnership business for certain period. On 18-6-1994, the complainant along with Abdul Khaliq, Hussainud-Din Baig P.W.9 went to Muhammad Fayyaz at Village Shadi Khan on his personal Car No,AK-3210. They asked him to render the accounts but he taking them into confidence while coming to the office at Attock disclosed about the misappropriated amount and committed to account for the same. The accused said that till the clearing of the account, they should not bring this matter to the notice of said Qadir Khan. All the four took their dinner at the Dera of Mumtaz Khan resident of Shadi Khan where Dr. Ijaz and Yamin Khan P.W.11 were also present. After taking the meal, Dr. Ijaz Yamin and Fayyaz came to see them of and all the three departed for Attock from there by their car. The car was driven by Abdul Khaliq and on the front seat Hussain-ud-Din Baig was sidtting while the complainant was sitting on the rear seat of the car. When at about 10-30 p.m. They reached near Ice Factory of Mirza Abdul Rehman, Fayyaz appeared from behind on his Alto Car bearing No,AKA-42 and while bringing the car parallel to their car, he started firing on them indiscriminately by his rifle .222 bore. As a result, one bullet hit the deceased on right side of his head whereas two bullets hit the complainant on his right thigh. The car went out of control due to the fire-arm shot injury caused to Abdul Khaliq and after hitting a tree near the bungalow of Mirza Abdul Rehman, collided with the iron bar of the fence and stopped. Abdul Khaliq succumbed to the injuries at the spot whereas Hussain-ud-Din having received injuries on his left thigh and right cheek as a result of collision of the vehicle. Muhammad Fayyaz after firing took away his vehicle speedily. The accused while committing fraud with them had committed murder of Abdul Khaliq and launched murderous assault upon him."

' The investigating agency after investigation submitted challan against respondent No,1 before the competent Court. The trial Court/(Sessions Judge, Attock) after completing legal formalities such as framing charge, recording of evidence acquitted respondent No,1 vide its judgment dated 26-2- 1995. Petitioner/complainant being aggrieved filed Criminal Appeal No,51 of 1995 under section 417(2)(a), Cr.P.C. In the Lahore High Court Rawalpindi Bench which was dismissed vide impugned judgment dated 8-3-2004. Hence the present petition.

2. Learned counsel of the petitioner submits that both the Courts below have erred in law to acquit respondent No,1 by misreading and non-reading of the record. He further maintains that substitution is a rare phenomena qua the single accused and this fact was not considered by the Courts below in its true perspective. He further maintains that eyewitnesses P.W.8 Dr. Israrul Haq and P.W.9 Hussain-ud-Din Baig were injured eye-witnesses and this fact was also not considered by the Courts below in its true perspective. He further maintains that statement of P.W.5 Javed Iqbal and P.W.14 Muhammad Yaqoob were also misread by both the Courts below. He further urges that prosecution has proved the case against respondent No,1 beyond any shadow of doubt but both the Courts below had erred in law to discard veracity of the eyewitnesses and other witnesses. He further maintains that weapon of offence was recovered from the petitioner and both the Courts below had erred in law to acquit respondent No,1. He further maintains that both the Courts below have also erred in law to observe that statements of the eye-witnesses were not in consonance with the medical evidence. He further urges that medical evidence is in consonance with the statements of the eye-witnesses. He further urges that learned Courts below have erred in law to disbelieve the evidence of empties merely on the ground that this was recorded in the presence of respondent No,1/accused as on the face of it unfortunate. He further maintains that there was overwhelming evidence to prove the motive but the both the Courts below had erred in law to come to the conclusion that prosecution had failed to prove the motive. He further submits that both the Courts below erred to observe that respondent No,1 cannot fire with .222 rifle by bringing the car parallel to the car of the victim is too hypothetical and is not based on logic and common sense. He sums up his argument that there was no enmity between the parties and acquittal by both the Courts below of respondent No,1 is not in accordance with the settled principle of criminal jurisprudence. The vehicle in question Car No,AKA-42 which was used by respondent No,1 at the time of incident and was recovered on the same night and had contained .222 rifle which was taken Into possession and therefore, learned Courts below were not justified to discard the recovery of the vehicle and empties.

3. Learned counsel of the respondent has supported the impugned judgment.

4. We have given our due consideration to the contentions of learned counsel for the parties and perused the record. It is an admitted fact that trial Court as well as learned High. Court had acquitted respondent No,1 after proper appreciation of evidence Both the Courts below have given concurrent conclusions of innocence of respondent No,1. This Court has laid down parameters regarding interference in the cases of acquittal in Ghulam Sakindar's case PLD 1985 SC 11. The relevant observation is as follows:-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable loubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquitted will not carry the second presumption and will also thus, lose the first one cif on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principal must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusion are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

' The aforesaid judgment is upheld by this Court in various pronouncements. See Muhammad Iqbal's case 1994 SCM R 1928.

4. So keeping in view the aforesaid principles, we have appreciated the arguments addressed by the learned counsel for the parties with care. It is a settled law that substitution of innocent person when a single accused is named in a murder case is a rare pehnomenon but it depends B from case to case. In the present case, both the Courts below have given concurrent conclusion that eye-witnesses had not seen the occurrence and also have come to the conclusion that eye- witnesses account furnished by the two witnesses is not in consonance with the medical evidence.

It is also a settled law when ocular evidence is disbelieved in a criminal case then the recovery of an incriminating article in the nature of weapon of offence does not by itself proves the prosecution case. See Dhuende's case ILR 19 Lah.

995. It is pertinent to mention here that in the present case empties were recovered in the absence of respondent and were not sent to the expert till the recovery of the weapon of offence from respondent No,

1. This was noted by both the Courts below as is evident from paras.12 to 19 of the impugned judgment. However, in the interest of justice and fair play we have considered the entire evidence and all aspects of the case from the point of view that to reverse the acquittal by the High Court and replace it by a conviction are possible only if we are satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction of the offence charged. We have also considered it from the aspect of discovering whether the doubts felt by the learned Judges of the High Court were doubts arising out of and inhering in the evidence and circumstances of the case, or whether on the other hand, there were doubts of an artificial character which resided more in the minds of the learned Judges than in the matters which had been established by the evidence in the case. Our conclusion is that the doubts which induced the learned Judges in the High Court to uphold the acquittal of respondent No,1 were substantial doubts affecting the possibility of belief in the truth of the prosecution case. We find ourselves in agreement with them and at the same time independent examination of the evidence, we are clear in our mind that this is not a case in which a finding of guilty can be reached with confidence.

There is sufficient material on the record that there is a dispute between the respondent No,1 and the deceased and complainant. Therefore, both the Courts below were justified to discard their veracity as their statements D as mentioned above could not inspire confidence. It is an admitted fact that the evidence of the two eye-witnesses P.W.8 and P.W.9 having been disbelieved by the two Courts below with cogent reasons. It is also a settled law that the direct evidence having failed, the corroborative evidence is of no help. In the case in hand, the prosecution has failed to bring on record any piece of evidence to connect the respondent with the commission of offence. It is admitted fact that trial Court has acquitted the respondent after proper appreciation of evidence keeping in view the principle laid down by this Court qua appreciation of evidence. The acquittal of respondent No,1 was endorsed by the learned High Court with cogent reasons vide impugned judgment. It is also a settled law that this Court does not interfere with the concurrent conclusions reached by the Courts below with regard to the innocence of the respondent while exercising power under Article 185(3) of the Constitution as law laid down by this Court in various pronouncements. See Muhammad Ashraf's case PLD 1977 SC 538, Din Muhammad's case 1970 SCM R 857, Matiur Rehman's case 1970 SCM R 877 and. Abdul Khaliq's case 1996 SCM R 1553.

5. For what has been discussed above, this petition has no merit IF and the same is dismissed. .