MUHAMMAD TASAWEER vs Hafiz ZULKARNAIN and 2 others

' IJAZ-UL-HASSAN KHAN, .J.---Through instant petition leave has been sought against judgment dated 2-4-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, accepting appeal filed by respondents Nos. 1 and 2, setting aside their conviction and sentences recorded under section 302(b), P.P.C., by learned Additional Sessions Judge, Rawalpindi, vide judgment dated 11-10-2003 and dismissing petitioner/complainant's revision for enhancement of sentence of life imprisonment awarded to the respondents.

2. The prosecution story, in brief, is that on receipt of information on 17-12-2001 about murder of Hafiz Mansoor Ahmad, deceased, in village `Waggal' Tehsil Kotli Sattian, District Rawalpindi, S.I.

Muhammad Afzal, of Police Station Kotli Sattian, went to the spot, recorded statement of complainant/petitioner Muhammad Tasweer, father of deceased, and incorporated it in FIR No, 142 dated 18-12-2001, to the effect that on 17-12-2001 complainant was present in his sister's house in his village, when he learnt that his son Hafiz Mansoor Ahmed had died, upon which he along with his nephew Muhammad Saleem reached the house of Muhammad Abbas and found the dead body of Hafiz Mansoor Ahmad lying in the veranda of the house. The complainant also came to know that Hafiz Mansqor Ahmed died of firearm injuries and that Hafiz Saghar Bin Abbas and Zulqurnain (respondents) were accompanying the deceased before the occurrence and they might be in a position .To say something about the cause of his death. The complainant further stated that no one was inimical towards him and that after the occurrence respondents disappeared.

3. On 3-1-2002, the respondents appeared before the Investigating Officer voluntarily. Respondent Zulqurnain led to the recovery of .12 bore licensed gun of Muhammad. Abbas, father of respondent Hafiz Saghar Bin Abbas along with empty cartridge, which were taken into possession vide memo Exh.PH.

4. Dr. Shabbir Hussain, Medical Officer, Tehsil Headquarter, Hospital Murree, (P. W.6), conducted postmortem examination of deceased on 18-12-2001 and noted the following injuries:-- "A fire-arm wound of entry 1-1/2 x 1-1/4 inches on the area, of right eye margins burned.

(2) A fire-arm would of entry 1-1/2 inches x 1-1/2 inches on the fore head lower part. Bone was absent and margins were found burned.

(3) A fire-arm wound of exit 4 inches x 2 inches on the left side of the head 3 cm lateral to mid line.

Bone was absent.

' In opinion of the doctor, the deceased died due to shock, loss of blood and fatal injury to his brain.

5. Upon completion of the investigation, charge was framed against the respondents under section 302/34 PPC which was read over and explained to them, they pleaded not guilty and claimed to be tried.

6. After completion of the trial, during which the prosecution produced 11 witnesses in all, whereas respondents examined 2 witnesses in defence, learned Additional Sessions Judge, Rawalpindi, vide judgment dated 11-10-2003 convicted both the respondents under section 302(b), P.P.C. And awarded them imprisonment for life. They were also directed to pay Rs,100,000 each as compensation to legal heirs of the deceased or in default whereof, to suffer further S.I. For six months each. The respondents challenged their conviction and sentence by filing Criminal Appeal No, 485 of 2003. The complainant/petitioner also filed Criminal Revision No, 201 of 2003 seeking enhancement of sentence awarded to the respondents. A learned single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi vide impugned judgment, accepted appeal and dismissed the revision, as stated and mentioned in the opening paragraph of this judgment, necessitating the filing of instant petition.

7. We have heard Malik Waheed Anjum, learned Advocate for the petitioner/complainant and Mr. Siddique Khan Baloch, learned Deputy Prosecutor General for the State, in the light of the material on file.

8. Learned counsel for the petitioner contended with vehemence that overwhelming evidence was available on record, in the shape of evidence of Waj Takar', Muhammad Hafeez, recovery of dead body from the house of respondent Saghar Bin Abbas, recovery of crime weapon i,e, 12 bore gun, at the pointation of respondent Zulkarnain, motive and absconsion, fully proving the participation of the respondents in the commission of crime, which has not been properly examined and appreciated in its true perspective, resulting in miscarriage of justice. The learned counsel also contended that having regard to facts and circumstances of the case, learned High Court had no justification to take contrary view and pass a finding of acquittal in favour of the respondent.

9. Conversely, learned Deputy Prosecutor-General, representing the State, defended the impugned judgment maintaining that same having been passed with sound reasonings, does not suffer from any illegality or infirmity, calling for interference by this Court.

10. Having heard the arguments of learned counsel for the parties and re-examining the evidence on file, we find that learned counsel for the petitioner has not been able to point out any piece of evidence which could persuade. Us to hold that the conclusion arrived at by the High Court is against the evidence brought on record. Learned High Court has assigned cogent and valid reasons in para. Nos. 12, 13, and 14 of the impugned judgment for disbelieving the prosecution version and extending benefit of doubt to the respondents. In this context reference may be made to the cases of Sikandar Hayat v. Muhammad Nawaz and others (LJJ 1995 SC 351), Ghulam Murtaza and another v. Muhammad Akram and others (2007 SCM R 1549), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298) and Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103).

11. Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar versus Muhammad Asghar and others, (2003 SCM R 477). "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading non-reading of evidence....Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible".

12. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.

13. Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested.

14. In view of what has been discussed above, we do not find any ground to interfere with the impugned judgment which is maintained. Accordingly, the petition being devoid of force is dismissed.