SHAHID ABBAS vs SHAHBAZ and others

' SYED SAKHI HUSSAIN BOKHARI, J.--- Shahid Abbas has filed this petition for leave to appeal against the judgment, dated 26-2-2007 passed by Lahore High Court, Lahore whereby appeal brought by Shahbaz, respondent was accepted and he was acquitted in case F.I.R. No,222, under section 302/34, P.P.C., registered at Police Station Tatlay Aali on 14-6-2001 regarding murder of Ghulam Abbas.

2. Relevant facts for the disposal of this petition are that petitioner got registered aforesaid case against Shahbaz respondent and his father Dilshad. The prosecution story has been given in para.3 of the impugned judgment, which reads as under:- "(3) Succinctly, the facts of the case, per F.I.R. Exh.P.H. Recorded by Mushtaq Ahmad, S.-I./P.W.13, on 14-6-2001 at 8-30 a.m. At the instance of Shahid Abbas, complainant/P.W.9, are that on 12-6-2001 at about 7-30 a.m., the complainant, his father Ghulam Abbas deceased, brother Zahid Abbas/P.W.10 and grandfather Abdul Ghaffar Khan were returning to their village after plucking Tindas from their fields to sell the same in the market. Ghulam Abbas was ahead, while the complainant, his brother Zahid Abbas and grandfather Abdul Ghaffar Khan were following him.

When they reached near Rajbah near their village, all of a sudden Shahbaz appellant while armed with .12 bore double-barrel gun and his father Dilshad/acquitted accused empty-handed emerged out of Jawar crop. Dilshad raised Lalkara to teach a lesson to Ghulam Abbas for not giving share from the property. Shahbaz caused two successive fires upon the deceased. One fire hit the deceased on his right buttock, in view whereof Ghulam Abbas fell down, while the second fire hit the deceased on his chest. The grandfather of the complainant asked to catch hold of Shahbaz but Shahbaz while resorting to fire and his father Dilshad raising Lalkara ran away. The complainant along with the P.Ws. Firstly took Ghulam Abbas in injured condition to Kamonki Hospital from where he was referred to Mayo Hospital, Lahore, where he was got admitted and had succumbed to the injuries on 24-6-2001.

' As to the motive, it was alleged that Shahbaz appellant used to pose himself to be the grandson of Abdul Ghaffar Khan. Both the appellant and his acquitted co-accused Dilshad committed the murder of the deceased for nothing. As the deceased was in serious condition, the matter could not be reported well in time."

3. The case was registered at the instance of petitioner and after usual investigation respondent and his father, Dilshad were challaned and they faced trial. After recording evidence, trial Court convicted Shahbaz respondent under section 302(b), P.P.C. And sentenced him to death whereas his co-accused Dilshad was acquitted vide judgment 28-2-2002. Shahbaz, respondent filed appeal thereagainst which was accepted vide impugned judgment and Murder Reference was answered in negative. Hence this, petition for leave to appeal has been filed by petitioner/ complainant.

4. We have heard the learned counsel for the petitioner and perused the record. Learned counsel for the petitioner seeks leave on the grounds that prosecution has proved its case against respondent beyond reasonable doubt; that medical evidence conforms to the ocular account furnished by eye-witnesses; that soon after the occurrence deceased was taken to Mayo Hospital, Lahore, therefore, delay in lodging the F.I.R. Has been explained and that learned High Court has discarded the prosecution evidence without any justification and cogent reasons. As mentioned above prosecution case is that on 12-6-2001 at about 8-30 a.m. Dilshad (father of Shahbaz, accused/respondent) raised `Lalkara' whereas Shahbaz, respondent fired at Ghulam Abbas, deceased with his .12 bore double-barrel gun as a result of which he died. Prosecution examined two eye-witnesses (P.W.9, Shahid Abbas and P.W.10, Zahid Abbas, both sons of Ghulam Abbas deceased) to prove its case. The impugned judgment shows that learned High Court acquitted the respondent on the grounds that Abdul Ghaffar Khan, father of Ghulam Abbas, deceased and grandfather of petitioner was a material witness but he was not examined by the prosecution; that there was unexplained delay in lodging F.I.R.; that medical evidence does not support prosecution version; that eye-witnesses were not present at the time of occurrence and that possibility cannot be ruled out that accused were falsely implicated in this case due to enmity. We have gone through the record very carefully and find that learned High Court has acquitted the respondent after appraisal of entire material available on record. Admittedly there is inordinate delay in lodging the F.I.R. And there is no reasonable explanation about the same which makes the prosecution case doubtful. According to prosecution case at the relevant time P.W.9, Shahid Abbas and P.W.10, Zahid Abbas were present along with their father Ghulam Abbas, deceased. However, they did not try to save their father. It does not sound to be natural that real sons would allow the assailants to kill their father in their presence as silent spectators. So their presence at the scene of occurrence at the relevant time is doubtful. Admittedly there was enmity between the parties prior to this occurrence due to dispute of property of father of deceased. No empty was recovered from the spot, therefore, recovery of gun has no value. In these circumstances we find that prosecution has failed to prove its case against respondent. It is now well-settled that there are different parameters for interference in an appeal against acquittal and appeal of conviction. In case of acquittal the presumption of innocence of the accused becomes double. The Supreme Court would not interfere unless the conclusion rendered by Courts below was such that no reasonable person would conceivably reach the same and grounds given by High Court are not supportable from the evidence on record. Moreover, in case of acquittal Supreme Court only interferes to avoid grave miscarriage of justice and when judgment of acquittal is perverse, capricious or arbitrary as laid down by this Court in the case of Muhammad Iqbal v. Abid Hussain 1994 SCM R 1928. We have scanned the evidence available on record and find no miscarriage of justice qua the acquittal of respondent. The judgment of learned High Court is not perverse and reasons shown therefor are not artificial or capricious. So in the circumstances of the case there is no illegality or infirmity in the impugned judgment so as to warrant interference by this Court. No case for reappraisal of evidence is made out. As such petition lacking in merit is dismissed and .