ATHAR NADEEM vs ZAHOOR AHMAD and another

' Sardar Ahmed Naeem, J.--Through this criminal appeal, the appellant Athar Nadeem has called in question the judgment dated 19.12.2012 delivered by the learned Addl. Sessions Judge, Narowal whereby, Respondent No, 1 Zahoor Ahmad, was tried in case FIR No, 85 dated 21.5.2011 under Section 302, 34, PPC registered at Police Station Ahmadabad, District Narowal, for committing Qatl-e-Amd of Javaid Iqbal, the deceased by sharing common intention with his co-accused and acquitted of the charge on the basis of benefit of doubt.

2. The prosecution story in brief was that on 21.05.2011 at about 4.00 p.m., the appellant with his brother Pervaiz Akhtar, Javaid iqbal and Aitzaz Ahmad was standing at his agricultural land when Zahoor Ahmad accused-respondent along-with his co-accused Ghulam Murtaza emerged at the scene on their motorbike. Ghulam Murtaza fired at Javaid Iqbal hitting on front of his left shoulder on the instigation/lalkara raised by Respondent No, 1, thereafter, they managed their escape.

3. In order to prove its case, the prosecution produced twelve witnesses and the said respondent also produced defence evidence including DW.1 to DW.4/1. He pleaded alibi in his statement recorded under Section 342, Cr.P.C.

4. The learned trial Court after evaluating the evidence and considering the merits of the case acquitted Zahoor Ahmad extending benefit of doubt, whereas, his co-accused Ghulam Murtaza was sentenced to death.

5. The learned counsel for the appellant contended that the judgment passed by the learned trial Court was perverse and the reasoning of the learned trial Court is artificial and not in conformity with the evidence on record; that the grounds on which he learned trial Court proceeded to acquit the accused-respondent were not supported by the evidence on record and the acquittal of the said " respondent is not sustainable under the law. He further argued that the medical evidence fully .Corroborates the charge; that learned trial Court wrongly believed the plea of alibi raised by the said respondent. Concluding his arguments learned counsel submitted that the 'minor contradictions in the statements of prosecution witnesses were natural and that the learned trial Court failed to appreciate that the lalkara raised by the respondent was of commanding nature. To augment the contentions, reliance was placed on "Iftikhar Hussain and others v. The State" (2004 SCM R 1185) and "Ghulam Sikandar and another v. Mamaraz Khan and others" (PLD 1985 SC 11).

6. Heard. Record perused.

7. The occurrence in this case took place on 21.05.2011. Javaid Iqbal lost his life during the occurrence. The episode was enacted by Ghulam Murtaza and Zahoor Ahmad, who was admittedly empty handed. Only proverbial lalkara was attributed to him. This aspect of the matter was dealt with by the learned trial Court in detail. As mentioned above, the said respondent pleaded alibi right, from the day, he joined the investigation. To prove the said alibi, he examined DW.1 and DW.2. They also appeared before the police during the investigation. The learned trial Court observed in para-32 of the impugned judgment that Aitzaz PW was the star witness who in his statement Exh.DB admitted that he had quarrel with Ghulam Murtaza accused in which while narrating the incident of Qila Ahmad Abad and did not nominate the accused-respondent Zahoor Ahmad. The learned trial Court further observed that DW.1 and DW.2 remained consistent and they had no axe to grind against the appellant. He accepted the plea of alibi ' and acquitted the said respondent.

' It is by now settled that to establish guilt against the accused beyond shadow of reasonable doubt, the prosecution is supposed to bring trust worthy, convincing and coherent evidence for the purpose of awarding conviction. Needless to emphasize, to convict a person on a capital charge, the evidence should be of high quality/standard Which is not available in this case. The judgment written by the learned trial Court is by all means a fair judgment, based, on proper, just and legal appreciation of evidence on record. The appellant miserably failed to show that the impugned judgment was fanciful or capricious, Even otherwise, when an accused person is acquitted of -the charge by a Court of competent jurisdiction, then, double presumption of innocence is attached to its order, with which this Court and the apex Court normally does not interfere with unless the impugned order is -fanciful and against the record which is not in this case. Admittedly, the scope of appeal against the acquittal is considerably narrow and limited as observed by the apex Court in "Muhammad Usman and 2 others v. The State" (1992 SCM R 489), "The State v. Muhammad Sharif and 3 others (1995 SCM R 635). The acquittal of respondent does not suffer from any illegality calling for interference by this Court. The learned trial Judge has advanced the valid and cogent reason for recording a finding of acquittal in favour of the said respondent and we see no legal justification to upset the same. Consequently, the appeal fails which is hereby dismissed in limine.