QAMAR ZAMAN Versus WASEEM IQBAL and 5 others

ORDER

ABDUL HAMEED DOGAR, J.‑‑‑ Through this criminal petition, petitioner seeks leave to appeal against the judgment dated 20‑9‑2001 whereby a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi allowed Criminal Appeal No.434/T of 2000, set aside the conviction and sentence of the respondents and acquitted them of the charges.

2. The facts in brief giving rise to the institution of the instant petition, are that petitioner/complainant is the brother of deceased Muhammad Zaman. The deceased alongwith his wife Mst. Piari Jan used to live alone. On the night in between 14/15‑10‑1999, P.W. Tikka Khan informed complainant that he had heard the sound of groaning while crossing near the house of Muhammad Zaman. On such information, petitioner went to the house of the deceased which was found locked from inside. He scaled over the wall, opened the door and went inside the room where deceased used to sleep. He found deceased Piari Jan tied with ropes and was dead, whereas deceased Muhammad Zaman was lying unconscious in injured condition: He removed the injured in a Pick‑up to the hospital but succumbed to the injuries on the way. Consequently, he lodged F.I.R. No.423 at Police Station Gujar Khan, District Rawalpindi. On coining back to the house of deceased, petitioner found 8 gold bangles, 4 gold earrings, 3 gold buttons, gold chain of deceased Piari Jan and Rs.1,450 missing.

3. Muhammad Asif, S.H.O. P.W.l5 investigated the case, arrested the respondents and recovered the stolen articles on their pointation.

4. To prove its case, prosecution examined 15 witnesses, namely, Amanullah, H.C. (P.W.1), Muhammad Azam, Constable (P.W.2), Modasar Raza, Constable (P.W.3), Ghulam Murtaza (P.W.4), Raza Hussain Shah, H.C. (P.W.5), Muhammad Zaman (P.W.6), Tikka Khan (P.W.7), Qamar Zaman (P.W.8), Nazakat Hussain (P.W.9), Subedar Abdul Kareem (P.W.10), Qamar‑ud‑Din (P.W.11), Dr. Shahida Mir (P.W.12), Dr. Muhammad Mushtaq Ahmed (P.W.13), Muhammad Jehangir (P.W.14) and Muhammad Asif, Inspector/S. H.O. (P.W.15).

5. When examined under section 342, Cr.P.C. the respondents denied all the incriminating circumstances and raised plea of false implication., Respondent Yasir Mahmood examined himself on oath in disproof of charge only and also produced Muhammad Iqbal (D.W.1), Muhammad Basharat (D.W.2), Fida Hussain (D.W.3), and Farzand Ali (D.W.4) in his defence.

6. On conclusion of trial, the learned trial Court vide judgment, dated 17‑10‑2000 convicted and sentenced the respondents as under:‑‑

(i) Under section 148, P.P.C. all the respondents were convicted and sentenced to three years' R.I. They were directed to pay a fine of Rs.1,000 each or in default to further undergo one month's R.I. each.

(ii) Under section 460, P.P.C. all the respondents were convicted and sentenced to imprisonment for life.

(iii) Under section 396, P.P.C. read with section, 149, P.P.C., respondent Wasim Iqbal was convicted and sentenced to death for the murder of deceased Muhammad Zaman whereas rest were sentenced to imprisonment for life. However, respondent Wasim Iqbal was directed to pay Rs.1 lac as compensation to the legal heirs under section 544‑A. Cr.P.C.

(iv) Under section 396, P.P.C. all the respondents were convicted and sentenced to imprisonment for life for committing murder of deceased Piari. They were further directed to pay Rs.1 lac as compensation to, the legal heirs of the deceased or in default thereof to further undergo 1 year R.I.

(v) Under section 411, P.P.C. all the respondents were convicted and sentenced for 3 year' R.I. with fine of Rs.1,000 each.

Benefit of section 382‑B, Cr.P.C. was extended to all of them with direction that sentences shall run concurrently.

7. Feeling aggrieved, the respondents filed Criminal appeal No.434/T of 2000 before learned Lahore High Court, Rawalpindi Bench, Rawalpindi which was allowed vide judgment impugned.

8. We have heard Sh. Zamir Hussain, learned Advocate Supreme Court on behalf of petitioner at length and have gone through the record and proceedings of the case in minute particulars.

9. Learned counsel for the petitioner mainly contended that the prosecution has successfully brought home guilt of tire respondents through circumstantial evidence: such as extra‑judicial confession and recovery of looted articles. According to him respondent Wasim Iqbal had confessed the commission of crime before P.W.9, Nazakat Hussain voluntarily and without any duress. The recovery of articles of the deceased from the respondents is another important piece of evidence to connect respondents with the murder of the deceased. The reasons advanced by the learned High, Court for acquitting the respondents are neither sound nor cogent but are artificial and fanciful, thus, liable to be set aside.

10. We have carefully considered the contentions raised by the learned counsel for the petitioner and are of the opinion that learned High Court after having applied its conscious mind has disbelieved all the categories of evidence relied upon by the prosecution, such as extra judicial judicial confession and incriminating recoveries made from the respondents.

11. In the instant case, the statement of P.W.9 Nazakat Hussain is of vital importance before whom it is said that respondent Waseem Iqbal confessed his guilt in the house of Banaras. We are not all impressed with the statement of P.W.9 Nazakat Hussain before whom respondent Wasim Iqbal is said to have made extra‑judicial confession for the reason that he does not appear to be a person in a commanding position so as to influence local police with a view to help him. The story of the prosecution that respondent voluntarily came to the house of Banaras and made confession runs counter to the natural probabilities and tend to, show that extra‑judicial confession was in fact not made at all.

12. The recovery of the golden articles said to be belonging to, deceased Piari Jan being articles of common pattern were neither got identified in accordance with law nor were exhibited in the trial, as such basing reliance upon the same and awarding capital punishment would not at all be justified.

13. The consideration warranting interference in appeals against acquittal and in appeals against conviction are quite different. This Court cannot interfere unless the grounds on which the High Court had acquitted the respondents 'were not supportable from the evidence on record or the judgment of acquittal is perverse and reasons thereof are artificial and ridiculous. The petitioner has failed to make out a case for interference in the impugned judgment.

14. Accordingly, the instant petition stands dismissed and leave refused.

N.H.Q./Q‑17/S Leave refused.