MUHAMMAD IJAZ AHMAD vs Raja FAHIM AFZAL and 2 others

' MUNAWAR AHMAD MIRZA, J.---This petition for leave to appeal is directed against order dated 10th March, 1996 whereby judgment dated 24th January, 1993 of learned Additional Sessions Judge, Lahore regarding acquittal of respondents (i) Raja Fahim Afzal and (ii) Mst. Gulnaz Razzaq was upheld.

2. Facts briefly mentioned are that on 27th January, 1992 at about 7-00 a.m., complainant Muhammad Ijaz lodged F.I.R. No,22 of 1992 with Police Station Defence Area Lahore alleging that on receiving telephonic information, he rushed towards Bungalow No,168-L, Lahore Cantt. Cooperative Housing Colony, Lahore belonging to his deceased brother Abdur Razzaq. On reaching there, complainant found that his brother Abdul Razzaq had already expired and respondent Mst. Gulnaz Razzaq (deceased's wife) besides her relations (i) Mst. Shahnaz Sadiq, (ii) Muhammad Rahat Sadiq, (iii) Muhammad Zahir Sadiq, (iv) Shoaib, (v) Muhammad Ali, servant, and (vi) his wife Mst.

Shahnaz were present near the dead body. The complainant was informed that three to four persons entered the house at about 4 a.m. They had tied hand, and legs of the deceased; closed his mouth with soft pads causing extreme suffocation resulting in his death. It was narrated that while escaping the accused persons also took away T.V. And V.C.R. Besides white-coloured Suzuki Car No,F-1722. Respondent No,2 (Mst. Gulnaz wife of deceased Abdul Razzaq) was, however, lying unconscious therefore, she could not provide requisite details.

3. During investigation, concerned police found respondents Raja Fahim Afzal and Mst. Gulnaz Razzaq (wife of deceased Abdul Razzaq) concerned with commission of offence and submitted challan against them. According to prosecution, the motive for crime was illicit relations which developed amongst two accused respondents through passage of time. Investigation disclosed that respondents Raja Fahim Afzal and Mst. Gulnaz Razzaq in furtherance of their common intention gagged the mouth of deceased and also inflicted him minor injuries, resulting in his instantaneous death.

4. At the commencement of trial, change was refuted by the respondents. Prosecution produced sixteen witnesses to bring home guilt against them. Medical Officer Dr. Haseeb Mushtaq deposed that death of Abdul Razzaq had occasioned on account of suffocation leading to asphyxia whereas injuries, showing abrasions and bruises were ante-mortem and simple in nature. Evidence relating to motive, recoveries, extra-judicial confession, circumstantial factors and details of investigation were brought on record. On the completion of prosecution side, accused were examined within the purview of section 342, Cr.P.C. They repudiated the allegations levelled against them and claimed to be innocent. Motive was specifically denied. However, respondents did not offer to give statement on oath. Three defence witnesses were also examined by respondent No,1 .

5. The trial Court after hearing the parties and appraisement of evidence found that charge against accused respondents could not be established, therefore, directed their acquittal by means of judgment dated 24th January, 1993. Feeling aggrieved from the above judgment directing acquittal of the respondents, State filed Criminal Appeal No,530 of 1993 whereas petitioner challenged the same through Criminal Revision No,252 of 1993 which were consolidated and decided by Lahore High Court, Lahore vide common order dated 10th March, 1996. The revision petition as well as appeal were dismissed upholding the acquittal of respondents. Operative portion of said order is reproduced below:-- "We have heard the learned Assistant Advocate-General at length and gone through the file.

Learned trial Court ruled out of consideration the extra judicial confession of Mst. Gulnaz simply on the ground that though it was allegedly made on the day of occurrence yet the first informant did not choose to disclose it to the police. It was introduced for the first time at the trial stage. As far as the extra-judicial confession of Raja Fahim Afzal, respondent, it was also allegedly made the same day before a person who was not even known to the accused Raja Fahim Afzal. After going through the reasons given by the learned trial Court, we find no exception can be taken of them. A person is not supposed to make confession of his guilt before a stranger. We are of the view that the trial Court has rightly ruled out of consideration the evidence of extra-judicial confession. As far as the recoveries in the instant case are concerned, even if they be accepted and relied upon, at its best it would be a case under section 411, P.P.C. It cannot establish the guilt of the respondent as far as section 302, P.P.C. Is concerned.

' The upshot of the above discussion is that the trial Court has rightly exercised the discretion in awarding the benefit of doubt to the respondents by acquitting them to which no exception can be taken. The appeal fails, which is accordingly dismissed'.

6. Ch. Muhammad Ashraf Azeem, learned counsel for the petitioner emphatically urged that both the Courts below have completely misappreciated the evidence drawing unwarranted conclusions which resulted in miscarriage of justice. It was contended that learned Judges of Lahore High Court had indirectly accepted recovery of stolen articles from the possession of respondent No,1, therefore, said evidence duly supplemented by extra-judicial confessions made before complainant Muhammad Ijaz (P.W.3) and Tariq Waheed (P.W.7) constituted adequate basis for holding accused respondents guilty for the offence but the Courts below have unjustifiably ignored these factors. According to learned counsel, the impugned judgment/order of two Courts below thus suffer from material defects warranting interference.

7. We have carefully perused the entire record and considered above submissions.

Firstly, it is an admitted feature of the case that there is no Ocular evidence connecting any of the respondents with commission of offence alleged against them. Most important pieces of evidence turns around extra-judicial confession allegedly made by respondents which undoubtedly suffer from glaring defects. It is surprising why complainant did not mention about making of extra- judicial confession by Mst. Gulnaz Razzaq while lodging F.I.R. Or subsequently at any stage of the investigation. It is pertinent to note that (P.W.3) complainant Muhammad Ijaz for the first time made disclosure of extra-judicial confession of respondent Gulnaz Razzaq during his deposition before trial. Court on 13th September, 1992. Similarly, P.W.7 Tariq Waheed revealed making of extra- judicial confession to him by respondent Raja Fahim Afzal which has been brought to light when giving statement before the trial Court on 21st November, 1992. Thus unexplained silence of these two important witnesses for such long period, raises serious doubt about its genuineness and reliability of their respective testimony. Even otherwise, there does not appear any independent corroboration or unimpeachable circumstances to substantiate this portion of accusations. Over all impact of events clearly suggests that version of these witnesses regarding extra-judicial confession is neither probable nor confidence inspiring. Both the forums below have given sound and cogent reasons, concerning gross inability of prosecution to establish criminal offence against the accused respondents.

8. Secondly, it may be seen that ordinarily scope of petition or appeal against the acquittal of accused is considerably narrow and limited. This Court in Ghulam Sikandar and another v.

Mamaraz Khan and others PLD 1985 SC 11 has authoritatively ruled that whole examining defects about order of acquittal, substantial weight should be given to the findings of subordinate Courts whereby accused are exonerated from committing the crime. Obviously approach for dealing with appeal against conviction would be different and distinguishable from appeal against acquittal, because presumption of double innocence is attached in the later case. On thorough re- evaluating of evidence and minute scrutiny of entire record, we genuinely feel that prosecution could not substantiate the accusations or produce tangible evidence reasonably connecting the accused respondents for causing murder of deceased Abdur Razzaq. There is E hardly any impropriety, illegality or infirmity in the concurrent finding based on sound and cogent reasons which may warrant interference.

9. In the above discussed circumstances, we unhesitatingly hold that petition has no merit.

Accordingly, leave to appeal is refused.