MUHAMMAD SHARIF vs MUHAMMAD ASLAM and another

' MUNIR A. SHEIKH, J.---This petition is directed against judgment of Lahore High Court dated 27-12- 2001 whereby learned Single Judge, on acceptance of appeal filed by respondent-convict against his conviction and sentence of life imprisonment under section 302(b), P.P.C. Recorded by the trial Court, has acquitted him whereas criminal revision filed by the petitioner-complainant has been dismissed.

2. Respondent, along with nine others, was tried for the Qatl-i-Amd of Ihsan Ullah and for attempting to commit Qatl-i-Amd of Muhammad Shahbaz under sections 302/324/147/149, P.P.C.

3. Trial Court, after recording evidence, acquitted seven out of the ten accused, two were not tried and convicted the respondent under section 302(b), P.P.C., who was awarded life imprisonment and ordered to pay compensation of Rs,1,00,000 through judgment dated 7-7-2000. Ocular testimony of P.Ws.3 and 5 was accepted in order to hold that the prosecution had succeeded in proving the case against the respondent beyond any shadow of doubt.

4. Appeal filed by the respondent has been accepted through the impugned judgment and he has been acquitted of the charge, against which leave is sought.

5. The case of the prosecution and the evidence produced by it has been fully discussed in paragraph No,8 of the judgment, which is reproduced below:-- "8. I have heard the learned counsel for the parties. In the instant case the occurrence had taken place on 3-4-1999 at 5-30 a.m. While the police station was at a distance of 7 kms. Matter was reported to the police at 8-15 a.m. Four eye-witnesses were named in the F.I.R. But none of them bothered to inform the police about the occurrence for a long 27 hours. The explanation given in the F.I.R. And stated by the learned counsel for the complainant is that the deceased along with injured P.W. Were referred to the General Hospital, Lahore by the Doctor of Aziz Bhatti Shaheed Hospital, Gujrat and due to this reason F.I.R. Was not lodged promptly. This is not believable as one or two persons from near relatives of the deceased or injured could have gone to Lahore for their treatment but why none of the other eye-witnesses reported the matter to the police. Occurrence had taken place at 5-30 a.m. Early in the morning. The possibility of being the occurrence unwitnessed cannot be ruled out. Shahbaz injured was never produced by the prosecution. Not was spread too wide in this case that for one injury 10 persons were involved in this case but according to the prosecution case, except Muhammad Sharif and Muhammad Zamir P.W.3 and P.W.5 respectively, none other was produced as eyewitness by the prosecution. Case of the prosecution is that Mazhar acquitted accused while armed with 12 bore gun and Muhammad Aslam present appellant armed with 7 mm rifle fired at the deceased which proved effective. On the same evidence Mazhar has been acquitted by the learned trial Court for the reason that injury on the person of the deceased was caused with 7 mm rifle although there is no evidence in this regard. No lead bullet was also recovered from the wound of the deceased. There was only one injury was on the person of the deceased. Mazhar has been acquitted by the learned trial Court.

There is no independent corroboration to the ocular account in the instant case. As far as appellant is concerned, no recovery was also effected from him, even no crime empty was recovered from the spot. The Investigating Officer had declared the appellant innocent in this case and this fact was also verified by the D.S.P. Of the Circle. Although, opinion of the police is not binding on the Court but in cases of capital punishment it is duty of the prosecution to prove the case beyond any shadow of doubt. No person can be convicted or his sentence can be maintained on this sketchy type of evidence which is based on closely related witnesses. The conviction and sentence awarded to the appellant is merely on conjectures and surmises. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant is set aside. He is behind the bars. He shall be released from jail forthwith, if he is not required in any other case. Criminal Revision No,744 of 2000 is dismissed."

6. Learned counsel for the petitioner, when questioned as to how could he support this petition unless it is pointed out that the findings recorded by the High Court are artificial or perverse and based on misreading of the record was not able, to give satisfactory answer. It has been held that sole injury sustained by the deceased was not proved by 7 mm rifle allegedly held by the respondent, from which he allegedly fired, for no lead bullet was recovered from the wound of the deceased.

7. Learned Judge in Chambers of the High Court also took note of the fact that even Investigating Officer had declared the respondent as innocent, which was confirmed by D.S.P. Circle. Though, finding recorded by the police officials during investigation cannot be the sole basis for acquittal of the accused but in this case this has been taken into consideration as a circumstance in support of the findings independently arrived at, that the prosecution had failed to prove the case beyond reasonable shadow of doubt.

8. Impugned judgment does not suffer from any legal infirmity. This petition, thus, has no merits, which is accordingly dismissed and leave to appeal refused.