BARKAT ALI vs SHAUKAT ALI and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed against the judgment dated 7th August; 2001 passed by Lahore High Court, Lahore whereby criminal appeal filed by State has been dismissed.

2. Precisely stating the facts of the case as narrated in F.I.R.Exh.P.A. I are that Barkat P.W.7 lodged a complaint Exlf.P.A. Before Hakam Ali, S.-I. Who was present at Adda Ladha Wala on 23rd March, 1990, stating that he was cultivator of Kot Shera while his elder brother Rehmat Ali P.W.6 used to reside in Gujranwala and his sons were residing in village. On 22nd March, 1990 in the evening the complainant's nephew Shah Muhammad deceased after taking his meals went to his Dera in the western side of the village at a distance of 8 acres for guarding the tubewell engine but he did not return till evening. On 23rd March, 1990 he was going in search of his nephew towards the Dera When he met Bashir Ahmad son of Peer Bakhsh who told him that dead body of Shah Muhammad was lying in a pool of blood, facing downward in the field of Nasir-ur-Din. So the complainant alongwith said Bashir Ahmad reached at the spot, saw the dead body of Shah Muhammad in the same condition in the field of Nasir-ud-Din. There were injuries on the right cheek right ribs on the front side and on the left ribs, left shoulder and left meltoid, had two injuries while his right jaw was broken and teeth had come out. The complainant expressed that some unknown persons due to some enmity had taken his nephew to that place and murdered him with fire-arms. He left behind Bashir Ahmed for guarding the dead body of deceased at the spot and was going to the Police Station when he met Hakam Ali, S.-I. And lodged the complaint Exh.P.A. The case was investigated by Hakim Ali, 5.-I. P.W.14, who after examining the dead body, prepared injury statement Exh.P.I., inquest report Exh.P.J. And sent the dead body to the mortuary for postmortem examination. During spot inspection the S.I. Collected bloodstained earth vide memo. Exh.P.D. As well as three empties P.5 to 7 from the place of occurrence vide memo. Exh.P.E. On 24th March, 1990 Muhammad Younis Constable P.W.3 produced last-worn clothes of the deceased before the Inestigating Officer who took the same into possession vide memo. Exh.P.B. On 14th April, 1990, Patwari Azmat Ullah P.W.5 after preparing the site-plan Exh.P.C.And P.C./1 delivered the same to the Investigating Officer. On 13th April, 1990 both the accused-respondents were arrested. On 15th April, 1990, Muhammad Mansha respondent led to the recovery of carbine P.5 which was taken into possession vide memo.

Exh.P.H. On the same day, Shaukat Ali respondent led to the recovery of .7 mm rifle P.8 from the cattle shedand the same was secured vide memo. Exh.P.G. After completion of investigation challan was submitted before the trial Court. Learned trial Court after taking into consideration all attending circumstances and appraising evidence available on record acquitted both the respondents of the charge vide judgment dated 20th July, 1991. Appeal filed by the State before Lahore High Court, Lahore against acquittal of respondent met the same fate by means of impugned judgment. As such instant petition has been filed.

3. Learned counsel appearing for petitioner argued that prosecution produced sufficient incriminating evidence to establish guilt against the accused including the evidence of last seen i.e, deceased in the company of respondents, recovery of empties from the place of occurrence and recovery of .7 mm rifle as well as extra judicial confession made by the accused before P.W.9.

But despite of that, they had been acquitted of the charge.

4. We have heard the learned counsel and have gone through the impugned judgment as well as the judgment of the trial Court dated 20thJuly, 1991 and have also read the evidence brought on record by the prosecution. It may be noted that both the Courts below have thoroughly examined the evidence available on record and concluded that prosecution has failed to establish accusation against the accused. It is no body's case that the evidence brought on record has not been taken into consideration either by the trial Court or by learned High Court. It is one of the settled principle of law that whenever an accused person is acquitted of a criminal charge then he enjoys double presumption of innocence; one before the trial of the case and second after his acquittal. Therefore, whenever an acquittal appeal is filed, the Courts are bound to see as to whether there is any piece of evidence which has not been considered or the evidence brought on record has been discarded for the reasons which are not recognized under the law. In the instant case, the learned High Court as well as trial Court has fully taken into consideration the prosecution evidence and no piece of evidence has been brushed aside for any extraneous consideration and finally concluded that the accused are not guilty for the offence charged. Therefore, under these circumstances, we are of the opinion that no exception can be taken to the impugned judgment.

' Thus for the foregoing reasons, we see no force in this petition as such the same is dismissed and leave declined.