2004 PLP 1185 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑

Above appeal calls in question judgment dated 18th October, 2001 passed by the Lahore High Court, Rawalpindi Bench whereby Acquittal Appeal bearing No.88 of 1982 filed by the State has been allowed as a result whereof appellants have been convicted/sentenced as follows:‑ Under Section 302, P.P.C. Imprisonment for life and to pay fine, of Rs.2,00,000/‑ each or in default in the payment of fine, to undergo one year S.I. The amount of fine if recovered was to be paid as compensation equally to legal heirs of the two deceased under section 544‑A Cr.P.C. Benefit of Section 382‑B Cr. P. C. was also extended to them" The appeal against seven acquitted accused was dismissed. Therefore complainant has filed Petition for Leave to Appeal being No.293 of 2001 for enhancement of the sentence of the appellant‑Iftikhar and Khalid (since dead) and also to challenge the acquittal of the respondents Altaf Hussain and Noor Hussain sons of Muhammad Hussain. As the judgment of the High Court is common in both the eases, therefore, we propose to dispose them of by means of instant judgment. Appellant Khalid son of Gul Hassan had died in custody during pendency of appeal, therefore; to his extent, appeal has abated.

2. Facts of the prosecution case as have been disclosed in F.I.R. (Exh.P.C./1) are that on 17th February, 1977 at about 4‑30 p.m., P.W. Muhammad Faazil (complainant) alongwith Muhammad Sarwar, P.W. Ali Asghar as well as Qamar Zaman and Khaliq Dad deceased were sitting in the courtyard of the Baithak of Qamar Zaman. At that time, Noor Hussain, Altaf Hussain, Khalid, Ali Muhammad, Muhammad Aurgangzeb and Muhammad Waris armed with pistols, Iftikhar Hussain (appellant No. 1) and Tahir armed with .7 MM rifles appeared from the side of Mandra Bazar. They raised lalkara stating that they would not spare the complainant side and would revenge the murder of Gul Hassan. On this, the victim party stood up and Qamar Zaman deceased to save his life ran towards his residential room. Altaf Hussain acquitted accused fired at his back with his pistol which hit him on his right buttock on which he fell down on the ground. Noor Hussain fired with his pistol on the right buttock and the left flank of Qamar Zaman. Khaliq Dad deceased who was brother‑in‑law of Qamar Zaman bent on the person of Qamar Zaman for saving him. On this, Iftikhar Hussain appellant No.1 fired with his .7 mm rifle at Khaiq Dad deceased hitting him on the left side of his back, as such, Khaliq Dad fell down and died at the spot. Acquitted accused Muhammad Ramzan then fired with his pistol at Muhammad Faazil but he was spared and it hit Iftikhar respondent on the lower part of his left leg. Noor Hussain and another accused fired with their weapons but the complainant party ran away inside their residential rooms. After the happening of the incident, P.W. Muhammad Faazil got recorded his statement (Exh.P.C.) on the basis of which F.I.R. Was registered at the Police Station. The Investigating Officer visited the place of incident where he found Qamar Zaman lying in injured condition, therefore, he managed to send him to Civil Hospital, Gujjar Khan for the medical examination. Inquest report of the dead body of Khaliq Dad was prepared as Exh.P.U. and injury statement Exh.P.V. He besides taking into custody other, incriminating articles, took into possession six bullet empties of .7 MM rifle P.10 to P.15, one missed bullet of .7 MM rifle P.16, five bullet empties of .32 bore P.17 to P.21 and one missed bullet of .32 bore P.22 from the place of incident. Qamar Zaman succumbed to his injuries in the Hospital, as such, he proceeded there and prepared injury statement Exh.P.W. and inquest report Exh.P.X. On 20th February, 1977 appellant Iftikhar was arrested when he was present in village Kakri at the Baithak of one Abdul Khaliq Statedly Iftikhar had .7 MM rifle (Exh.P.13) in his possession which was taken into possession vide memo Exh.P.5. At the time of his arrest, Iftikhar accused was in an injured condition. He 'prepared his injury statement Exh.P.Y. and took him to Civil Hospital Gujjar Khan for his medical examination. It is to be noted that Investigating Officer himself obtained opinion from the Doctor by sending an application to him dated 23rd February, 1977 about the duration, distance and weapon of the offence which caused injuries on the person of appellant Iftikhar Hussain. Similarly, other accused persons who were nine in number were arrested on different dates. On completion of investigation of the case, all of them were sent up to face trial.

3. Learned Additional Sessions Judge read over the charge to the appellants to which they pleaded not guilty, as such prosecution to substantiate accusation against the accused persons produced evidence including the ocular evidence of P.Ws. Muhammad Faazil, Asghar Ali sons of Muhammad Hussain (both brothers) and Mazhar Hussain. Thereafter, appellant Iftikhar Hussain and other accused were examined under section 342 Cr.P.C. They denied the prosecution case and pleaded innocence. However, Iftikhar Hussain who was admittedly found injured during this incident gave following version of the incident:‑ "Q.No.9. Why this case against you and why P.Ws have deposed against you? Ans. Actually on the day of incident in the evening when I was hoisting the flag of the independent candidate Malik Mehboob for the National Assembly seat of that area who was contesting the election against Raja Abdul Aziz Bhatti mentioned above, as we were his supporters in front of the hotel of Qamar Zaman deceased. On that Qamar Zaman and Khaliq Dad deceased alongwith one Adalat, alias Titi reached there and forced us not to hoist the flag but my companions Pervez and Aurangzeb, the real brothers inter se and sons of Muhammad Hussain my relatives and thyself insisted to hoist the flag and refuted the suggestion of the deceased which 'infuriated them and they started abusing us upon which we also returned them abuses and as a result Adalat Hussain Titi who was having a .12 bore pistol and Qamar Zaman deceased who was having a pistol started firing at us on the exhortation of Khaliq Dad deceased. Qamar Zaman's fire hit my left leg fracturing my bone and felled me down on the ground. In the meanwhile Riaz the real brother of my companions alongwith his brother Fayyaz reached there and Riaz with his own licenced revolver started firing on the deceased and the fire shots hit Qamar Zaman, he fell down and at that time Khaliq Dad deceased tried to pick up the pistol of Qamar Zaman and apprehending further danger the above named Riaz fired another fire shot and incidentally same hit Khaliq Dad deceased. The entire action taken by the above said Riaz was simply to save my life and lives of his real brothers at the hands of the deceased. None of the so called eye‑witnesses was present at the relevant time on the spot and I was taken into custody by the police to whom I had narrated these facts immediately but no proceedings were initiated against the complainant party for the reasons mentioned above. This high‑handedness was brought to the notice of higher authorities by my mother Mst. Maqbool Jan soon after the incident through telegram and petitions but all had gone in vain due to the pressure of PPP on the local administration, as the entire administration at the relevant time was a puppet in the hands of PPP. The police avoided to get me medically examined for some days and had been fabricating different versions in connivance with the complainant party and lastly finalized the version put forward before this Honourable Court which is false and frivolous and is the outcome of the so many brains of the then party to power. However later on fortunately when was released on interim bail to take my Intermediate examination I availed the opportunity and filed a complaint Ex.D.M'. in the Court of Illaqa Magistrate who was entrusted with the enquiry by the learned Sessions Judge, Rawalpindi and after conducting a thorough enquiry the learned Illaqa Magistrate was pleased to hold my version as prima facie correct and as a result summoned the accused in the said The order of the learned Magistrate in this behalf is Ex.D.O. when I was taken into custody from the spot on the relevant date the flag to question was also taken into possession by the police alongwith .12 bore pistol of Adalat Hussain alias Titi mentioned above but deliberately and maliciously destroyed the same later on.

4. Learned Additional Sessions Judge on having completed the trial vide judgment dated 25th July, 1981 acquitted all the accused who faced trial before him. The State preferred Acquittal Appeal No.88 of 1982. A learned Division Bench of the High Court vide impugned judgment dated 18th October, 2001 accepted the appeal as has already been detailed herein above.

5. Learned counsel for appellants contended that impugned judgment has been passed by the High Court contrary to the principles laid down by the superior Courts relating to interference in the acquittal orders passed by the trial Court. To substantiate his plea, he stated that learned Additional Sessions Judge after having undertaken detailed discussion of available record particularly the statements of the eye witnesses i.e. P.W. Muhammad Faazil, Asghar Ali sons of Muhammad Hussain as well as Mazhar Hussain acquitted. them of the charge but learned High Court without even mentioning a single word about the reasoning advanced by the learned Additional Sessions Judge for not believing their evidence convicted/sentenced them on the basis of surmises and conjectures.

6. On the other hand, learned counsel for the complainant contended that incident had taken place in the Baithak of the complainant, during broad‑daylight in presence of eye‑witnesses P.W. Muhammad Faazil, Asghar Ali as well as Mazhar Hussain, F.I.R. was lodged promptly with P.W. Saleem Akhtar S.H.O./Investigating Officer of Mandra Police Station to whom P.W. Muhammad Faazil met near Bus Adda situated near the Police Station. Investigating Officer on having reached at the place of incident collected six crime empties of .7 mm rifle alongwith a missed bullet of .7 MM from the place of incident in presence of reliable witnesses and sealed them at the spot. Subsequently an 17th February, 1977 (20th February, 1977) Iftikhar Hussain appellant was arrested alongwith crime weapon .7 MM. The crime empties and crime weapon both were sent for the report of Forensic Science Laboratory who gave positive report Exh.P.DD. Therefore, overwhelming incriminating evidence has been rightly believed by the learned High Court to convict/sentence appellant under section 302, P. P. C.

7. Mr. Muhammad Zaman Bhatti, learned Counsel for the State frankly conceded that High Court had awarded conviction to appellant without discussing incriminating evidence available on record but according to him, the convict‑appellant should not be acquitted of the charge for this reason alone because this Court itself can undertake the appreciation of evidence in the interest of justice, as overwhelming incriminating evidence is available on record against appellant Iftikhar Hussain warranting his conviction.

8. It is to be noted that as per the contents of F.I.R. Exh. P. C. / 1, nine persons whose names have been mentioned therein were charged for the offence of murder of Qamar Zaman and Khaliq Dad. Learned trial Court did not believe ocular evidence alongwith the circumstantial evidence produced by prosecution qua the accused who faced trial as a result whereof they were acquitted of the charge.

9. The State filed appeal against all the accused persons challenging their acquittal but same was accepted to the extent of appellant Iftikhar Hussain and Khalid Mehmood (late) and it was rejected against remaining accused which mean that to their extent prosecution case was disbelieved. Petitioner‑complainant Muhammad Faazil challenged impugned judgment by filing Criminal Petition No.293 of 2001 to the extent of the appellant as well as Altaf Hussain and Noor Hussain but so far leave to appeal has not been granted in it. Therefore, inference would be that he had also conceded the judgment of the High Court as well as the trial Court to the extent of five person namely, Muhammad Ramzan, Ali Muhammad, Aurangzeb, Muhammad Banaras and Tahir. As such, first of all the case of convict appellant Iftikhar Hussain shall be examined and thereafter if need be, case of the respondents Altaf Hussain and Noor Hussain will be considered on merits.

10. Before dilating upon respective contentions of parties counsel it is necessary to take note of following important aspects of the case:‑ (i) Iftikhar Hussain appellant was taken into custody from the place of incident in an injured condition on 17th February, 1977 as per the statement of P.W. Azam Constable; (ii) Iftikhar Hussain appellant, however, was shown to have been arrested by the police on 20th February, 1977, and after his arrest, he was taken to the Civil Hospital Gujjar Khan for medical examination where he was examined by Dr. Muhammad Sami Tariq P.W. who noticed following injuries on his person: (a) A circular lacerated wound of inlet with margins inwards and inside scorched and blackened 1/8" all around with reddish inflammed area of 1/6" around it. Wound measured 7‑1/2" below the tibia tubersoity situated border of the left lower leg. The wound measured "X ". The swollen area around the wound was 5/8" X 5/8". (b) A wound of outlet with margins outwards 3/4" lower level of the inlet wound. There was also an area of reddish inflammed zone 1/8" all around. The swollen area around is 1" x 1". There was no pus formation in the inlet or in. the outlet. These wounds were dressed before examination". As per medical report Exh.P.O., duration of wounds of appellant was shown to be 36 to 48 hours and fire‑arm was used for causing injuries to him.

11. It is equally important that learned trial Court while discussing points under consideration disbelieved the prosecution case qua the lodging of F.I.R. promptly, place of incident, recovery of incriminating articles and ocular testimony by making following observations:‑‑ (A) Lodging of F.I.R. after preliminary investigation; etc. "...Thus the receipt of complaint Exh.P.C. at the Police Station at 5‑25 p.m. on 17‑2‑1977 and recording of formal F.I.R. has become extremely doubtful and the prosecution has thus failed to prove that the F.I.R. R.C./1 was registered at the police station at 5‑25 p.m. on the basis of the complaint Exh.P.C. It is thus clear from the said facts that the F. I. R. in this case was recorded after preliminary investigations and on the next day the false documents were prepared by the Investigating Officer. Where F.I.R. is recorded after preliminary investigations, the obvious presumption which follows is that the witnesses were not present at the place of occurrence, the accused were not identifiable and after due deliberation a story was cooked up fitting each accused in the occurrence according to the plan. In the criminal cases, F.I.R. is the corner stone of the case and where recording of the F.I.R. becomes doubtful then the whole prosecution version ahd the story set out in the F.I.R. itself would be doubtful. (B) Place of incident ...Thus according to the ocular version the place of occurrence is courtyard of the Baithak of Qamar Zaman deceased but the recovery memos Exh.P.E. and Exh.P.E. do not mention that the blood‑stained earth was taken into possession from the courtyard of the Baithak of Qamar Zaman deceased. Therefore, the recovery of blood‑stained earth does not establish any definite place where Qamar Zaman and Khaliq Dad deceased received the fire shots. (C) Recovery of incriminating articles: ...Thus the presence of crime empties at the place of occurrence and these being taken into possession by the police appears to be a doubtful circumstance. ...Therefore the fact that the crime empties matched with the weapons allegedly, recovered from the accused according to the Fire‑arm Expert Report is of no avail to the prosecution. Therefore, the recovery evidence as produced by the prosecution does not advance the prosecution case and is not confidence inspiring". (D) Ocular testimony is not believable: ...51. It has come in the evidence of all the three eye‑witnesses that there were shops near the place of occurrence which were open and then the hotel of Qamar Zaman deceased in front of which the occurrence took place was also open and the said hotel had been leased out to some one and 2/3 persons used to work there and then the Mandra Bazar is also situated near the place of occurrence wherein many shops were open and no such person having his business near the place of occurrence has been produced to support the prosecution version. The witnesses P.Ws.12 and 13 are chance witnesses, inimical to the accused having motive to implicate the accused in this case. The evidence of Mazhar Hussain P.W.14 also suffers from material improbabilities and cannot be used to corroborate the evidence of P.W.12 and P.W.13. Therefore, the ocular evidence produced by the prosecution is least confidence‑inspiring and cannot be believed.

12. Above observation reveals that learned trial Court had taken into consideration all important aspects of the case but on the other hand the learned High. Court did not controvert the above findings of trial Court by advancing cogent and convincing reasons inasmuch as there is absolutely no mention that on which basis or principle of law learned High Court was impressed to convert acquittal into conviction of the appellant.

13. It is well‑settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr. P. C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always" possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles fox interference in the acquittal judgment as held in the case of Ghulam Sikandar and another versus Mamaraz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C. is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence illegally. We have noted with concern that learned High Court in the impugned judgment had not applied these principles in the case in hand for the purpose of making interference in acquittal order dated 25‑7‑1981 passed by learned trial Court.

14. This Court normally avoids to undertake the process of appreciation of evidence in exercise of its Constitutional jurisdiction but in peculiar circumstances of a case to ensure that injustices not caused on account of the conduct of the Court who failed tip exercise its jurisdiction without application of mind or law on the subject or recognized principles of administration of justice on the subject, it undertakes reappraisal of the evidence itself for safe administration of justice. Instant case is pending before different Courts since 1977, therefore, from this angle as well, we did not consider it proper to remand the case to the High Court for assigning reasons to convey: the acquittal into conviction and decided to examine the case independently in view of above observations.

15. Prosecution case is that F.I.R. under section 154, Cr.P.C. was lodged promptly nominating nine persons to be the accused for the commission of the offence alongwith names of eye‑witnesses .as such, false implication of the accused persons is impossible. But this statement of law can only be accepted after thorough examination of its case. A perusal of the evidence so brought on record indicates that Police Station is situated at a short distance from the place of incident and as per the version of P.W. Muhammad Azam, he accompanied P.W. Raja. Saleem Akhtar S.‑I./S.H.O. to the place of occurrence or hearing the fire shot reports. At the spot, they met P.W. Raja Faazil (complainant). At that time, appellant Iftikhar was lying in an injured condition at the place of occurrence. He was taken into custody. As far as Qamar Zaman deceased is concerned, he was not lying in an injured condition at the place, of incident. This version of the witness runs contrary to stand of the prosecution version i.e. Muhammad Faazil met Raja Saleem Akhtar at the Mandra Bus Adda as he was going to lodge report about the incident: From such contradiction, one view out of the two could be that after the happening of the incident, P.W. Muhammad Faazil did riot rush to the Police Station for lodging report. He remained present at the spot when the police itself reached there but the lodging of the F.I.R. was delayed intentionally, and after having conducted preliminary inquiries or C consultation, F.I.R. was lodged with delay. To further substantiate this aspect of the case, reference may be made to the statement of P.W. Niaz Ali Moharir who had recorded F.I.R. (Exh.P.C.) on receipt of a complaint sent by P.W. Raja, Saleem Akhtar. In crops‑examination, he produced loose papers of Roznamcha Exh.D.A. written on 17‑2‑1977. It contains complete statement of events which had taken place on said date but it do not find mention in respect of present incident which took place in close vicinity of Police Station in which two persons were murdered. As per Police Rules, whenever an incident cognizable by the police takes place in the jurisdiction of police station, it is the duty of police to incorporate such fact in Daily Roznamcha mentioning therein the number of the F.I.R. and brief facts in respect of commission of the crime. Exh.D.A, reveals that on the said date, no F.I.R. was registered about such an important incident, as nothing was mentioned in this behalf in Daily Roznamcha. The record further reveals that even Roznamcha was not kept in the proper form according to the Police Rules and in order to manipulate certain entries regarding happening of the incident in the area, Daily Roznamcha was being maintained on the loose papers. Since there is a documentary evidence Exh.D.A. dated 17‑2‑1977 which clearly indicates that no proper entries were made about happening of the incident, therefore, no other inference can be drawn except that F.I.R. was not lodged promptly.

16. As far as F.I.R: under section 154, Cr.P.C. itself is concerned, it is always treated to be a corner stone of the prosecution case to establish guilt against culprits involved in the crime. Thus it has got a very significant role to play. If there is any doubt in lodging of F.I.R. and commencement of investigation, it gives rise to a doubt in benefit of which, of course, cannot be extended to anyone else except to the accused. However, an F.I.R. under section 154, Cr.P.C. which has been lodged after conducting an inquiry loses its evidentiary value as held in the cases of Muhammad Hanif v. State PLD 1977 Lah. 1253, Mst. Muhammadia v. Zari Bacha and another PLD 1982 Pesh. 85, Nazir Masih v. State 1997 MLD 48, Muhammad Javed v. S.S.P. Gujranwala and others PLD 1.998 Lah. 214 and Qazi Muhammad Javed v. S.S.P. Gujranwala and others 1999 PCr.LJ 1645. It is also to be borne in mind that merely for such reason that F.I.R. has been registered under section 154, Cr.P.C. before conducting a preliminary inquiry, the prosecution case cannot be disbelieved but such act on the part of the Investigating Officer puts the Court on guard and persuades it to conduct a close scrutiny of the prosecution case with a view to avoid false implication of accused nominated for the commission of offence.

17. Learned trial Court disbelieved evidence of ocular witnesses, namely, P.W. Muhammad Faazil, P.W. Ali Asghar as well as Mazhar Hussain who have nominated nine persons in commission of offence and acquitted them of the charge. The complainant did not challenge acquittal order passed by the trial Court by filing an appeal before High Court. However on appeal filed by State against them except Khalid Mehmood (late) and Iftikhar Hussain appellant, rest were found innocent, as judgment of trial Court to their extent was maintained. Interestingly, Petition for Leave to Appeal bearing No.293 of 2001 has been filed by P.W. Muhammad Faazil (complainant) wherein appellant, Altaf Hussain, Noor Hussain and Khalid Mehmood have been cited as respondents to challenge impugned judgment to their extent only which means the judgments of the trial Court as well as the High Court have been conceded to alongwith observations of the trial Court that ocular evidence furnished by P.Ws. Muhammad Faazil, Ali Asghar and Mazhar Hussain is not believable against remaining accused. It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1738, relevant para. therefrom is reproduced hereinbelow thus:‑‑ "The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over‑worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e. sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502, Tawaib Khan and another v. The State PLD 1970 SC 13, Bakka v. The State 1977 SCMR 150, Khairu and another v. The State 1981 SCMR 1136, Ziaullah v. The State 1993 SCMR 155, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, Shahid Raza and another v. The State 1992 SCMR 1647, Irshad Ahmed and others v. The State and others PLD 1996 SC 138 and Ahmad Khan v. The State 1990 SCMR 803." Thus in view of ratio decidendi of the judgment noted in above para, it is essential to search for independent corroboration for statements of P.Ws. Muhammad Faazil, Ali Asghar as well as Mazhar Hussain on material points. As far as last mentioned witness is concerned, he has been treated to be a chance witness by trial Court. A careful perusal of his statement indicates that his presence at the place of incident is not justified because on fateful day, he boarded a bus from a Government Transport from Rawalpindi and alighted at Mandra on his way to Chakwal. He stated that when he was waiting at the Mandra Bus Stand to take the bus from there to drop him at village Bangali which is towards Chakwal side, the accused persons who were named in the F.I.R. called out a Lalkara that they had come to avenge the murder of Gul Hassan upon which the accused persons attacked upon the complainant party as a result whereof Qamar Zaman sustained injuries on account of which he fell down whereas Khaliq Dad died at the spot instantaneously on account of fire arm wound. It is not understandable if this witness had to go to village Bangali towards Chakwal why he did not board a bus from Rawalpindi and how it is possible that after the commission of the offence, he will continuously remain present at Mandra Bus Stand till 8‑00 0 O'clock when on the same date he was examined by the Investigating Officer. It is to be noted that in his cross‑examination, defence successfully, brought on record material contradictions which have impaired the intrinsic value of his evidence. We are conscious of the fact that evidence of a chance witness cannot be brushed aside merely for the reason that he happened to be at the place of incident incidentally but to accept evidence of such witness his presence at the spot is deemed to be necessary and prosecution supposed to bring on record convincing evidence to establish the same. As laid down in a number of cases including Khalid Javed and another v. The State 2003 SCMR 1419. Record of case is silent to indicate convincing and reliable evidence to justify presence of P.W. Mazhar Hussain at the place of incident when allegedly appellant Iftikhar Hussain along with others accomplished their object. Thus .we are in agreement with learned trial‑Court that evidence furnished by him is not acceptable because he was a chance witness.

18. As far as P.W. Muhammad Faazil and Asghar Ali are concerned though they have supported prosecution version as per the contents of the F.I.R. while recording their examination‑in‑chief but in cross‑examination, the credibility of their evidence has been shaken badly. Besides it, the statements of these witnesses could only be accepted to convict the appellant if corroborative evidence is available on record because both of them have not been found truthful against seven accused persons out of the nine. As has been discussed hereinabove, prosecution possesses no independent corroborative evidence to persuade us that at least to the extent of appellant they have deposed the whole truth. In this behalf, reference may be made to the observations of the learned trial Court of some of the important aspects discussed in the judgment, conclusion therefrom have been reproduced hereinabove. A perusal whereof would indicate that it is a case in which F.I.R. has been registered after consultation and conducting preliminary investigation. If both these witnesses in fact had witnessed the incident, there was no occasion to cause delay in lodging of F.I.R. It is significant to note that delay in lodging F.I.R. under section 154, Cr.P.C. is condonable keeping in view the facts and circumstances of each case particularly in those cases where the accused persons have not been nominated in the F.I.R. and the names of the witnesses who have seen the incident have also not been mentioned but where the complainant is fully aware about the culprits and the names of the witnesses are also known to him then if delay in lodging F.I.R. is caused, it creates heavy duty upon the prosecution to explain the same satisfactorily otherwise the prosecution case would become doubtful. Likewise sufficient evidence is available on record to suggest that instant incident had not taken place in the manner as it has been disclosed in front of the Baithak of complainant Muhammad Faazil because no blood‑stained earth was taken into possession from the said place, therefore, it is doubtful to hold as to whether incident took place at the spot identified in Exh.P.10 or somewhere else. Learned trial Court on having discussed evidence available on record has concluded that the incident had not taken place in the courtyard of the Baithak of the complainant. The reasons so assigned by learned Additional Sessions Judge are based on discussion of evidence. We ourselves have also examined this aspect of the case thoroughly and independently. We are persuaded to subscribe the view point taken by the learned Additional Sessions Judge in this behalf:

19. As far as the recoveries are concerned, those also seem to be doubtful particularly in respect of recovery of crime weapon i.e licensed rifle recovered from possession of Iftikhar Hussain who was allegedly arrested on 20th February, 1977 whereas prosecution own witness namely P. W. Muhammad Azam has stated that appellant was arrested on the day of incident i.e 17th February, 1977 at the spot where he was lying in an injured condition, therefore, if this version of the prosecution witness is accepted, it would mean that the recovery of the licensed rifle from possession of the appellant on 20th February, 1977 is false. Besides it is not understandable that how a person who has committed crime on 17th February, 1977 will keep with him the crime weapon up to 20th February, 1977 till his arrest instead of destroying the same and creating strong evidence against him. Similarly the prosecution took a considerable time in dispatching crime empties and the weapon to the Forensic Science Laboratory for which no plausible explanation has been offered therefore, the evidence of recovery of incriminating articles cannot be used as a corroborate evidence to believe the statements of ocular witnesses.

20. As far as medical evidence furnished by P.Ws. Dr. Muhammad Sami Tariq and Muhammad Siddique, is concerned it being in nature of confirmatory evidence cannot be considered corroborative evidence. There is no other incriminating evidence on record sufficient to support both the eye‑witnesses Muhammad Faazil and Asghar Ali on material points, therefore, for such reason, it would not be safe to rely on their evidence.

21. After examining the prosecution evidence thoroughly, we are of the considered view that the learned High Court exercised jurisdiction by interfering in acquittal judgment of the trial Court contrary to principles which are highlighted in the judgments of superior Courts from time to time.

22. As far as respondents Altaf Hussain and Noor Hussain are concerned, their acquittal recorded by the learned Additional Sessions Judge as well as the High Court being based on correct appreciation of evidence needs no interference by this Court as the learned counsel for the complainant has failed to point out any breach, violation and non application of any recognized principle of the administration of criminal justice in acquitting both of them, therefore, petition for leave to, appeal against them being devoid of force is dismissed. Thus for the foregoing reasons, Criminal Appeal No.430 of 2001 is allowed, conviction and sentence awarded to the appellant Iftikhar Hussain is set aside. He is ordered to be released forthwith if he is not required in any other case. The appeal to the extent of appellant Khalid Mehmood stands abated on account of his natural death. The above are the reasons for our short order dated 14th April, 2004. N.H.Q./I‑89/S Appeal allowed.