1991 PLP 2477 (MLD)

Ch. Ghulam Murtaza Khan for Petitioner. Naeemul Hassan Shirazi for the State. Malik Pervaiz for Respondent No.1 Date of hearing 10th June, 1991 The facts giving rise to this revision against acquittal briefly are that Sohail alias Dittu respondent was tried under section 307/452, P.P.C. on the charges that he after having made preparation to cause hurt criminally trespassed into the house of Muhammad Naseer complainant and caused injuries to Muhammad Naseer complainant, his sister Mst. Abida aged 18 and his brother Majeed aged 14 by throwing acid on them on the night between 5/6-8-1987. He denied the charge and claimed to be tried.

2. To prove its case, prosecution produced 6 witnesses Muhammad Naseer complainant appeared as P.W.2. He stated that at the eventful time, he, his sister Mst.Abida, his mother Mst. Hameeda and his brother Majeed and others were sleeping in their house. Sohail respondent entered into their house and threw acid on them causing injuries to him, his sister Mst. Abida and his brother Majeed. They identified the accused at the time of occurrence, who after throwing acid on them ran away leaving the bottle of acid on the place of occurrence.

3. The motive allegedly was that one year before the occurrence, sister-in-law of Kamal Din, real uncle of the complainant was abducted and a case of her abduction was registered against Muhammad Bashir, Muhammad Nazir and Khurshid Ahmad, who after investigation were challaned and the case was pending in the Court of learned Additional Sessions Judge. Muhammad Naseer was supporting his uncle Kamal Din. Sohail respondent/accused asked for compromise in the abduction case but the complainant refused on which the respondent/accused threatened him with dire consequences. Muhammad Naseer complainant has supported the alleged motive.

4. Dr. Muhammad Shafiq P.W.1 medically examined the injured P.Ws. on 6-8-1987. He found six injuries on the person of Mst. Abida and 3 injuries on the person of Muhammad Naseer. He has proved the medico-legal reports Ex. PA & PB. Muhammad Yaqoob A.S.I. P.W.6 had investigated the case and lifted the bottle allegedly left by the respondent/accused on the spot. Mazhar Hussain was the recovery witness.

5. When examined under section 342, Cr.P.C., the respondents denied all the incriminating circumstances. He raised the plea of false implication. In defence he produced 2 witnesses, who stated. (sic)

6. Believing the prosecution case and disbelieving the defence evidence, the trial Court convicted Muhammad Sohail respondent under section 307, P.P.C. and sentenced him to 3 years' R.I. and a fine of Rs.5,000 in default thereof 6 months' S.I. On appeal, the learned Additional Sessions Judge, Sialkot acquitted Sohail respondent/accused on 4-10-1989, hence this revision against acquittal.

7. Learned counsel for the petitioner contended that the acquittal of the respondent has caused miscarriage of justice; that the appellate Court has failed to appreciate the evidence in accordance with the guidelines given by the Superior Courts; that the Appellate Court has set aside the well-reasoned judgment of conviction passed by the trial Court on surmises, conjectures and flimsy grounds not supported by material on record. Supporting the judgment of acquittal, the learned counsel for the respondent contended that it is not a .fit case for interference with the judgment of acquittal; that it was a night occurrence; that the identity of the culprit was doubtful; that no independent witness was produced by the prosecution; that there was a delay in lodging the F.I.R.; that the prosecution case is that the occurrence took place at 1-00 a.m. on 6-8-1987 whereas the medico-legal report of Mst. Abida shows that she was examined by the doctor, on 12-15 a.m. (night); that the prosecution has failed to prove motive; that recovery witnesses have not supported the incriminating recovery and that no injustice has been carried.

8. I have considered the submissions made by the learned counsel for the parties carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that the occurrence took place in the house of the complainant and injured witness at about mid-night. So they were natural witness of the occurrence. By the fact of injuries on their person, their presence at time of occurrence on the spot is very much established. The appellant was previously known to them and as such there could be no difficulty in his identification. Three persons received injuries with acid and only single accused has been involved by the eye-witnesses. No foundation for the substitution of the respondent in place of the real culprit has been laid down. The number of the injuries and the number of the culprit commensurates. In these circumstances I feel that the trial Court should have appreciated the evidence in accordance with the guidelines given by the Supreme Court in case Muhammad Hussain v. The State reported as PLD 1960 SC

387. Instead of appreciating the ocular evidence in the light of the guiding principle laid down by the Superior Courts. The learned Additional Sessions Judge has acquittal the respondent on surmises, conjectures, and on grounds which are foreign to evidence on record and to circumstances appearing in the case. He was of the view that there was an inordinate delay in lodging the F.I.R., inasmuch as, the occurrence took place at 1-00 a.m. and the report was lodged at about 3-05 a.m. This observation is contrary to record which shows that the F.I.R. was actually lodged at 3-05 a.m. before the sunrise and not afternoon. One of the reasons for disbelieving the prosecution evidence was that no independent witness was produced by the prosecution. I am afraid this observation is also wrong, inasmuch as, mere relationship of the witnesses inter se will not make them interested witnesses. They had no motive to involve the respondent falsely in the case or to substitute him in place of the real culprit. Three persons were injured during the occurrence but they have involved only one person, i.e. the respondent, although they could name more than one person as offenders. The straightaway manner in which the eye-witnesses have made statements had not been attended to by the Appellate Court. One of the reasons for disbelieving the prosecution case was that Mst. Abida was medically examined at 12-15 a.m. (night), whereas the occurrence allegedly took place at 1-00 a.m. (night). I am afraid the time of occurrence given in the F.I.R. is always approximate and therefore it could be hardly a reason to doubt the veracity of the eye-witnesses. In the instant case, three persons allegedly received injuries caused by acids. Out of them two injured persons namely Naseer and Mst. Abida have been produced by the prosecution, therefore, the fact that the third injured person namely Majeed was not medically examined by the doctor will not take the case of the accused/respondent any further. It was a very serious case in which two persons including a young girl Mst. Abida, aged 18 years was made victim of the assault and acid was thrown on her body, so the acquittal of the respondent based on flimsy, far-fetched and grounds not supported by the evidence and circumstances appearing in the case, has really caused gross miscarriage of justice. Pursuant to the above discussion, there being no satisfactory basis to uphold the judgment of the acquittal of the respondent, the same is set aside and the case is sent back to the trial Court for retrial of the respondent. At the time of his acquittal by the learned Additional Sessions Judge, Sohail respondent was on bail. So, he will remain on bail till the conclusion of the trial. The trial Court will decide the case within six months from today under intimation to the Deputy Registrar (J) of this Court. M.B.A./M-3136/L Retrial ordered.