1994 P Cr (PLP)

Muhammad Arif, complainant of case F.I.R. No. 217/87, dated 14-7-1987 registered at Police Station Nowshera Virkan under section 302/307/34/109, P.P.C. has filed this petition under section 435/439, P.P.C. against the judgment, dated 25-4-1992 passed by the learned Additional Sessions Judge, Gujranwala whereby he acquitted Abdul Ghafoor, Manzoor Ahmad, Akhtar Ali, Muhammad Naw4 Noor Muhammad, Maqbool Ahmad and Younis-respondent from the charge of having caused the death of Asghar Ali and for causing injuries to Mst. Zaitoon Bibi and Mast. Sakifia Bibi P.Ws. in the area of Dera Rehama on 14-7-1987.

2. The case of the prosecution as gleaned from the F.I.R. (Exh.P.D.) as was lodged at 12-15 p.m. on 14-7-1987 at Police Station Nowshera Virkan at the instance of Muhammad Arif (P.W.6) is, that about 4-1/2 years before he was coming from Dera Aasian alongwith his son Asghar Ali deceased. It was 8-00 a.m. when they reached near Dera Rehama, and saw that Manzoor, Nawaz, Akhtar and Abdul Ghafoor-accused/respondents present there. Manzoor had .12 bore gun whereas the remaining three had 7 mm rifles. Nawaz and Manzoor raised Lalkaras that supporters of Sher Muhammad should be done to death today, whereupon Ghafoor accused fired with his rifle hitting the deceased on his left upper arm. Thereafter, Akhtar fired a shot hitting the left flank of Asghar deceased, as a result of which he fell down on the ground and died at the spot. The accused-respondents, while firing went towards the Saim Naula and while standing on the said Saim Naula fired, hitting Mst. Sakina Bibi and Mst. Zaitoon Bibi P.Ws., who were present in their house at Dera Lal Din towards the south. The occurrence had been stated to be witnessed by Mohabat and Ashiq, P.Ws, besides the complainant. The aforementioned accused attacked the deceased at the instigation of Maqbool, Noor and Younis accused.

3. The motive stated, for the commission of present crime is; that Nawaz, Lal Din, Noor and Sher Muhammad are real brothers, who had some dispute inter se regarding their property. The arbitrators were appointed to resolve their dispute. The arbitrators decided whosoever would not accept the decision of the arbitration would pay Rs.50,000 as penalty. One Ashiq, Lambardar, stood surety for the payment of penalty. Nawaz, Noor and Lal Din did not accept the decision of the arbitration and Sher Muhammad received an amount of Rs.50,000 as penalty, from Ashiq, Lambardar. The complainant party was supporting Sher Muhammad, the accused nourished grudge against them and they, therefore, intentionally committed the murder of Asghar Ali deceased.

4. The prosecution, in all, examined sixteen P.Ws. including Muhammad Arif, complainant (P.W.6), Muhammad Ashiq (P.W.7), and Mst. Zaitoon Bibi (P.W.8) as the eye-witnesses and the Witnesses of motive. Muhammad (P.W.5) was examined regarding abetment and Nazir Ahmad (P.W.4) and Liaquat Ali (P.W.11) gave evidence regarding recovery of .12 bore gun P.3 and 7 mm rifle P.4 from Manzoor and Nawaz-accused/respondents. Dr.-Muhammad Ramzan Pervaiz (P.W.9) did the post-mortem examination and Dr. Ghulam Sarwar did the medical examination of Mst. Zaitoon and Mst. Sakina Bibi P.Ws. Rana Bashir Ahmad, D.S.P., Sialkot (P.W.15) and Ghulam Abbas (P.W.12) are the Investigating Officers of this case, who challaned the accused.

5. At the close of the trial, the accused during their examination under section 342, 'Cr.P.C. traversed the prosecution allegation in its entirety and while professing their innocence took up the plea of total denial of their participation in the occurrence and pleaded being involved due to enmity. They produced no defence evidence.

6. The learned counsel for the petitioner contended that the learned trial Court fell into error by acquitting the accused/respondents when there was ample evidence to prove the guilt against them. Moreso, when all the ingredients of the offence stood fully proved by the prosecution. It was argued that the prosecution examined 16 witnesses in all including Mst. Zaitoon Bibi and Mst. Sakina Bibi and the learned trial Court failed to give any credence to their unimpeachable testimony, when the ocular testimony is supported by the medical evidence, the evidence of recovery of weapon of offence at the hands of the accused-respondents and also the evidence of motive.

7. Conversely, the learned counsel appearing on behalf of the respondents contended that the eye-witnesses are not truthful being inimical, closely related to the deceased, interested and partisan nature. It was further argued that the alleged occurrence took place in the fields outside the village in the broad daylight, yet not a single independent and natural witness has been produced by the prosecution. It was added that the eye-witness account of the occurrence rendered by the prosecution witnesses suffers from serious discrepancies and inherent infirmities and the recovery of incriminating articles are also doubtful and the possibility that the deceased was done to death unseen by P.Ws. and accused persons were implicated on account of enmity cannot be ruled out. Regarding the statements of injured P.Ws. it was argued that those are recorded after 15 months of the occurrence so that would not be of any avail to the prosecution.

8. The grounds which prevailed with the learned trial Court in ordering the acquittal of the accused are enumerated below:-- So far as the ocular account is concerned, that has been furnished by Muhammad Arif, complainant (P.W.6), Muhammad Ashiq (P.W.7) and Mst. Zaitoon Bibi (P.W.8). These P.Ws. being close relatives of the deceased, it was found by the learned trial Court that they will not be possibly lose any chance to incriminate the accused persons. Regarding third witness namely Mst. Zaitoon Bibi, it was reasoned that she was not the witness of the occurrence. It was also found that admittedly the eye-witnesses had neither any land nor cultivation near the place of occurrence and they are the chance witnesses. The occurrence in this case took place at 8-00 a.m. and there were 5/6 labourers were working near the place of occurrence for rice plantation but neither of them has been produced by the prosecution so the veracity and impartiality of the P.Ws., by all standard, were not found above board, so their presence at the scene of occurrence was found as open to grave doubt and suspicion. It was also found that the ocular account furnished by the eye witnesses was not supported by the medical evidence, seat of injuries and the weapons employed for causing the injuries. The prosecution version is that the accused fired at the deceased from the distance of 108 Karams which means about 600 feet; while according to the post-mortem report, there were blackening and burning around the injuries on the person of the deceased which means that he was fired at from a very close range of about 5/6 feet.

9. So many other ground were advanced to discard the evidence of the prosecution while saying that the medical evidence has totally belied the ocular version of the present occurrence. To support the ground that the medical evidence was not inconformity with the ocular account, it has been reasoned that neither any bullet was found lodged inside the body and nor any crime empties were located from the spot, despite the fact that Muhammad Arif (P.W.6) has stated that there were 5/6 crime empties at the scene of occurrence which were trampled by the people.

10. On the point of motive, it was found that committing the murder of Asghar Ali, deceased, by the respondents to prove was too remote, far-fetched, flimzy and trivial for the reason that Asghar Ali deceased was certainly not the source of trouble for the accused. It was also found that the prosecution version regarding motive was concocted, baseless and afterthought. There appears no logic and reason in the version of the complainant party that the accused committed the murder of Asghar Ali, deceased, because his father and other relatives were supporting Sher Muhammad brother of Nawaz, Noor and Lai Din. The evidence of murder conspiracy was also not believed after having found the same as fabricated and highly improbable for the reasons that it did not convince the rational mind that the accused were conspiring for the murder and the persons passing through the street could hear this talk easily and also that if the witness had heard the murder conspiracy then he could have easily saved the life of the deceased after informing to the police or the other persons. This witness namely Muhammad (P.W.5) even appeared before the police after 5/6 days of the murder at the police station. Similarly the recoveries were also disbelieved, the recovery witnesses being closely related to the deceased and then being animous to falsely implicate the accused persons. These recoveries were also found inconsequential for the reason that no crime empties were recovered from the scene of occurrence.

11. On the touchstone of the guiding principles as laid down by the Supreme Court of Pakistan in the judgments reported as Muhammad Asghar and another v. The State P L D 1994 SC 301, Yar Muhammad v. The State 1992 S C M R 96 and Ghulam Sikandar v. Mamaraz Khan P L D 1985 SC 11, the order of acquittal in the instant case was apparently neither the result of misreading or non-reading of evidence and nor it could be termed as so "perverse" as to occasion miscarriage of justice. The learned trial Court has advanced so may cogent reasons which influenced it to conclude that the evidence produced was not sufficient for the conviction of the accused for the safe of criminal justice.

12. The learned trial Court advanced valid reasons for disbelieving the evidence of motive which according to it remains shrouded in mystery, the eye witnesses account, the evidence of conspiracy the medical evidence and that of recoveries.

13. Even otherwise, it has been a consistent view of this Court and that of the Supreme Court of Pakistan that there is a' double presumption of innocence in favour of an accused person, who has secured acquittal; one, that every accused shall be presumed to be innocent unless proved to be guilty and the other that a competent Court of law has adjudged him not guilty. The interference under section 439, Cr.P.C. can only be made if the order of the Court below is manifestly wrong or perverse or is based on the view of the evidence which no judicial officer would take, or the Court has misread the evidence or that non-interference will result in miscarriage of justice. The mere fact that the. appellate or revisional Court form a different opinion on the appraisal of evidence than that arrived at by the trial Court will not justify, setting aside the order of acquittal.

14. Resultantly, I do not find any good ground to accept this revision petition so the same is dismissed. N.H.Q./M-1612/L Revision petition dismissed.