' KHAWAJA MUHAMMAD SHARIF, J.--- Haji Abdul Rehman appellant-complainant has called in question the judgment, dated 28-6-1997 handed down by the learned Additional Sessions Judge, Rawalpindi whereby he has acquitted the private respondents in case F.I.R. No,62, dated 1-7-1993 registered under sections 302/324/148/ 149/109, P.P.C. At Police Station Chountra District Rawalpindi.
2. Succinctly the facts of the prosecution case set up in the F.I.R. (Exh.P.A./1) got lodged by Abdul Rehman complainant (P.W.8) are that on 1-7-1993 at 7-00 a.m. He along with his son Iftikhar Ahmad deceased and Basharat Ali son of Imdad Ali deceased, Khalid Mahmood son of Muhammad Zaman, Nayyer Islam son of Shaukat Ali was present in the house of his nephew Khuda Dad son of Muhammad Hussain when in the meanwhile accused Ghulam Sagheer, Ghulam Hussain, Imran and Yousaf armed with .12 bore guns, Sabir Hussain and Ghulam Shabbir armed with .12 bore pistols, Khadim Hussain armed with Pakki Rifle came on the roof top of the house of Ghulam Hussain respondent and raised Lalkara to teach them a lesson for insulting them and started abusing in retaliation the complainant and others also abused them and came on the roof top of their house due to which Ghulam Hussain etc. Provoked. Khadim Hussain fired a straight shot with his rifle, which hit Basharat Ali deceased on the left side of his chest near armpit. Ghulam Hussain fired another straight shot with .12 bore gun, which hit Basharat Ali on his left arm. Sabir Hussain fired a shot with his pistol, which hit Basharat Ali deceased in his left upper arm. Sagheer Ahmad respondent tired a straight shot with .12 bore gun at Iftikhar Ahmad deceased which hit him near his chest. Khadim Hussain fired a shot with his rifle which hit Iftikhar Ahmad on his left flank.
Imran respondent with his .12 bore gun fired a straight shot at Iftikhar Ahmad deceased which hit him on his left arm. Muhammad Yousaf tired a shot with his .12 bore gun which hit Iftikhar Ahmad deceased on left of his back. Ghulam Shabbir fired a shot with his .12 bore pistol at Khuda Dad, which hit him on his back. Another shot was fired by Ghulam Hussain with his .12 bore gun which hit Khuda Dad on his left upper arm. The 3rd shot was fired by Sagheer Ahmad respondent with his .12 bore gun which, hit Khuda Dad on his buttock. Shabbir Ahmad fired a shot with .12 bore pistol which hit Khuda Dad on his left leg due to which he fell on the ground. Imran respondent fired a shot with his .12 bore gun at Khalid, which hit him on his right leg. Muhammad Yousaf fired a straight shot with .12 bore gun on Nayyer Islam which hit him on his both legs. Ghulam Hussain respondent fired a straight shot with his .12 bore gun at Liaqat Ali which hit him on the Index finger of his left hand who reached after having' seen the occurrence. Tanvir Ahmad respondent provided bullets and cartridges to the respondent after bringing the same from his home. Due to firing Basharat and Iftikhar Ahmad died at the spot due to injuries received at the hands of the accused, while Khuda Dad Khalid Mahmood, Nayyer Islam and Liaqat Ali received grievous injuries at the hands of the accused.
3. The motive behind the occurrence was alleged to be that the respondents were suspecting illicit relation of Zahid Masood with Mst. Naveeda daughter of Ghulam Hussain respondent due to which the respondents were aggrieved and the occurrence had taken place at the instance of Muhammad Sadiq accused who was having key position among the accused. The investigation was conducted by Nazir Ahmad, Inspector (P.W.13) who after completing the usual investigation submitted the report under section 173, Cr.P.C. In the Court.
4. At the commencement of the trial the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C, to the respondents framed the charge against them to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as 13 witnesses while the respondents in their statements recorded under section 342, Cr.P.C. Had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. They also produced two witnesses in this defence.
6. Upon conclusion of the trial, the learned trial Court acquitted the respondents from the charges.
Hence this appeal and thereupon notice was issued to the respondent-accused with the following observations:-- "Appreciation of evidence carried out by the learned trial Court appears to be defective and reappraisal thereof is required."
7. Learned counsel for the appellant in support of this appeal submits that the F.I.R. Was lodged with great promptitude wherein names of the accused/respondents, weapons which they had used in the incident and the roles played by them were duly got mentioned, which eliminated the possibility of any deliberation, consultation and false implications of the accused persons by concocting the false story and it provided corroboration to the ocular account as well; that four injured P.Ws. Had appeared before the learned trial Court who had supported the prosecution version.
8. Thereafter, learned counsel has referred to the motive part of the occurrence that nephew of the complainant namely Masood Ahmad had illicit liaison with the daughter of Ghulam Hussain respondent. Learned counsel further submits that these four injured P.Ws. Are rustic villagers and contradictions on minor points in their statements were not fatal to the prosecution version; that the ocular account is in conformity with the medical evidence, that reasoning given by the learned trial Court for the acquittal of the respondents is fanciful and not supported by the evidence on the record; that the learned Judge only found in the impugned judgment that the P.Ws. Had stated the rifles as guns and guns as rifles which was not a material contradiction. Learned counsel has relied upon 1995 SCM R 1365 (relevant portion at page 1371) and 2002 SCM R 1842 to contend that the impugned judgment of acquittal is liable to be set aside.
9. Learned counsel submits that the reasoning which prevailed with the learned Additional Sessions Judge, was only that at the time of firing why, the deceased and injured P.Ws. Did not enter in the rooms to save themselves from firing. Learned counsel submits that the other reasoning given by the trial Court was that five respondents-accused had been declared innocent by the police, which was not a sufficient ground for acquittal of the respondents as the police opinion is not binding upon the Courts having no evidentiary value. In this regard, he has relied upon 2003 SCM R 68 and 2004 SCM R 283. Learned counsel submits another reason which prevailed with the learned Additional Sessions Judge was that the eye-witnesses had stated the exit wounds as entry wounds and vise versa. In this regard he has relied upon 1986 SCM R 1027. Another reason given by the learned trial Court was that number of accused were involved in this case by making exaggeration therefore, it was not understandable, who had caused the injuries to the injured and the deceased.
Learned counsel has referred to the version of the accused at page 73 of the paper book which is not believable one. Then the learned counsel has referred to the statement of Nayar Islam (P.W.11) at page 96 of the paper book who stated that "it is incorrect that we were injured by the shots fired from the dilapidated house by unknown person". Learned counsel submits that it could not be expected from the P.Ws. To narrate exactly that whose fire had hit to whom and the learned trial Judge committed material illegality while declaring it fatal. Learned counsel submits that the prosecution has proved its case against the respondents and they were wrongly acquitted by the learned trial Court merely on surmises and conjectures. Learned counsel has referred to 1995 SCM R 614.
10. Learned State counsel supports the judgment of the learned trial Court.
11. Learned counsel for the respondents has referred to the statement of Abdul Rehman complainant (P.W.8) who is not injured in this case and stated before the trial Court that he had not seen the injuries on person of the injured P.Ws. And in this regard he has referred page 68 of the paper book wherein it has been mentioned that "I had not seen the locale of the injuries suffered by the deCeased and P.Ws. With my own eyes while firing, volunteered I had only seen the firing by the accused". Learned counsel submits that F.I.R. Was recorded after receipt of the post-mortem reports and the medico-legal reports. Learned counsel submits that nobody can give photographic picture of the roles played by number of the accused and the injuries received by the six victims as stated in the first information report by Abdul Rehman complainant (P.W.8).
Learned counsel submits that Khalid Mehmood (P.W.9) stated before the trial Court that firing was done from dilapidated houses and from the roofs, which could not have been seen from the places where the P.Ws. Were present. Learned counsel submits that only two crime-empties were recovered and those were sent after the arrest of the accused. Learned counsel submits that before the present occurrence and according to the prosecution case firing took place at 6-00 a.m. Between the parties, but in spite of that at the time of occurrence leaving their rooms and courtyard the complainant party went on to their roofs.
12. Learned counsel submits that medical evidence was in contradiction with the ocular account; that Abdul Rehman complainant (P.W.8) stated that fire-arm of rifle hit on the left flank of Iftikhar Ahmad deceased but the injury on his person was of .12 bore gun and the said injury was attributed to Khadim Hussain respondent; that Ghulam Saghir respondent had fired at Iftikhar Ahmad deceased which hit on the left side of the chest of Iftikhar Ahmad was an exit wound; that Muhammad Sadiq son of Allah Dad who had already died was an accused of abetment; that the learned counsel for the complainant-appellant has failed to point out before this Court, if the findings arrived at by the learned trial Court were result of misreading or non-reading of any material evidence on the record resulting into miscarriage of justice; that the previous enmity between the parties also existed; and that initially investigation was conducted by the S.H.O. Then another Police Officer and lastly on the transfer application of the complainant party by one A.S.P.
Who came to the conclusion that 5 accused-respondents were not present at the spot, who were placed in column No,2 but they could not be discharged due to the presence of the complainant party. Learned counsel submits that when majority of the accused have been declared innocent in such circumstances benefit of doubt should be extended to the remaining accused. Reliance is placed on PLD 1982 SC 201. Learned counsel submits that principles in appeal against acquittal are totally different than that of appeal against conviction. He has referred to 2004 SCM R 425, 2004 SCM R 215 and 2004 SCM R 249.
13. We have heard the learned counsel for the parties and also gone through the entire evidence with the assistance of the learned counsel for the parties.
14. The occurrence in the present case was alleged to have taken place on 1-7-1993 at 7-00 a.m.
While the matter was shown to be reported to the police through the complaint lodged by Abdul Rehman complainant (P.W.8) who was not injured P.W. Of this case, at Chowk Jorian at 8-35 a.m.
And the F.I.R. Was recorded at 9-15 a.m. The distance between Police Station Chontra District Rawalpindi and the place of occurrence was 9-00 Kms.
15. There were two deceased persons in this case namely Basharat Ali and Iftikhar Ahmad and four injured persons namely Khalid Mehmood Khuda Dad, Nayyar Islam and Liaqat Ali (P.Ws.9 to 12 respectively). Ghulam Hussain and Sabir Hussain respondents were arrested on 5-7-1993 and two crime-empties were recovered but no empty was recovered from the roof of Ghulam Hussain from where it was alleged that the respondents made firing and from whom it was effected on 13-3-1993 while the recovery was effected from Ghulam Shabbir respondent on 27-7-1993. No recovery was effected from. Ghulam Hussain respondent. The crime-empties had allegedly been taken into possession from the spot on 1-7-1993 while the respondents were arrested on 5-7-1993 and after their arrest on 11-7-1993 the empties were sent to the Office of Forensic Science Laboratory. As such no reliance can be placed on its positive report and, in our view; such recovery cannot be used as corroborative piece of evidence against the respondents. However, from the rest of the accused no recovery was effected.
16. Initially the investigation was conducted by the S.H.O. Then another Police Officer and lastly on the transfer application of the complainant party by one A.S.P. Who came to the conclusion that 5 accused-respondents were not present at the spot and they were placed in Column No,2, but they could not be discharged. We must keep in mind that we are hearing appeal against acquittal and not appeal against conviction and the criteria in appeal against acquittal is entirely different from appeal against conviction.
17. We have also gone through the different reasonings given by the learned trial Court, which had met with each and every point of the prosecution with great care and caution. We have also perused the statements of all the injured P.Ws., which are full of confrontations and in our view dishonest improvements were made by the prosecution witnesses. It may be noted here that prior to the occurrence a fight had taken place at 6-00 a.m. Between the parties but no report was lodged and the accused persons according to the complainant party were present on the roof top of Ghulam Hussain respondent while they were sitting in the courtyard, but why they did not save themselves in the room when they had prior knowledge that the accused party had fire-arms with them which shows unnatural conduct on their part. There was an accused of abetment namely Sadiq. He was acquitted by the trial Court and he has already died. It is also important to note here that according to the prosecution case firing was made from the roof of Ghulam Hussain respondent but not a single crime-empty had recovered from his roof, which negated the prosecution version that 7/8 persons had made firing indiscriminately therefrom.
17-A. We have also gone through the site plan Exh.P.J. And Exh.P.J./1 according to which Khadim Hussain respondent had been shown on the roof of Ghulam Hussain respondent, but there was no mention of any crime-empty in column No,3 of the inquest report. Moreover, all the respondents- accused were closely related with each other as Khadim Hussain and Tanvir Hussain respondents are sons of Muhammad Siddique, Ghulam Hussain and Sabir Hussain are sons of Allah Dad, Ghulam Shabbir and Imran Hussain are sons of Ghulam Hussain and they were named in the F.I.R.
Along with their father Ghulam Hussain. It appears that all the near relatives had been roped in this case while exaggerating the prosecution story and attributing different injuries to each of them.
The ocular account was also found in contradiction with the medical evidence and the exit wounds had been changed into entry wounds. The fire-arm weapons allegedly in possession of the accused were also differently stated by the P.Ws. At the trial which were changed from rifles to guns by the complainant party. These were dishonest improvements on the material points in the statements of the P.Ws. In order to make their version in line with the medical evidence. So after having heard the learned counsel for the parties and going through the evidence on record we do not find any perversity in the findings arrived at by the learned trial Court in recording acquittal of the respondents accused. The learned counsel for the appellants has also failed to point out any misreading or non-reading of the material evidence on the record by the learned trial Court resulting into any miscarriage of justice. It is well-settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case.
Reliance is placed on Inayatullah Butt v. Muhammad Javed and others PLD 2003 SC 562. There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained.
18. As a result of the above discussion this appeal is devoid of any merit, which is dismissed.