' MIAN SHAKIRULLAH JAN, J.--- The order of acquittal of the respondent passed by the High Court in a murder case was challenged by the complainant party through a petition for leave to appeal, whereby leave was granted in order to examine the aforesaid order of acquittal in view of the evidence available on record including that of the injured persons.
2. The background of the case as given in the judgment of the trial Court, which is as under:-- "The case for prosecution as per F.I.R. Exh.P.D. Registered at the instance of Fida Hussain brother of deceased Muhammad Iqbal, who also himself expired later on and his signature and handwriting have been proved on F.I.R. Exh.P.D. By his son Imiaz Hussain P.W.11, and unfolded at the time of trial, is that Manzoor Hussain P.W.6, Manzar Hussain P.W.7, Muhammad Iqbal deceased Saghir Ahmad and Shakir Hussain (P.Ws. Given up) went on 27-6-1996 from village Turkwal to village Dhanda on a tractor trolley to collect a "Kicker" tree which Manzoor Hussain. P.W.6 had purchased a day before.
Muhammad Iqbal, Manzar Hussain P.W.7 and Shakir Hussain P.W. Given up, were associated with him by Manzoor Hussain P.W.6 as labourer. At about 7-30 p.m. When they returned from village Dhanda to go to village Turkwal after loading the wood on tractor trolley and they passed the tractor trolley from the land of Jahandad accused, Jahandad, Sadiq and Muhammad Ashraf accused persons sons of Ghulam Nabi along with two others whose names and addresses were not known, residents of Dhoke Gangal Dakhli Dhanda, were present in the land Jahandad accused made the tractor trolley to stop and started abusing that why they had passed the tractor trolley from his peanuts crops. Manzoor Hussain etc. Beseeched them but Jahandad etc. Were in immense anger. They got alighted Manzoor Hussain, Manzar Hussain, Shakir Hussain and Muhammad Iqbal from tractor trolley. Jahandad and Muhammad Ashraf dealt Soti blows on Muhammad Iqbal deceased on his left buttock, left knee and left arm. Muhammad Iqbal deceased fell down. Jahandad and two other unidentified persons inflicted blows on the chest of Muhammad Iqbal deceased who went unconscious Muhammad Sadiq accused dealt two Soti blows on right knee and left shoulder of Manzoor Hussain P.W.6 whereas Muhammad Ashraf accused dealt on the right wrist and right elbow the stick blows. The P.Ws. Beseeched the accused persons to let them take Muhammad Iqbal for treatment but they threatened them and they ran away and came to their village Turkwal where they assembled a Jirga of P.W.8 Altaf, P.W.9 Muhammad Khan, P.W.10 Noor Hussain and others. P.W.8 to P.W.10 and other P.Ws. Given up after consulting one another went to the village Dhanda to the accused persons and they were successful to convince the accused person to hand over Muhammad Iqbal to them who was unconscious, for medical treatment and brought into village Turkwal where they handed him over to, Manzoor Hussain P.W.6 and Altaf P.W.8 who took him to Civil Hospital, Rawalpindi where Muhammad Iqbal was medically examined, however, later on he was succumbed to injuries."
3. All the five accused, including the three brothers, were tried by Additional Sessions Judge, Rawalpindi for offence under sections 148, 302, 337 and 149, P.P.C., out of whom the two accused Abdul Majeed alias Abdul and Ansar Khan were acquitted while the other two accused Muhammad Sadiq and Muhammad Ashraf were found guilty under section 337, P.P.C. And each of them was sentenced to one year's R.I. And a Daman of Rs,5,000 while Jahandad accused was found guilty under section 302, P.P.C. For the murder of the deceased Muhammad Iqbal and was sentenced to death with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. All the three convicts filed an appeal before the High Court against their convictions and sentences. The appeal filed by Muhammad Ashraf and Muhammad Sadiq was not pressed on the ground that they had already undergone the sentence while the appeal filed by Jahandad was accepted and he was acquitted and against that order the instant appeal, by leave of the Court, has been filed.
4. The learned counsel for the appellant has contended that there is overwhelming evidence against Jahandad respondent, consisting of the statements of the two injured P.Ws. i,e, Manzoor Hussain and Manzar Hussain, in addition to the other circumstantial evidence and the acquittal of the respondent Jahandad was unjustified and he is liable to the punishment already awarded to him by the trial Court and which sentence needs restoration.
5. On the other hand, the learned counsel for the respondent while highlighting various lacunae and discrepancies contended that the impugned judgment of the High Court while acquitting the accused respondent is unexceptionable and is based on sound reasons and the judgment cannot be termed as perverse, fanciful or artificial to justify interference.
6. Fida Hussain, the lodger of the F.I.R., was not an eye-witness of the occurrence and he was informed later on when the deceased, then injured, was taken to the hospital and where in the hospital the entire episode was disclosed to him by Manzoor Hussain. He also did not appear in the Court as a witness as he had already expired. The name of Shakir Hussain finds its mention in the F.I.R. But he had not been produced as a witness in the Court. It is only the two witnesses Manzoor Hussain and Manzar Hussain, witnesses of the occurrence, who have statedly sustained injures during the occurrence and who appeared in the Court as P.W.6 and P.W.7. The two witnesses sustained injuries at the hands, of Muhammad Sadiq and Muhammad Ashraf by giving them Soti blows. Jahandad and two unknown persons were charged for giving stick blows to the deceased Muhammad Iqbal at left buttock, left knee and left arm and they were also charged for giving kicks and fist blows on the chest of deceased.
7. According to the medical evidence, the deceased had:--
(1) Two lacerated skin deep 2 x 1 c.m. And 1 x 1.5 c.m. On dorsal aspect of left foot.
(2) Abrasion 1 x 1 c.m. On left knee.
(3) Abrasion 2 x 2.5 c.m. On left outer aspect of left hip joint."
' There is no mention of any external injury on the chest or trunk of the body, however, on dissection (internal examination) it was found that:-- "Ribs 2nd to 8th on right side and 2nd and 3rd on left side were fractured. Pleaura and both lungs were ruptured. Rest of organs were healthy. Right side of heart contain little blood."
' In the cross-examination it was stated by him (the Medical Officer) that:-- "It is correct that there was no external injury on the person of the deceased Muhammad Iqbal on lungs; volunteers on opening thorax there was a fracture of a rib. The injury of thorax could be result of accident in more probability. It could be the result of the hitting of some heavy machinery but not with bicycle etc."
' According to Dr. Muhammad Ashraf, M.O.D., P.W.12, he has examined Muhammad Iqbal, deceased, then injured, on 28-6-1996 at 6-20 a.m. Brought by Manzoor Hussain. According to this witness he had not seen any visual injury on Manzoor Hussain P.W.6. The respondent has also been examined under section 342, Cr.P.C. And to a question as to why he has been charged and what is his statement; he stated that:-- "I have been falsely implicated. The P.Ws. Are related inter se. In fact the deceased Muhammad Iqbal fell down from the tractor trolley and received injuries in result whereof I brought a cot from my Dhoke and placed him on the same and directed his companions to arrange for his transportation to the hospital. On arrival of his relatives, the deceased was removed to the hospital on the same cot. No injury was caused on the person of deceased by me or the co-accused. The co-accused were not present at the spot and they reached after half an hour of the incident. The P.Ws. Manzoor Hussain and Manzar Hussain were not injured at the spot. Their injuries were manoeuvred later on in order to make them eye-witnesses. The deceased was proceeding on a tractor trolley to collect the timber wood when he passed from the land of my brother Muhammad Yasin, I stopped him and told him to go back. They requested to allow them and promised not to return from this route. I was in my house located in the Dhoke and saw that the tractor trolley is en route to the peanut crop land. I with a raised voice asked them as to why they are passing the tractor trolley from the land on which they sped up the tractor trolley and the deceased fell down due to over speeding and received injuries as such. I and my co-accused had no motive to cause the death of deceased Muhammad Iqbal who was a "Kammi" of the village. I and my co-accused had no enmity with him. There was no reason to cause injuries on his person."
8. The F.I.R. Had been lodged with sufficient delay as the occurrence has taken place on 27-6-1996 at 7-30 p.m. While the report was lodged on the next day i,e, 28-6-1996 at 4-30 p.m., almost with a delay of 21 hours despite the fact that all the injured persons including the deceased have reached the hospital after a few hours of the occurrence. The learned trial Court while acquitting the other two co-accused has also observed that their involvement may be the result of consultation and deliberation in view of their late implication in the case. If we look at the entire evidence and also the cumulative effect of all the circumstances i,e,, the delay in lodging F.I.R., the presence of Manzoor Hussain P.W.6 .In the hospital who without disclosure of his injuries to Dr. Muhammad Ashraf at the time when he had taken Muhammad Iqbal deceased to the hospital, then in injured condition, the absence of any external injury on the chest or trunk of the body of the deceased and the story given by the accused respondent of the episode explaining to certain extent injuries sustained by the deceased by falling from the tractor trolley, coupled with the statement of the Medical Officer in cross-examination about the cause of injury i,e,, "the injury of thorax could be result of accident in more probability. It could be the result of the hitting of some heavy machinery but not with bicycle etc." the possibility of consultation and deliberation on the part of complainant party qua the involvement of the accused respondent cannot be excluded and on which ground the other two co-accused had already been acquitted by the trial Court i,e,, the deliberations, consultations and benefit of doubt, and against whom no appeal has been filed either by the complainant party or by the State. The judgment of the High Court while acquitting the accused respondent cannot be said to be perverse and the reasons thereof are not fanciful, capricious, speculative and artificial and in the absence of holding the order of acquittal as such, it cannot be interfered with as held in the cases of Ghulam Sikandar and another v. Maamaraz Khan and others PLD 1985 SC 11, Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCM R 1209 and Abdullah v. The State and others 2006 SCM R 1466.
9. As a result of the above discussion, we see no force in this appeal. The same is dismissed.