' AFFAB FARRUKH, J.-Barkat Ali, Niamat Ali, Akbar Ali, Rehmat Ali and Zubair were tried in the Court of Mian Abdur Rehman, Additional Sessions Judge, Lahore for the murder of Muhammad Arif, and acquitted by the learned trial Court by its judgment dated the 2nd August, 1976. The State has challenged the acquittal by this appeal, and the same is disposed of by this judgment.
2. The occurrence took place on the 16th May, 1973 at about 3 a.m. At B.R.B. Canal bank within the area of Attokay-Awan. Akbar Ali (P. W. 1), son of Faqir Muhammad made statement Exh. P A at 3-30 a.m. The same morning to P. W. 17 Muhammad Ashraf, A.S.I. Police Station Manawan, who met him near Jallo Mor, being on patrol duty. Exh. P A was sent to Police Station, Manawan through Haji Ahmad for the registration of the case and P. W. 3 Haji Ahmad has proved the formal F.I.R. Exh. PA/1 as being in the handwriting of Muhammad Anwar, Moharrir, Police Station, Manawan. The place of occurrence is at a distance of 3 miles from the Police Station.
3. The case for the prosecution briefly stated is that on the night preceding the occurrence Akbar Ali P. W. 1 accompanied by Muhammad Yaqub (given up P. W.) came to the house of his brother- in-law Rehmat Ali for borrowing bullocks for sowing the charri crop. The same were refused by Rehmat Ali, and therefore, they slept at night in the house of Rehmat Ali. At about 2-30 a.m. P. W. 1 Akbar Ali accompanied by Muhammad Yaqub (given up P.W.) left on foot for their village Dogaich, At about 2-50 a.m. On reaching the B.R.B. Bridge the two of them stopped. Arif deceased accompanied by his brother Ghulam Rasul came to the bridge on bicycles. Akbar Ali P. W. I and Arif deceased got on one bicycle while Ghulam Rasul and Muhammad Yaqub rided the other and they set off for their village. Travelling by canal bank when they reached near chah Niwanwala, in the area of village Attokay-Awan, Barkat Ali, Niamat Ali, Akbar Ali, Rehmat All and Zubair accused/respondents appeared on the scene. Barkat Ali accused was armed with a datar, Rehmat All accused was armed with takwa while the others were armed with sticks.
' Barkat Ali respondent raised a lalkara that they would teach a lesson to Arif deceased for breaking his leg. Barkat Ali accused/respondent gave a datar blow on the person of Arif deceased which hit him on the nose. Arif deceased fell on the ground and so did Akbar Ali P. W.
1. Rehmat Ali accused gave a takwa blow on the head of Arif deceased, and then all the accused/respondents started belaboring Arif deceased with their respective weapons. Besides P.
W. I Akbar Ali, Ghulam Rasul P. W. 15 and Muhammad Yaqub (given up P. W.) witnessed the occurrence.
3. The motive behind this incident is that on account of the purchase of a piece of land by Barkat Ali respondent differences arose between the two parties and as a consequence Ghulam Rasool P. W.
15, Arif deceased and Sabir were prosecuted under section 325, P.P.C. For allegedly breaking the legs of Barkat All accused/respondent (F.I.R. Exh. P.0).
' Ghulam Rasul (P. W. 15) is the cousin of the deceased while Muhammad Yaqub (given up P. W.) was the other brother.
4. On the 18th May, 1973 Barkat Ali accused (in custody) led to the recovery of blood-stained datar Exh. P. 16, which was taken into possession vide memo. Exh. PS, attested by Faqir Ali and Jeer Din, besides Latif Hussain Shah, Sub-Inspector (P. W. 16).
' On the 16th May, 1973 Rehmat All accused (in custody) led to the recovery of blood-stained shirt Exh. P. 12, which was taken into possession vide memo. Exh. P N, attested by Said Muhammad and Muhammad Shafi besides Latif Hussain Shah, Sub-Inspector (P. W. 16).
' On the 18th of May, 1973 Rehmat All accused also led to the recovery of blood-stained takwa Exh. P.
17, which was taken into possession vide memo. Exh. P T, attested by Faqir All and Jeer Din as well as Latif Hussain Shah, S. I. (P. W. 16).
' Vide Serologist report Exh. P Y the abovesaid articles were found to be stained with human blood.
' On the 22nd May, 1973, Akbar All accused led to the recovery of stick P. 13, Niamat Ali led to the recovery of stick P. 14 and Zubair accused led to the recovery of stick P. 15, which were taken into possession vide memos. Exhs. PO, PQ and PR respectively which are attested by Said Muhammad and Muhammad Shafi besides Latif Hussain Shah, S.
1. (P. W. 16), but these recoveries do not advance the case of the prosecution, as these articles are not stained with human blood.
5. On 17th May 1973, Dr. Sabir Ali performed the autopsy on the dead body of Arif deceased and found more than 33 injuries on his person, mostly comprising incised wounds besides contused wounds. He also examined Rehmat Ali accused/respondent on the same day at 1-30 p.m. And found an incised wound 1 i" x 3" muscle deep on the back of the left elbow joint and a contused wound 1"x I" scalp deep on the left side of the head, and we would point out at this stage that until the trial stage these injuries were neither owned nor explained by the prosecution, and that the case of Rehmat Ali accused is that subsequent to his apprehension he was given a beating.
6. Learned counsel for the appellant has vehemently argued-
(a) that the first information report was lodged promptly and all the accused are specifically named therein ;
(b) that Akbar All P. W. 1 is independent and has no motive to falsely implicate the accused/respondents ;
(c) that Ghulam Rasul P. W. 15 though a cousin of the deceased, yet is a natural and truthful witness ; and
(d) that the ocular testimony is corroborated by the medical evidence as well as the recoveries.
' We have heard the learned counsel for the parties, and they have taken us through the record.
This is admittedly a night time occurrence in which Arif deceased has received innumerable injuries. The number and nature of injuries tend us to believe that the assailants were more than one in number and armed with sharp-edged as well as blunt weapons and they accomplished the murder of Arif at complete ease and liberty without any fear of being noticed or intervention and, therefore, they escaped unidentified. According to prosecution the number of accused works out to be five as against four persons on the complainant side i.e. Arif deceased, Akbar Ali P.W. 1, Ghulam Rasul P.W. 15 and Muhammad Yaqub (given up P.W.) The accused were not alleged to be armed with any formidable weapons which would have deterred the closely related witnesses from intervention, (though Akbar Ali P.W. I has denied his relationship but the same is admitted and established from the evidence of his real-brother Muhammad Anwar P. W. 10). The witnesses, if present, would necessarily have intervened and received some injuries in the process and same would have established their presence beyond shadows of doubt, and if the witnesses were in fact present, they would certainly have raised alarm which would have attracted the Rangers at nakabandi picket from the close-by bridge, police or people from the nearby tube-wells, before the assailants could inflict as many as 33 injuries on the deceased as noticed by the doctor, but counting the multiple injuries noted as one we would say a very large number of injuries. Ghulam Rasul P. W. 15 had stated before the Committing Magistrate that he and his companion were checked by the Police at Jallo Mor Bridge during the nakabandi and he was duly confronted with this admission. A perusal of Exh. DG indicates that besides Arif deceased, Ghulam Rasul and Muhammad Sabir were accused in the 325, P. P. C. Case registered in respect of the fracture of the leg of Barkat Ali accused/respondent (the incident which is stated to be motive for this attack).
Ghulam Rasul is the first cousin of Arif deceased and if the motive as alleged was true, the accused party had the same grievance against Ghulam Rasul P. W. As well as Arif deceased and there is no reason why Ghulam Rasul should have been spared. Ghulam Rasul has not received even a scratch. Ghulam Rasul P. W. 15 has indulged in exaggerations and omissions. He has stated that each of the accused inflicted 15 blows individually. This is clearly in contradiction with the medical evidence.
' We are also not convinced of the reasons of presence of Akbar Ali, P. W.
1. From the cross-examination it is clear that he has suppressed material facts, tending to favour the defence and in this regard we would refer in particular to his denying his relationship with the deceased, which is admitted by Muhammad Anwar (P. W. 10), his real brother. Akbar Ali P. W. 1 had to sow only one killa of charri crop and this is admitted by him that he owned his own bullocks.
Similarly, admittedly Muhammad Yaqub (given up P. W.) owned bullocks, therefore, the question of his going to village Attokay-Awan to his brother-in-law Rehmat Ali son of Chanan Din for borrowing his bullocks for sowing one !Cilia of charri crop, does not arise and when Rehmat Ali son of Chanan Din refused to lend his bullocks in normal course of events Akbar and Yagoob would have returned to their village before it got too late, and once they had decided to stay at night, it is impossible to believe that Akbar Ali P. W. 1 and Muhammad Yaqoob (given up P. W.) would have left on foot at the dead of night i.e. At 2-30 a.m. For their village i.e. Dogaich, which is situate at a distance of 3-4 miles, and we see no reason why they should have stopped and waited at Attokay-Awan bridge of B.R.B. Instead of proceeding further on their way. If they were to take lift from Ghulam Rasul and Arif deceased they would have better waited for the two outside Bata Shoe Factory. We have nothing on record to support the tall claim that Ghulam Rasul (P. W. 15) was in the same shift on the night of occurrence or that in fact he attended to his duties in the night shift in Bata Shoe Factory. Akbar Ali P. W. 1 is capable of suppressing facts and telling lies. He admittedly lived in a separate room within the same courtyard where Ghulam Rasul P. W. 15 and the deceased lived, and yet he showed ignorance as to since when Ghulam Rasul P. W. 15 and Arif deceased got employment in Bata Shoe Factory. It is also established from the record that Allah Rasi grandfather of Akbar Ali P. W. 1 was the brother of Hasan Muhammad, the great grandfather of Arif deceased and Ghulam Rasul P. W. 15, and this fact is denied by Akbar Ali P. W. I. Akbar All P. W. 1 admittedly remained in Jail for a considerable time on the allegation of having broken the legs of a nephew of one Rana Sadiq. He is established to be a partisan and living in the same courtyard along with Ghulam Rasul P. W. 15 and Arif deceased.
' The story set up as a whole does not convince us at all and for convicting a person on a capital charge we would require not only strong independent evidence in support of the prosecution version but also qua the implication of each accused, which we find completely lacking in this case. As stated earlier since we are not convinced of the presence of Akbar Ali P. W. 1 and Ghulam Rasul P. W. 15, and the version as set up by them, therefore, we would attach no importance to the alleged promptness of an F. I. R. Which is allegedly lodged by a witness, who in our view himself was not present at the time of incident and, therefore, nothing would turn upon the fact that the accused are named in such a first information report. Sticks P. 13, P. 14, and P. 15, were not stained with blood, therefore, these are not incriminating articles, and of no assistance to the prosecution.
Since we do not find the ocular testimony credible, the alleged recoveries of blood-stained datar P.
16, blood-stained shirt P. 12 and blood-stained takwa P.
17. At the instance of Barkat Ali and Rehmat Ali accused/respondents respectively would by itself not be a sufficiently incriminating piece of evidence for convicting them for murder. Recoveries at the instance of Barkat Ali and Rehmat Ali accused/respondents are sought to be proved by the testimony of Faqir Muhammad P.' W.
14. He is established to be the maternal uncle of Ghulam Rasul P W. 15 and husband'of paternal aunt of the deceased, therefore, he is enqually an interested witness and when we are looking for corroboration we need it from an independent source. Faqir Muhammad P. W. 14 stated that Rehmat Ali and Barkat Ali accused were brought jointly for the recovery on the third day of the incident at noon time and the same were effected within an hour. Before the Committing Magistrate he has deposed that recoveries were made at 9 a. m. Or 10 a. m. But according to the recovery memos. The recoveries were effected on the second day of the incident i. e. The occurrence having taken place on the night between the 15th and 16th, the recoveries were effected on the 18th of May. There are material contradictions between the testimony of P. W. 16 Latif Hussain Shah. Sub-Inspector and that of Faqir Muhammad P. W. 14, not only on the point of recovery of weapons but also on the point of taking into possession the shirt P. 12 at the instance of Rehmat Ali accused, therefore, we are also not convinced of the genuineness of the recoveries.
There is no other incriminating circumstance against any of the accused which by itself would be sufficient to exclude every possibility of the innocence of the accused.
' The learned trial Court in an elaborate and well-considered judgment has taken note of each and every point i. e. Being urged before us in appeal against acquittal. The learned trial Court has given cogent reasons for rejecting the prosecution evidence and we are of the opinion that it has taken a fair view of the evidence. The learned counsel appearing for the State as well as the learned counsel appearing for the complainant have not been able to point out any error of law, defect in the mode of trial, misreading or overlooking of evidence or any principle of appreciation of evidence, which has been violated by the learned trial Court. Their endeavour has been an attempt to canvass us for taking a different view of evidence in reappraisal, but we are afraid, the consistent judicial consensus is that an appellate Court would be extremely reluctant to interfere with an order of acquittal unless it is possible to demonstrate with certainty that none of the grounds upon which the learned lower Court has pur- A ported to acquit is at all supportable, even though upon the evidence on record a different conclusion might be arrived at.
' In the circumstances stated above, we find no merit in this appeal against acquittal and the same is dismissed.