' NAZEER AHMAD GHAZI, J.---Through this appeal against acquittal under section 417 of Cr.P.C, appellant Mulazim Hussain has called in question judgment dated; 30-9-2002 passed by learned trial Court i,e, Additional Sessions Judge, Jhang in case F.I.R. No,236/2001 under section 302, P.P.C, dated 16-8-2001, registered at Police Station City Chiniot, whereby respondent No,2/Shahbaz Hussain was acquitted.
2. Brief facts of prosecution case as unfolded in F.I.R. (Exh.PA/1) are that complainant was resident of. Mohallah Thathi Gharbi, Chiniot; had three sons among whom elder son Sajid Ali used to work with him in timber toll; on the fateful day of occurrence at about 6-30 p.m. He while searching his son for sending him for some work, reached street Imam Kot Riaz Shah Wali, where Muhammad Aslam and Muhammad Yousaf met him who told that they saw his son Sajid Ali at the Dera of Sajid Hussain Shah alias Pappu Shah; that when he entered along with above P.Ws. In the Dera he saw Shahbaz accused/respondent armed with dagger grappled with his son, who gave dagger blows on his son, who's right hand got injured while trying to restrain the same, accused gave second blow to Sajid Ali which hit on his abdomen due to that injuries Sajid Ali fell down, then accused gave repeated blows of dagger to Sajid Ali deceased; complainant along with P.Ws. Reached near the accused whereas accused fled away while raising dagger in the air, and threatening them; that his son died due to the injuries at the spot. Motive alleged in the F.I.R. Was the accused was a tailor he damaged suit of his son who admonished the accused due to which accused/respondent Shahbaz had murdered his son. On the statement of Mulazim Hussain appellant formal F.I.R. As referred above was registered against accused Shahbaz/respondent No,2
3. Muhammad Rafique S.-I. (P.W.7) investigated the case. After completion of his investigation and other legal formalities he according to his investigation found the accused/respondent guilty and accordingly submitted Challan before learned trial Court.
4. Charge was framed under section 302, P.P.C. Against accused/respondent on 8-1-2002, by learned trial Court, to which he pleaded not guilty and claimed trial.
5. During the trial, prosecution examined as many as 11 witnesses. P.W.1 Mulazim Hussain/appellant furnished ocular account of the incident as well as deposed about the motive set-up by prosecution; P.W.2 Muhammad Yousaf also furnished details of the occurrence; witnessed recovery proceedings of blood-stained earth and attested memo Exh. PB; during investigation in his presence accused/respondent made disclosure of crime weapon, he witnessed recovery proceedings of dagger (P.1) from residential house of accused/respondent, also attested memo of recovery Exh.PC; P.W.3 Shabbir identified dead body of the deceased at the time of post-mortem examination in THQ Hospital, Chiniot; P.W.4 Dr. Mumtaz Hussain Sajid while posted at THQ Hospital Chiniot conducted post-mortem examination on 16-8-2001 at 9-30 a.m, prepared post-mortem report Exh.PD as well as sketch of injuries of deceased Exh.PD/1, also signed injury statement Exh.PE and inquest report Exh.PF, delivered blood-stained clothes of deceased, police papers, PMR to P.W.
Nasrullah Khan constable. While conducting postmortem examination he observed following injuries on the body of the deceased;
(i) An incised penetrating stab wound 2 1/2 c.m. x 1 c.m. Abdomen cavity deep and epigastrium with corresponding injury on Qameez and Bunyan blood stained;
(ii) An incised wound 2 1/2 c.m. x 1 c.m. Bone deep on left shoulder with corresponding injury on blood-stained qameez;
(iii) An incised wound 2 1/2 c.m. x 1 c.m. Muscle deep on front of middle part of left arm with corresponding injury on qameez;
(iv) Six incised penetrating stab wounds 2 1/2 c.m. x 1 c.m. Chest cavity and abdominal cavity deep in area of 20 c.m. x 15 c.m. On left side back lower chest lumber region with corresponding cuts on qameez and bunyan;
(v) An incised wound 3 c.m. x 1 1/2 c.m. Abdominal cavity deep 2 c.m. Away from vertebral column on right back at lumber region with corresponding cuts on qameez and bunyan;
(vi) An incised wound 1 1/2 c.m. x 1/2 c.m. Muscle deep on palmar surface of right thumb;
(vii) An incised wound 3 c.m. x 1 c.m. Muscle deep on web between right thumb and right index finger; (viii)An incised wound 1 cm x 1/2 cm muscle deep on palmar surface at pulp of right middle finger;
(ix) An incised wound lc.m. x 1/2 c.m. Muscle deep on palmar surface pulp of right ring finger.
' According to his opinion death was caused due to haemorrhage and shock and injury to vital organ on left lung, liver, spleen and left kidney caused by injury Nos.1 and 2 which were sufficient to cause death in ordinary course of nature. Injury No,2 was Jurh Ghayr-Jaifah Mudihah. Injury Nos.3 and 6 to 9 are Jurh Ghayr Jaifah Badiah. All the injuries were ante mortem and inflicted by sharp- edged weapon. Time between injures and death was immediate, and between death and postmortem was about 2 to 4 hours.
6. P.W.5 Muhammad Nawaz head constable as Moharrir received complaint Exh.PA, sent by Ghulam Murtaza A.S-I through Zafar Abbas constable, and registered formal F.I.R. (Exh.PA/1), kept in Malkhana sealed parcel of blood-stained earth, sealed parcel of blood-stained dagger and later on handed over the same to P.W. Faiz Ahmad constable and P.W. Muhammad Aslam for its onward transmission to Chemical Examiner and Forensic Laboratory, Lahore respectively; P.W.6 Abid Hussain Sheraz draftman prepared sealed site plane Exh.PG and its duplicate copy Exh.PG/1; P.W.7 Muhammad Rafiq S.-I. Investigated the case. After the occurrence, he went to the spot/place of occurrence, prepared injury statement of deceased (Exh.PE), inquest report (Exh.PF), dispatched body of the deceased for post-mortem examination to THQ Hospital, Chiniot, secured blood- stained earth from the place of occurrence vide memo Exh.PB prepared rough site plan Exh.PH, got prepared scaled site plan of the place of occurrence (Exh.PG and Exh.PG/1), took into possession last-worn clothes of deceased i,e, Qameez (P-2), Shalwar (P.3), bunyan (P-4) all blood stained, vide memo Exh.PJ, arrested accused/respondent Shahbaz on 6-9-2001 after dismissal of his pre-arrest bail, recovered blood-stained dagger (P.1) from residential house of accused/respondent on his pointation vide memo Exh.PC, also prepared site plan of place of recovery (Exh.PC/1); recorded statements of witnesses, also got registered criminal case under section 13/20/65 Arms Ordinance against accused/respondent; after completion of investigation, found accused/ respondent guilty as per his investigation, accordingly submitted Challan before the learned trial Court as mentioned hereinabove; P.W.8 Ghulam Mustafa A.S-I at Rusta Chowk on 16-8-2001 at about 7 a.m. Got recorded complaint Exh.PA of complainant and sent the same to police station for registration of formal F.I.R; P.W.9 Nasarullah constable escorted dead body of the deceased to the mortuary of THQ Hospital, Chiniot, for post-mortem examination, produced last-worn clothes of deceased i,e, shirt P-2, Shalwar P-3, bunyan P-4, all blood stained, to Investigating Officer who took the same into possession vide memo Exh.PJ, which were handed over to him by the doctor after post-mortem examination, also handed over to Investigating Officer. PMR and relevant police papers which were handed over to him by the doctor; P.W. 10 Muhammad Aslam constable deposited sealed parcel of dagger in the office of Chemical Examiner, Lahore, after receiving the same from Muhammad Nawaz, Moharrir P.W.11 after receiving sealed parcel of blood-stained earth, from Muhammad Nawaz, Moharrir P.W., deposited the same in the office of Chemical Examiner, Lahore; where after D.D.A/ Malik Liaqat Hussain tendered in evidence report of Chemical Examiner (Exh.PK), report of serologist (Exh.PL) relating to blood-stained earth, report of Chemical Examiner Exh.PM and report of Serologist Exh.PN relating to bloodstained dagger and closed prosecution case.
7. The accused/respondent in his statement recorded under section 342, Cr.P.C.
Denied/controverted prosecution allegations and professed complete innocence. While answering to the question why he had been implicated in this case and as to why prosecution witnesses deposed against him, appellant responded as under; "The P. Ws. Are inter se related with the complainant and deceased and they deposed against me only for this very purpose that at the time of lodging of F.I.R. Papu Shah had given them the impression that I had committed the murder so they hastily under this impression lodged the F.I.R.
And now there was no other option for them to ring the same bell".
' However with regard to another question that have you anything else to say, his reply was as under; "I am innocent. At the time of alleged murder I was beneath the age of 18 years. I am a poor person and belong to my greaters settled in Chiniot. As far as the deceased family and Papu Shah is concerned. They are locals. Dera of Papu Shah was often used for the sodomists purposes, actually this murder was committed in the presence of Pappu Shah and the dead body was also recovered at his dera at the time of alleged murder, neither the complainant nor the witnesses were present at the scene of occurrence. Few months prior to this occurrence said Papu Shah and his team also tried forcibly to commit sodomy with me but. I had failed their nefarious designs so said Papu Shah bore a grudge against me for not fulfilling his lust at the fateful day. I neither visited said dera nor this occurrence was committed in my presence. I had not committed the murder of deceased, actually after the murder of deceased clever murderer gave the impression to the heirs of the deceased that I had committed the murder of deceased and Papu Shah also produced the alleged dagger to the complainant for giving this impression that I had left this dagger after the commission of murder at his dera, the said Papu Shah also got attracted some of his party men and they also gave the same impression with a hatchet conspiracy and under the influence of the impression without justifying the facts, the complainant party hastely nominated me as a murderer and now there is no other option for them to support the same case in the Court, the Investigating Officer had dishonestly conducted the investigation under the instruction of real culprits the Investigating Officer had neither even bothered to join Papu Shah in the investigation from whose dera the dead body was recovered. I am innocent and this case was registered against me only for misunderstanding. It is obviously seen that one person is not in the position to inflict so many injuries to the deceased person."
8. Appellant did not opt to make statement under section 340(2), Cr.P.C. However produced one witness in defence i,e, D.W.1 Muhammad Nawaz /MHC of Police Station City Chiniot who produced attested copy of register No,19 regarding serial No,128 as Exh.DB and closed his defence, whereafter learned trial Court after hearing the parties acquitted accused/respondent vide judgment dated 30-9-2002 while extending benefit of doubt, which judgment is under challenge by way of present appeal against acquittal.
9. We have heard contentions of both the sides and have gone through the record of the case.
10. To prove ocular version, prosecution produced P.W.1/Mulazim Hussain appellant real father of the deceased as well as P.W.2 Muhammad Yousaf paternal cousin of deceased. They claimed to have seen the occurrence, whereas third eye-witness namely Muhammad Aslam (Bhanja of complainant) was given-up by prosecution. P.W.1 stated that his height was about six feet as compared to that of accused/respondent who was 5 1/2 ft, also admitted that accused is of a slim body. Also admitted that from the Dera of Pappu Shah (place of occurrence) uptil P.S. City Chiniot and Rajowa Chowk at Jhang Road is thickly-populated area, also admitted that they raised no hue and cry at the place of occurrence, also admitted that house of Yousaf P.W.2 is at a distance of furlong from the Dera of Pappu Shah, Aslam P.W. Resides in an adjacent street of Muhammad Yousaf P.W., whereas his residence is at a distance of 1 1/2 furlong from the place of occurrence.
P.W.2 deposed during cross-examination that his residence is at a distance of 1-1/2 furlong and residence of Aslam P.W. Was at a distance of two furlong from the place of occurrence, also deposed that he had not seen accused grappling with deceased, that his physique is stronger than of the accused, although both the P.Ws. Claimed that during their presence accused/respondent caused injuries to the deceased.
11. With able assistance of learned counsel for the parties, we have observed that in this case as per prosecution the deceased had received as many as nine injuries as described by the P.W.-4 doctor Mumtaz Hussain Sajid, whereas while giving details of injuries during his statement before learned trial Court, under head (iv) he had clubbed six incised penetrating stab wounds in an area of 20 cm x 15 cm at left side back lower chest lumber region of deceased, hence in this view of the matter, total injuries received by the deceased comes to 14 and not nine as is mentioned by P. W.4 and by learned trial Court. Prosecution witnesses three in number who claimed to have seen the occurrence while present at the place of occurrence did not make any attempt to save their dearest one from the hands of single accused/respondent alleged to be armed with only dagger at the time of occurrence, who allegedly caused 14 injuries in total, in their presence to the deceased which required sufficient time to cause/commit such injuries. It is really very strange that prosecution witnesses did not make a single attempt to rescue the deceased, which made their presence at the place of occurrence highly doubtful. Had the prosecution witnesses been present at the spot as claimed by prosecution, they could have easily overpowered single accused armed only with a dagger. In this back- ground it is highly unbelievable that three persons being blood relations present at the place of occurrence remained watching accused/respondent inflicting injuries to deceased one after the other and remained silent spectator, which factor throws clouds of doubts at the veracity of prosecution witnesses. Conduct of P.Ws. Was unnatural and unusual and was not appealing to prudent and reasonable mind. P.Ws. Was also resided at some distance from the place of occurrence; they failed to explain their presence at the spot at relevant time. We, therefore, cannot rule out possibility of their being chance witnesses. Hence learned trial Court rightly disbelieved the ocular account of prosecution. In this regard we may refer case law "Liaquat Ali v. The State" reported as 2008 SCM R 95 wherein an identical nature of case their lordships observed that; "Prosecution witness who was first cousin and brother-in-law of deceased claimed to have seen the occurrence from a distance of 30ft---Two other witnesses were also attracted to the spot, but none had rescued the deceased and accused had a free hand to inflict as many as nine injuries on the person of deceased--- Accused was allegedly a single assailant and if said witnesses were there at the spot, they could have easily overpowered the accused---Such had made their presence at the spot doubtful".
' Another important factor which casts doubt in the prosecution case is the statement of P.W.8 who is author of the complaint Exh.PA he during cross-examination admitted that he sent Exh.PA to the police station for the registration of formal F.I.R. But the time 7-15 was not written thereupon and afterwards the time was mentioned in the F.I.R. When he realized this fact. This non-mentioning of time in Exh.PA also casts doubts regarding the promptness of F.I.R. Possibility cannot be ruled out that the F.I.R. Was lodged after consultations and deliberations as it was an unwitnessed occurrence.
12. Motive behind the occurrence claimed by the prosecution in the F.I.R. (Exh.PA) and disclosed in witness box by P.W.1 complainant was that appellant Shahbaz was tailor master and the deceased got stitched some clothes from him which the appellant could not stitch properly and damaged the suit. Due to this reason an altercation took place between the deceased and appellant and this was the motive for committing murder of deceased. P.W.1 is the sole witness of the motive, even his evidence regarding this fact is a hearsay evidence and no other witness corroborated him on this point. Even during the investigation, improperly stitched clothes were not produced before the Investigating Officer, therefore, the evidence regarding motive has been rightly disbelieved by the learned trial Court. Prosecution has utterly failed to prove the motive in this case. Even otherwise where ocular account fails then evidence of motive, however strong the same may be, becomes of no importance.
13. As far as recovery of Crime weapon i,e, dagger from accused/ respondent is concerned as per prosecution case dagger was recovered from accused/appellant on 12-9-2001 by P.W.7/Muhammad Rafique S.-I, vide memo Exh.PC; accused/respondent was arrested on 6-9-2001, whereas according to Exh.DB.(register No,19) dagger, sealed parcel containing blood-stained earth, last-worn clothes of deceased were deposited in Malkhana of police station on 21-8-2001 by Muhammad Rafique S.-I., which were taken into possession on 16-8-2001, in such circumstances, recovery of crime weapon of dagger allegedly recovered from accused/respondent have become highly doubtful and could serve no useful purpose for prosecution, which was rightly disbelieved by learned trial Court.
14. As far as medical evidence is concerned, suffice it to say that medical evidence may confirm ocular evidence with regard to seat of injury, nature of injury and kind of weapon used in the commission of the offence, but could not connect the accused with the commission of crime, as medical evidence is always considered as supporting/ corroborative piece of evidence, hence injuries by themselves are not sufficient to identify the culprit. As we have not believed the ocular account of prosecution, therefore medical evidence is of no help to the prosecution. Reliance is placed on case-laws Muhammad Aslam v. Sabir Hussain and others 2009 SCM R 985, Muhammad Tasawar v. Hafiz Zulkarnain and 2 others PLD 2009 53, Ghulam Murtaza v. Muhammad Akram and others 2007 SCM R 1549, Muhammad Rahim and others v, Bakht Muhammad and others 2006 SCM R 1217, Mehmood Ahmad and 3 others v. The State and another 1995 SCM R 127, Muhammad Iqbal v.
Abid Hussain alias Mithu and 6 others 1994 SCM R 1928.
15. After acquittal from a Court of competent jurisdiction, accused secured double presumption of innocence, which could not be disturbed until and unless judgment is found to be perverse, suffering from error of jurisdiction or in case of misreading or non-reading of evidence as judgment of acquittal could not be disturbed on the ground that second opinion may reasonably be possible. In this regard we are fortified from latest judgment delivered by honourable Supreme Court in case "Muhammad Aslam v. Sabir Hussain and others" reported as 2009 SCM R 985 as under:-- "S.417---Appeal against acquittal---Principles---Law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law---Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence---Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible".
' And in case "Mst. Saira Bibi v. Muhammad Asif and others" reported as 2009 SCM R 946 wherein their lordships observed as under; "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light should be found wholly as artificial, shocking and ridiculous."
' Same view was adopted by honourable Supreme Court in earlier judgments Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11, and number of other judgments.
16. For the reasons stated above, we found that findings of learned trial Court are neither perverse nor arbitrary, appellant failed to point out any misreading or non-reading of evidence. Findings of learned trial Court are well reasoned, supported by material on record, hence we see no merits in instant appeal, same stands dismissed.