SHAHID HAMEED DAR, J. -We intend to dispose of through this judgment Criminal Appeal No. 223 of 2006, filed by Syed Munawar Hussain Shah complainant (PW-7) against acquittal of Tanvir Abbas, Attaullah Shah and Zeeshan Tariq Shah respondents-accused, vide judgment dated 29.4.2006 passed by learned Additional Sessions Judge, Chakwal, in case F.I.R. No. 46 of 2003, dated 22.06.2003 under Sections 302, 34, P.P.C. Registered at Police Station, Tamman, District Chakwal.
2. The respondents-accused, were tried in the Court of learned Additional Sessions Judge, Chakwal for having committed the murder of Samar Abbas (deceased), a nephew of the complainant. The occurrence took place at Maghreb prayer time on 22.6.2003 in the revenue estate of Dhair Mond, 10 kilometers from Police Station, Tamman, Tehsil Talagang, District Chakwal. The statement (Exh.PB) got recorded by Syed Munawar Hussain Shah, complainant (PW-7) formed the basis for registration of formal F.I.R. Exh.PB/1.
3. The prosecution story narrated by Syed Munawar Hussain Shah, PW-7 in his statement (Exh.PB and F.I.R. Exh.PB/1) is that he had retired from Pak. Army as Honorary Captain; he went to the village mosque to offer Maghreb prayer on 22.6.2003; when he reached near the mosque, Musarat Abbas (PW-8) came running and told him that Zeeshan Shah, Tanvir Shah and Atta Ullah (since acquitted) had abducted Samar Abbas (deceased) after having tied him with ropes; hr the meanwhile Shafaqat Hussain PW (not produced), the son of the complainant came out of the mosque so they three, started moving towards the house of Zeeshan accused; on the way, Ghulam Abbas PW (not produced) also joined them; when they reached near the house of Zeeshan, they heard hubbub from the shrine of Mehboob Shah so they rushed to the shrine and saw that Zeeshan Shah, Tanvir Shah and Atta Ullah Shah accused (since acquitted) all armed with pistols had aimed their weapons at Samar Abbas Shah (deceased), whose arms were tied with a string on the back; within their view all of them made fire shots with their weapons at Samar Abbas Shah which landed on frontal and posterior side of his body; the accused fled away, as the complainant and his companions challenged them; Samar Abbas succumbed to the injuries at the spot.
4. The motive behind the occurrence was: that Samar Abbas (deceased) had contracted run- away marriage with Mst. Sadaf sister of Zeeshan accused, as a result whereof he was badly annoyed with the former so due to this grudge he aided by his two maternal uncles murdered Samar Abbas Shah at the shrine.
5. The complainant (PW-7) appeared before Munsaf Khan, S.l. (PW-9)" at the place of occurrence and recorded his statement Exh.PB at 9:00 p.m. On 22.6.2003 for registration of formal F.I.R.
(Exh.PB/1).
6. After recording the statement Exh.PB of Syed Munawar Hussain Shah, complainant, Munsaf Khan, S.I. /I.O., (PW-9) untied the hands of the deceased and took into possession rope P-1 vide recovery memo. Exh.PD; on examination of the dead-body of the deceased, the I.O. Prepared injury statement Exh.PI, inquest report Exh.PJ and despatched the dead-body to T.H.Q: Hospital, Talagang, District Chakwal for necropsy under the escort of Muhammad Munir 349/HC, PW (not produced); he inspected the place of occurrence and collected blood-stained earth vide memo. Exh.PE; secured 8 empties of 30 bore P-2/1-8 from the place of occurrence vide memo. Exh.PF and prepared visual site plan Exh.PK qua the place of incident; he took into possession last worn blood- stained clothes of the deceased shirt P-5, Shalwar P-6 vide memo. Exh.PL; he got prepared site plan-in-scale, Exh.PC and Exh.PC/1 by Sher Hussain, Patwari, PW4. He arrested Tanvir Shah and Atta Ullah accused on 11.7.2003; Atta Ullah accused (since acquitted), pursuant to his disclosure, on 18,7.2003 firstly got recovered sua (poker) P-3 vide memo. Exh.PG followed by recovery of pistol 30 bore P-4 vide memo. Exh.PH; the I.O. Drew the site plans Exh.PG/1 and Exh.PHh qua the above- said places of recovery; the acquitted accused Zeeshan was arrested on 11.9.2003 by the I.O. Who made a disclosure during interrogation on 24.9.2003 and led to the recovery of pistol 30 bore P-7 vide memo. Exh.PM; Exh.PM/1 is the site plan of the place of recovery. On conclusion of investigation the I.O. Placed Tanvir Shah, respondent-accused in column No. 2 of report under Section 173, Cr.P.C. And challaned the other accused.
7. The dead-body of Syed Samar Abbas, deceased was dissected at 5:00 a.m. An 23.6.2003 by Dr. Muhammad Abdul Samad, PW-1 . Vide post-mortem examination report Exh.PA (Pictorial Diagram Exh.PA/1) who found following injuries on the corpse of the deceased;--
(1) Punctured wound 0.8 cm x 0.8 cm over right upper chest proximal 4th, 3 cm from mid line and 6 cm distal to right clavicle.
(2) Punctured wound, 0.8 cm x 0.8 cm over the lateral side of right chest, 5.5 cm from right nipple and 7.5 cm from right axilla.
(3) Punctured wound 0.8 cm x 0.8 cm over the lateral side of right upper chest, 3 cm lateral and slightly above from injury No. 2.
(4) Punctured wound of 0.6 cm x 0.6 cm over the frontal side of upper abdomen, 7 cm from midline, 15 cm distal right nipple.
(5) Punctured wound 0.5 cm x 0.5 cm over frontal side of upper abdomen, 1.5 Cm from midline, 5 cm from injury No. 4.
(6) Punctured wound 0.8 cm x 0.8 cm over the frontal side of left lower chest 2 cm from midline between 6 and 7 intercostal space.
(7) Punctured wound 0.8 cm x 0.8 cm over the frontal side of left chest, 10 cm from midline and 7 cm below from left nipple.
(8) Punctured wound 0.9 cm x 1 cm over the proximal and lateral side of right thigh, 11 cm below right crest.
(9) Punctured wound 1 cm x;1 cm over the back of right buttock, 5 cm from iliac crest and 12 cm from midline.
(10) Punctured wound 0.6 cm x 0.6 cm over the middle of right buttock, 7 cm medial and below from injury No. 9.
(11) Punctured wound 0.5 cm x 0.5 cm over the middle third of right buttock, 2 cm below to injury No. 10.
(12) Punctured wound 0.3 cm x 0.3 cm over the proximal end of right thigh, 2.5 cm from lower border of right buttock.
(13) Punctured wound 1 cm x 1 cm over the lateral side and middle third of left arm, 16 cm below from top of left shoulder.
(14) Punctured wound 0.7 cm x 0.7 cm oyer the medial side of upper end of middle third of left arm, 3 cm from axilla.
(15) Punctured wound 0.9 cm x 0.8 cm oyer the upper third of back of left chest 3 cm distal to left axilla.
(16) Punctured wound 0.8 cm x 0.3 cm Over the upper third of back of left chest, medial border of left scapula, 6 cm from midline and 11 cm below from scapular crest.
(17) Punctured wound 0.8 cm x 0.8 cm over the upper third of back of left chest, 4 cm from midline and 5 cm proximal to injury No. 16.
(18) Punctured wound 1 cm x 1 cm over the back of right chest, lower end of middle third region 2 cm from midline, 18 cm from right scapula crest.
(19) Punctured wound 1 cm x 1 cm over the back of < right chest medial border of right scapular region, 7 cm from midline and 9 cm from scapular crest right one. Corresponding holes were present over the clothes.
The cause of death, as recorded by the medical officer was due to cardio-respiratory failure/arrest leading to shock and haemorrhage caused by chest injuries Nos. 1 to 3,6,7, 15 to 19.
The probable time, elapsed between injuries and death was within 30 minutes and between death and postmortem examination within 6 to 12 hours.
8. After supply of copies of the requisite documents under Section 265-C, Cr.P.C., the respondent- accused were indicted who did not plead guilty the charge and claimed a trial. The prosecution was directed by the Trial Court to produce evidence so as to prove the charge against the accused.
9. In support of its case, the prosecution produced 9 PWS in toto. The learned DDA announced the prosecution case closed after he tendered in evidence the reports of Chemical Examiner, Lahore, Exh.PN qua bloodstained earth, Exh.PO, qua sua (poker) and that of Forensic Science Laboratory Exh.PP and Exh.PQ.
10. The respondent-accused Tanvir Shah in his statement under Section 342, Cr.P.C. Denied the charge against him, professed innocence and on a question, "Why this case against you and why the PWs have deposed against you replied as under:- "We had no reason to commit the murder of Samar Abbas. As he had entered into love marriage with Sadaf and met his death in mysterious circumstances because of his bad character, so having suspicion on my co-accused and me we have been falsely roped in this case. No witness was present at the scene of crime as it was an un-seen murder. At a belated stage entire evidence was fabricated. We are quite innocent."
Attaullah Shah and Zeeshan Tariq Shah, the respondents- accused also cried about their innocence and false implication in this case, but, they, instead of recording elaborate replies to the question mentioned as above, preferred- to rely upon the above-said version of their co-accused Tanveer Shah.
11. The respondent-accused neither led defence evidence nor opted to appear as their own witness under Section 340(2), Cr.P.C. To disprove the charge against them.
12. After hearing learned counsel for both the sides and perusing the material on the record, the learned Trial Court acquitted the respondent-accused, vide judgment dated 29.4.2006, hence, instant appeal.
13. We have heard learned counsel for the appellant, learned counsel for respondent-accused and learned DPG.
14. Learned counsel for the appellant in support of this appeal submits that the prosecution had fully established the guilt of the accused beyond, reasonable shadow of doubt through forthright ocular account, corroboratory medical evidence, the evidence of recovery of weapon of offence and the evidence of motive but the learned Trial Court without application of judicious mind acquitted them through a bad and foolish judgment which may not be sustained; the ocular account was furnished by Syed Munawar Hussain Shah, PW-7 and Musarat Abbas, PW-8 who rendered confidence inspiring statements which could not be rejected by any argument but the learned Trial Court failed to appraise the same in true perspective; the impugned judgment has been passed in an arbitrary, capricious and perverse manner which has resulted in grave miscarriage of justice; the conclusions drawn by the learned Trial Court are inconsonant with the evidence available on the record and prosecution evidence has been mis-appraised by the learned Trial Court; the respondent-accused had committed cold-blooded murder of the deceased authoring as many as 19 punctured wounds; though the Medical Officer, PW-1 had joined hands with respondent-accused to damage the prosecution case yet the medical evidence in its present form was still resolvable in favour of the prosecution and against the respondents- accused as it showed a number of fire-arm injuries on the b
15. Learned State counsel supports the learned counsel for the appellant.
16. On the other hand learned counsel for the respondents-accused submits that the deceased was a person of criminal character who had many enemies around him and nobody knows as to who had committed his murder; the prosecution badly failed during trial to prove its case against the accused through any viable connecting evidence and no other option was available with the learned Trial Court but to pronounce their acquittal; the medical evidence is the chief wrecking element in this case as it discloses presence of fire-arm injuries as well as the injuries caused by pointed cylindrical weapon; the witnesses -0! Ocular account had rendered self-discrepant statements which brim with contradictions and incompatibilities; the impugned judgment has been passed judiciously with sound reasons and does not call for any interference.
17. The prosecution case as set out in F.I.R. Exh.PB/1 was that Samar Abbas Shah deceased had been ruthlessly murdered by Zeeshan Shah, Tanvir Shah, and Atta Ullah Shah accused (since acquitted) who all sprayed volleys of bullets at the deceased and left behind his bullet ridden body at the place of occurrence, when the PWs exhorted loudly. It has not been stated anywhere in the F.I.R. That the accused were armed with sua (poker) as well at the time of occurrence. The medical evidence presented by Qr. Muhammad Abdul Samad, PW-1, however disclosed 19 punctured wounds on the body of the deceased and the term puncture made the situation confusing for the prosecution witnesses as the medical officer in statement contended as under: "All injuries were anti-mortem in nature. In prima facie all injuries were consistent with fire-arm weapon injuries, however possibility of pointed cylindrical weapon could not be ruled out."
18. The above description of the medical officer is found in post-mortem examination report Exh.PA, prepared by Dr. Muhammad Abdul Samad, PW-1, which also reveals that the body of the deceased had been dissected at 5:00 a.m. On 23.6.2003, almost within 10 hours of the occurrence. The above- said finding of the medical officer must have prompted Musarat Abbas, PW-8, change his stance by making improvement in his testimony that accused Zeeshan and Atta Ullah in addition to pistols were also armed with suas (pokers). He further deposed about the fact that all three accused caused injuries on the body of Samar Abbas with suas (pokers) who ran to save his life but he was fired I at by all the three accused in verandah of the shrine due to which he fell down and died. The testimonies of the eye- witnesses are materially discrepant inter se. On one hand complainant, PW-7 has- contended that all the injuries caused on the body of the deceased were by fire-arm whereas, PW-8 has completely changed the tenor of the] occurrence by stating that the accused had inflicted injuries to the deceased with suas (pokers) and pistols. It is to be] remembered that two accused Zeeshan and Atta Ullah have! Been burdened by these witnesses with the liability of having two weapons in their possession at the time of occurrence, one sua (poker) and the other pistol. Which of the 19 punctured wounds on the body of the deceased had been caused by means of Sua (poker) and which of the injuries could be termed to have been caused with a firearm is a mystery which has completely engulfed the prosecution] case. It has been contended by the learned counsel for the! Appellant that the medical officer being a co-villager of the respondent accused had been won over by them immediately after the occurrence and that he dishonestly] and criminally damaged the prosecution case by mentioning] in the post-mortem examination report that all the wounds on the body of the deceased were the punctured wounds and that these could be caused by the fire-arm(s) or by a pointed cylindrical weapon. Had it been so, the medical officer when] examined as PW-1, could have been re-examined on this] point by the prosecution under Section 540, Cr.P.C. Or by way of putting certain questions to resolve the controversy! Under Article 150 of Qanun-e-Shahadat Order, 1984. The statement of Musarat Abbas, PW-8 had caused art insurmountable gap in the prosecution case which finally! Resulted in the acquittal of the respondents-accused.
19. The description of the occurrence narrated by both the eye-witnesses is not only unnatural but also highly exaggerative. According to Syed Munawar Hussain Shah, PW-7 all injuries on the body of the deceased had been caused by fire-arm which fact has not been seconded or endorsed by Musarat Abbas, PW-8. If some injuries had been caused with a cylindrical pointed weapon, by Zeeshan and Atta Ullah accused (since acquitted), it was incumbent upon the prosecution to point out said injuries to determine as to which one and how many injuries had been caused by a weapon other than the fire-arm. The learned trial Court has dealt with this proposition/cleavage. In the prosecution case with required degree of legal acumen-ship, intellect and wisdom. In paragraphs Nos. 15 and ,16 of the impugned judgment, the relevant material from the text book of Medical Jurisprudence and Toxicology of Parikh has been reproduced by the learned Trial Court to highlight the characteristics of fire-arm entry wound as well as the exit wound and the learned Trial Court has rightly drawn the conclusion that the medical evidence had turned the prosecution case doubtful.
20. The medical evidence appears to have driven the prosecution case to more and more haze as we look into the depth of the dissection conducted by the medical officer. Exterisive dissection of the dead-body had been done by the medical. Officer , but he could not find any foreign metallic body, arrested anywhere in the internal viscerae. PW-1 has categorically stated that all the injuries were punctured wounds and that characteristics of all wounds, which could normally co-relate with fire-arm were not found by him during autopsy. None of the injuries of the deceased had been found,,blackened, charred or burnt nor any other evidence could be collected by the medical officer to establish that the deceased had died because of the fire-arm injuries. Whether or not the medical officer played any dirty role while dissecting the dead-body is a matter of guess Work.
Although a few observations about the conduct of the medical officer had been passed by this Court, while dealing with the bail plea of the accused yet, the prosecution did not wake up in time and enjoyed deep slumber which cost them their case. The learned Trial Court in a careful scrutiny of the depositions of the witnesses of ocular account has rightly concluded in Para No. 19 of the impugned judgment that from every aspect prosecution was under a big challenge and had no way to come out from the weaknesses of their case. The discussion done by the learned Trial Court is important:- '"Learned counsel for the complainant contends that if this Court disbelieves statement of Musarrat Abbas, even* then statement of Munawar Shah is in the field and on the sole statement of him conviction can be recorded. I afraid that if I do so then I cannot hold what learned counsel for the complainant, contends because after disbelieving Musarrat Shah the entire prosecution's story will come on ground as he was the man who first of all had seen accused and deceased together and then informed complainant and others. Learned counsel for complainant when confronted .With the proposition that how he can say the postmortem report against facts when his two witnesses have' introduced two of one episode and that whether he claims all injuries as of fire-arm or sharp point weapon or both; he is not in a position to stand on any point. If it is stated that these are fire- arm injuries than Musarrat Shah is falsified. If it is argued that these are sharp point weapon injuries than Munawwar Shah is belied and if it is maintained that these are result of both weapons even than Munawwar Shah is negated. So from every aspect prosecution is under a big challenge and has no way to come out from this task successfully."
21. The ocular account thus has been rightly disbelieved and brushed-aside by the learned Trial Court, to the mind of this Court, the prosecution clearly fell short of the standard and the yardstick whereby they could claim that they had brought home the guilt of the accused beyond reasonable shadow of doubt. The self-discrepant ocular account, the ever damaging medical evidence and the recovery evidence has caused total demolishing of the prosecution case. The acquittal of the respondent-accused has been recorded with cogent reasons and convincing argument by the learned Trial Court. When an accused is acquitted of a charge by a Court of competent jurisdiction, double presumption of innocence is attached with him, one pertaining to the pretrial stage that every accused is innocent till proved otherwise and secondly through a judicial verdict. Same is the status of the respondents-accused as they have been acquitted by the learned Trial Court through the impugned judgment which does not suffer from any legal infirmity or weakness. The observations and findings recorded by the learned Trial Court are weighty and plausible. It has been held innumerably by this Court as well as by the apex Court that judgment of acquittal cannot be interfered with unless it can be dubbed as arbitrary, capricious, fanciful or against the record which is not the situation in the instant case. Reliance is placed on case titled Ghulam Sikandar and another v. Mamraz Khan and others (PLD 1985 Supreme Court 11), Najaf Saleem v.
Lady Dr. Tasneem and others (2004 YLR 407) and The State v. Nazir Ahmad and others (1999 SCM R 610).
22. The upshot of the above discussion is that we are fully convinced that no case for interference by this Court is made out, therefore, the instant appeal filed by Syed Munawar Hussain Shah against the acquittal of the respondents fails, which is dismissed accordingly.