SHAHID HAMEED DAR, J. - We intend to dispose of through this judgment Criminal Appeal No. 506 of 200Q, filed by Zaheer Akhjar, complainant, PW-4 against acquittal of Tariq Mahmood, respondent- accused, vide judgment dated 1.11.2000 passed by learned Addl. Sessions Judge, Rawalpindi, in case F.j.R. No. 38 of 1999, dated 14.1.1999 u/S. 302, P.P.C. Registered at Police Station, Sadiqabad, Rawalpindi.
2. Tariq Mehmood, respondent-accused was tried in the Court of learned Additional Sessions Judge; Rawalpindi for an offence under Section 302, P.P.C. For causing murder of Nasir Mahmood (deceased). Theoccurrence took place at night between 13/14.1.1999 in the area of Police Station, Sadiqabad, Tehsil & District Rawalpindi. The statement (Exh.PD) got recorded by Zahoor Akhtar, complainant, PW-4 formed the basis for the registration of formal F.I.R. Exh.PD/2. The respondent was charged under Section 302, P.P.C. He pleaded not guilty and claimed a trial.
3. The prosecution story narrated by Zahoor Akhtar PW-4 in his statement (Exh.P1) and F.I.R.
(Exh.PD/2) is that he lived in his own house at Service Road, Sadiqabad and dealt in cattle-head; he went to the house of his brother Khushhal Khan (PW-5) who told him that he had rebuked Nasir Mahmood (deceased), the previous night as tie did not go to his place of job, due. To which he left the house in anger and did not return; the complainant and his brother Khushhal Khan went out to search for Nasir Mahmood (deceased) and reached Service Road near Single Minaret Mosque where M/s. Muhammad Safdar, PW (not produced) and Aurangzeb, PW-8 met them who disclosed that they were present-with Tariq Mahmood (respondent) in his baithak, last night, and Nasir Mahmood (deceased) also reached there who told them that he would stay with Tariq Mahmood (respondent) for a night and a little while thereafter, they left them together, in the baithak; thereupon the complainant (PW-4), Khushhal Khan (PW-5), Muhammad Safdar PW, (not produced) and Aurangzeb (PW-8) reached the baithak of Tariq Mahmood (respondent) at about 5.30 p.m. And knocked at its door which was opened by Tariq Mahmood (respondent) who looked confused and on seeing them, ran away; the complainant and his companions entered the baithak and found the dead-body of Nasir Mahmood, soaked in blood, lying on the floor.
4. The motive behind the occurrence was that a quarrel had taken place between Nasir Mahmood (deceased) and Tariq Mahmood, respondent-accused a week back, on a money matter, which was patched up by the complainant etc. And due to this grudge, Tariq Mahmood had murdered Nasir Mahmood.
5. The complainant (PW-4) appeared before Aqa.l Dad, S.I., PW-12 at the place of occurrence and recorded his statement Exh.PD at 6.30 p.m. On 14.1.1999 for registration of formal F.I.R. (Exh.PD/2) No. 38 of 1999, dated14.1.1999 u IS. 304, P.P.G., at Police Station, Sadiqabad.
6. After recording the statement Exh.PD of Zahoor Akhtar complainant, Aqal Dad, S.t./I.O., PW-12 examined the dead-body of Nasir Mahmood, deceased, prepared inquest report Exh.PG, injury statement Exh.PH and dispatched the dead-body to Civil Hospital, Rawalpindi for neeropsy under the escort of Maqsood Ahmad 1273/C, PW-7 inspected the place of occurrence and prepared visual site plan, collected blood by means of cotton vide recovery memo. Exh.PB and recorded the statements of witnesses u/S. 161, Cr.P.C.; he took into possession the blood-stained clothes of the deceased on 15.1.1999 shirt P-2, Shalwar P-3, Bunyan P-4, sweater P-5 vide memo. Exft.PF, he got prepared the scaled site plan Exh.PC and Exh.PC/1 by Qamar-ud-Din draftsman, PW-3. He arrested the respondent-accused on 17.1.1999 and recovered a razor on his point'edness on 21.1,1999 from the above-said baithak vide recovery memo. Exh.PA, attested by Sagheer Akhtar, PW-1 and Jahangir, PW (not produced). He dispatched the accused to judicial lock-up on 22.1.1999 and submitted challan u/S. 173, CrP.C. Against him before the learned Trial Court.
7. The dead-body of Nasir Mahmood, deceased was dissected at 9.00 a m. On 15:1.1999 by Dr. Zafar Mahmood, D.M.S., at D.H.Q. Hospital, Rawalpindi vide postmortem examination report Exh.PF who found following injuries on the corpse of the deceased:-
(1) An incised wound 13 c.m. x 2 c.m. In front of the neck extending from right side, of neck to the anterior aspect of left side of neck, 6.5 c m.2011 from right ear,'8 c.m. From chin, 12 c.m. From left ear, 1 c.m. Above sternal notch.
(2) An incised wound 8 c.m. x 1 c m. Lying. Transversely, bone deep on the left parietal region of the head, 7 c.m. Above left ear.
(3) An incised wound 3 c.m. x 0.5 c.m. On left occipital region 3 c.m. From left ear.
(4) An incised wound 2.5 c.m. x 0.5 c.m. On the palmer aspect of the base of left thumb.
(5) An incised wound 1.5 c.m. x 0.5 c.m. Bone deep, on palmer aspect of middle phalynx of middle finger of right hand.
(6) : An incised wound 1.5 c.m. x 0.5 c.m. Situatedon palmer aspect of middle phalynx of right ring finger.
(7) An incised wound 1.5 c.m. x 0.5 c.m. Situated on palmer aspect of middle phalynx of little finger of the right hand.
The cause of death, was the shock and extensive haemorrhage due to damage to major blood vessels like carotid artery etc. All the injuries were ante-mortem and caused by sharp-edged weapon.
The probable time, elapsed between injuries and death was "within 30 minutes" and between death and postmortem examination within 30 hours.
After supply of copies of the requisite documents u/S. 265-C, Cr.P.C., the respondent-accused was indicated who did not plead guilty to the chrage and claimed a trial. The prosecution was directed by the Trial Court to produce evidence so as to prove the charge against the accused.
8. In support of its case, the prosecution produced 12 PWs. In toto. Sagheer Ahmad PW-1 attested recovery memo. Exh.PA qua razor P-1. Qamar-ud-Din,draftsman PW-3 prepared the site plan Exh.PC and Exh.PC/1 of the place of occurrence, in the scale of 1 inch equal to 10 feet. Zahoor Akhtar, PW-4 endorsed his version Exh.PD, recorded by the 1.0. PW-12. Khushhal Khan PW-5 made an identical statement like Zahoor Akhtar, complainant, Aurangzeb PW-8 is a witness of last seen evidence, Ahmad Yar, ASI, PW-10 dispatched the sealed parcels of blood-stained cotton and razor to the office of Chemical Examiner, Punjab, Lahore through Muhammad Arif, HC, PW-11 on 1,2.1999 who deposited the said parcels in the concerned office intake. Aqal Das, S.l. PW-12 conducted complete investigation in this case. Rest of the prosecution evidence is almost formal in character.
9. The learned Public Prosecutor tendered in evidence the reports of Chemical Examiner, Lahore, Exh.PI, Exh.PJ and report of the Serologist Exh.PK and announced the prosecution case closed.
10. The respondent-accused, in his statement u/S. 342, Cr.P.C. Denied the charges against him, professed his innocence and on a question, "Why this case against you and why the PWs have deposed against you" replied as under:-- "The deceased was addicted to heroin. The complainant got rid of him and falsely involved me in the instant case. All the PWs are close relative of the deceased and they are interested witnesses. I was made a scapegoat in this case. The complainant and the PWs are trying to kiH two birds with one shot."
11. The respondent-accused neither led defence evidence nor opted to appear as his own witness u/S. 340(2), Cr.P.C. To disprove the charge against him.
12. After hearing learned counsels for both the sides- and perusing the material on the record, the learned Trial Court acquitted the respondent-accused, vide judgment dated 25.11.2000. Hence, instant appeal.
13. We have heard the learned counsel for the appellant at full length who has contended that prosecution had come up with clean hands and its bona fide was above board throughout the trial but the learned Trial Court fell in. Error to accept an artificial type of doubt to acquit the accused/respondent; it is true that the enmity is a double- edged weapon which may be utilized to trap the enemy but on the other hand it is a forceful lever to involve the real culprits and substitution would be a rare phenomena when the deceased was a close relative of the complainant side; the recovery of the weapon of offence P-1 from the respondent-accused was also a good piece of evidence to support the other circumstantial evidence; though the place of occurrence was situated in a populated area but mere fact that no person from the vicinity had come forward to become a witness could be well understood from the fact' that the people generally are shy to poke their nose in the affairs of others; the presence and production of independent and disinterested witnesses is not only a far cry but also almost impracticable; the deceased was last seen in the company of the respondent-accused by Aurangzeb PW-8 and the ill- fated deceased could not be seen alive, thereafter by anyone-else; the dead-body of the deceased was found lying in the baithak which was in exclusive possession of the accused and he had no answer to offer in this regard; the PWs are related to both the sides, hence, they cannot be deemed to be interested or untrue witnesses; the respondent-accused was witnessed by PW-5, PW-6 and PW-8 departing the place of occurrence hurriedly in a confused and perturbed manner leaving behind the dead- body of the deceased in his baithak the grounds on which Trial Court proceeded to acquit the respondent-accused are not supportable from any evidence on record; the aforesaid PWs are minutely unanimous in their statements and despite a thorough and lengthy cross-examination, their statements could not be shaken; no reason is forthcoming as to why the respondent-accused should have been falsely implicated bythe complainant/appellant; minor discrepancies in the statements of the witnesses shall not be material particularly so when such testimony is otherwise fully corroborated by the medical evidence as well as circumstantial evidence; the discrepancies highlighted by the learned Trial Court in the statement of PW-5, PW-6 and PW-8 are of no important and do not go to the root of the case; lastly reiterates that medical evidence, recovery of the weapon of offence and motive fully support the charge and prove the case beyond pale of reasonable doubt. To substantiate the pleas he has placed reliance on Waheed Us. The State (PLD 2002 SC 62), Mst. Roheeda Vs. Khan Bahadur and another (1992 SCMR 1036), Muhammad Din Vs. The State (1998 SCMR 1), Abdul Rasheed Vs. Umid Ali and two others (PLD 1975 SC 227), Najaf Saleem Vs. Lady Dr. Tasneem and others (2004 YLR 407) and The State Vs. Muhammad Raja and three others (PLD 2004 Pesh. 1). - '14. Learned Deputy Prosecutor General supports learned counsel for the appellant.
15. On the other hand learned counsel for the respondent submits that the respondent has attained double presumption of innocence firstly, -that every accused is presumed to be innocent unless proved guilty and secondly by an order of acquittal in his favour by the Trial Court; the statements of the witnesses are full of contradictions and the prosecution case is devoid of any connecting evidence against the respondent-accused; the judgment of acquittal ordinarily is never upset, altered or interfered with unless same is perverse or fallacious; the prosecution case is preposterous and absolutely incredible as PW-5, PW-6 and PW-8 have badly failed to render any worthwhile evidence against the respondent; there is no corroborative evidence to supplement the statements of the above-said PWs; each and every bit of the prosecution evidence is defective and failing in intrinsic value, hence, not fit enough for reliance to implicate the accused with certainty; it is settled principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence: Reliance upon Haroon Vs. The State and another (1995 SCMR 1627), Zaheer Din Vs. The State (1993 SCMR 1628), Ghulam Sikandar and another Vs. Hamraz Khan and others (PLD 1985 SC 11), Ali Sher \/s. The State and 3 others (PLD 1980 SC 317), Muhammad Anwar Vs. The State (1997 P.Cr.L.J, 2075) and Pasham Khan and 7 others Vs. The State (PLD 1984 Pesh. 156).
16. We have examined the evidence with required degree of care with the assistance of learned counsel for both the parties in order to see whether appreciation of evidence by the Trial Court suffers from any misreading or non-reading of any material evidence.
17. The yardstick for assessm ent of the evidence in appeal against acquittal is markedly different from the standards set for appeal against conviction. In the appeal against conviction the appraisal of the evidence is dope in strict terms, ensuring exclusion of all of the improbabilities and inconsistencies but in case of an appeal against acquittal the same rigidity/inelasticity of the method is not be supplied. In respect of judgment of acquittal, the interference is only permissible if it is the product of gross misreading of the evidence having resulted in great miscarriage of justice.
The scope of an appeal against acquittal is much narrow than an . Appeal against conviction and its boundaries or limitations cannot be stretched two far, as is held in The State Vs. Muhammad Sharif and others (1996 SCMR 635).
18. The occurrence in this case takes a start from the point when Nasir Mahmood, deceased, leaves the house of his father Khushhal Khan, PW-5 in dismay as he was rebuked arid reprimanded by his father at 7.30 p.m. On13.1.1999 whereafter, he could not return to his house alive. Zahoor Akhtar, PW- 4 went to the house of his brother, PW-5 at 4.00/4.30 p.m. On 14.1.1999 and learnt about the disappearance of his nephew, Nasir Mahmood. According to PW-4 and PW-5 they set out in search of Nasir Mahmood and per-chance met Aurangzeb,' PW-8. And Muhammad Safdar PW (not produced) who told them that they had seen him in the baithak of the . Respondent-accused on 13.1.1999 and that he had informed them about his intention to stay with Nasir Mahmood in his baithak for a night. Having learnt the said fact all four i.e. The Complainant, PW-4, Khushhal Khan, PW-5, Aurangzeb PW-8 and Muhammad Safdar PW (not produced) went to the above-said baithak, found it closed so, they knocked at the door which was opened from inside by Tariq Mahmood, respondent-accused, who looked confused and perturbed and within their view he sped away. The PWs entered the baithak and found the dead-body of the ill-fated youth lying in a pole of blood, bn the floor. This is how they believed that Nasir Mahmood had been done to death by the respondent-acdCTsed. Thereafter, they informed the police, lodged the F.I.R., joined the investigation and caused the submission of challan against the accused before the learned Trial Court. When we look upon the prosecution case we find that it. Mainly hinges at the circumstantial evidence rendered by PW-5, PW-6 and PW-8 but the most crucial point involved in this case is whether or not the respondent-accused had committed the murder of the deceased?
19. There are a number of circumstances, which do not let the prosecution case proceed beyond'the shadow of .Doubt', against the respondent-accused. The deceased left his house on 13.1.1999 being crest fallen as he had been absued by his father PW-6 and was found by PW-8 in the baithak of the respondent-accused wherefrom his dead-body was recovered on 14.1.1999 at about 5.30 p.m. Muhammad Safdar PW (not produced) and Aurangzeb PW-8 met PW-5 and PW-6 and they all, according to their testimonies, went to the baithak of the accused wherefrom he emerged and within the view of the PWs allegedly ran away. Plainly speaking, the respondent- accused was empty handed at that time and he was pitched against four PWs who could easily overpower the accused at the spot and hand him over to the police without much difficulty. The PWs on opening the door by the accused, saw the dead-body of Nasir Mahmood deceased lying on the floor of the baithak and if the respondent-accused was confused or perturbed he could not escape or decamp as in such terrifying situation, the internal chemistry of human anatomy cannot supply much vigor and power to the body and one would start panting before he takes a start. If the depositions of the above-said PWs are believed it becomes all the more important that the accused had confined himself in the said baithak not finding enough courage to run away from the point of trouble and he opted to stay alongside the dead-body, pensively. Accordingly to thd medical evidence the time elapsed- between injuries and death was 30 minutes which means that the deceased was alive for half an hour till after he received the injuries. Had the respondent- accused butchered the deceased, he could have easily run away from the place of occurrence without being seen by any one. The PWs. Allegedly found the dead-body of the deceased in the baithak whereabout the PWs have admitted in their testimonies that it was in the exclusive ownership of grandfather of the respondent-accused. Aurangzeb PW-8 failed to furnish purpose of his alleged visit to the said baithak on13.1.1999 except stating that he alongwith Muhammad Safdar PW (not produced) sat in the above-said baithak at 9.00 p.m. Alongwith Tariq Mahmood respondent-accused. He is a resident of Service Road, Sadiqabad Rawalpindi whereas, accused Tariq Mahmood resided in village Maira Gulra Nat Abadi, Thalian, Tehisil & District Islamabad. He has admitted in his statement that his house is. Situated at a distance of half furlong from the place of occurrence. He has further stated that there was no street light around the said baithak.
He has deposed that a quarrel had taken place between the accused and the deceased on some money transaction about 8 to 10 days prior to the occurrence. If so, he would be the last man to prefer to stay overnight with a person driven by animus sentiments against him. The motive in fact is self-discrepant and badly dents the version of theabove-said PWs. Even if the motive dispute had been patched up between the parties yet the element of displeasure and heart burning cannot be outrightly disbelieved between the two so, the idea to pass a night with the respondent- accused in the above-said baithak is hardly believable. Zahoor Akhtar, PW-4 and Khushhal Khan, PW-5 have also deposed about the above-said motive with the contention that the deceased and the respondent-accused had a brawl about 7 to 8 days prior, to the occurrence. They have Contended that due to the said motive the accused committed the murder of Nasir Mahmood deceased. Had they resolved and patched up the matter between them, why would the respondent-accused commit the murder of the deceased just for nothing. If the respondent- accused was possessed with grudge and bias against the deceased then, he must be. a foolhardy to go to the respondent-accused to pass a night with him at his baithak. This is such a discrepancy, which has badly jolted the prosecution case.
20. It has been admitted by PW-4 that none of them chased the respondent-accused at the time of occurrence. PW-4 has also deposed that the motive incident was resolved by him and his brother but Tariq Mahmood, respondent-accused did not return the money to the deceased and only made a promise to return the same later on. He has admitted that only, one cot was lying in the baithak and no other furniture was available there except two cupboards. Khushhal Khan PW-5 has also admitted that neither he nor anyone of his companions ran after the accused when he emerged from the baithak and took to his heels within their view. He has rendered a very interesting answer that the baithak was lit with an electric bulb and they saw the dead-body in the light of the said bulb. According to him, only one cot waslying in the baithak.
21. Barring the discrepant statements of PW-4, PW-5 and PW-8 there is no other material evidence except the medical evidence, presented by Dr. Zafar Mahmood, PW-9, who had performed autopsy on the dead-body of the deceased at 9.00 a.m. On 15.1.1999 i.e. After about 15 hours of the registration of the F.I.R. The Medical Officer, PW-9 has worked out the time elapsed between death and the post-mortem examination as 30 hours which is startling and badly reflects upont he veracity of the statements of the witnesses of circumstantial evidence. The delayed postmortem examination is also a strong factor going against the prosecution case and the.PWs have been unable to furnish any satisfactory answer as to why the dead-body of the deceased was dissected with such a considerable delay. The answer to this query however, can be found that F.I.R. Exh.PD/2 in fact had not been recorded at the time shown on its teno. According to above-said PWs they had gone to the baithak of the respondent-accused at about 5.30 p.m. Where they found the dead-body of the deceased, if so, the intervening time elapsed between death and post-mortem examination must not exceed 15 to 18 hours. The elapsed time of 30 hours, as mentioned by Dr. Zafar Mahmood, PW- 9 in his testimony sufficiently unfurls the mendacity and maliciousness of the prosecution witnesses who under a conspiracy have joined hands to depose falsely against the respondent-accused to wreck him. Neither the motive nor the medical evidence substantiates or corroborates the so- called circumstantial evidence rendered by PW-4, PW-5 and PW-8. The net picture emerging from the overall view of the prosecution case is that the complainant and his cowitnesses found the dead-body of Nasir Mahmood deceased and thereafter they cooked up a story by joining hands with each other so as. To cause ruination to the respondent- accused. Each and every word of thpir evidence is incredible arrd does not appeal to reason and logic. They at no stage of the case have been able to furnish creditworthy and reliable evidence to prove the prosecution case.
22. We have considered the foregoing points that the learned Trial Judge has evaluated the evidence brought on record in accordance with well-known principles of dispensation of criminal justice by advancing forceful and sound reasons for disbelieving the evidence of motive and the circumstantial evidence presented by PW-4, PW-5 andPW-6 which has been badly breached by the medical evidence. The conduct of the PWs has been highly doubtful on each and every stage of the prosecution case. It is now welf-settled that Courts should be slow to interfere with the judgment of acquittal unless it is felt that the judgment of the Trial Court was perverse, capricious and completely illegal besides, that on perusal of the evidence no other conclusion could be made except that the accused was guilty or there had been complete misreading or non-reading of evidence leading to miscarriage of justice. Even of another view, qua the guilt of the accused, was possible while scanning the prosecution evidence, it cannot replace the view, going in favour of the accused, except for that no other view was possible them the one, establishing the guilt of the accused.
23. The recovery of weapon of offence razor P-1 and the reports of Chemical Examiner and that of the Serologist are immaterial and consequential to the prosecution case for the material prosecution evidence has been found by us to be devoid of any element of believabiljty, spontaneity and truthfulness. The Investigating Officer, Aqal Dad, S.l. PW-12 visited the place of occurrence on 14.1.1999, stayed there for a while, inspected the spot but could not find any razor lying there. The place of occurrence, the baithak was thoroughly inspected by the I.O. And he made mention of salient features of the place of occurrence in his inspection note which indicates that he had conducted extensive examination of the spot. Had, the razor P-1 been there in the said baithak, it would have been taken into possession by the I.O., the same day. The recovery of the razor on 21.1.1999 vide recovery memo. Exh.PA being doubtful is rejected and brushed aside.
24. For what has been discussed above, we are of the considered opinion that no case for interference by this Court is made out, therefore, this appeal (Crl. Appeal No. 506 of 2000) filed by Zahoor Akhtar against the acquittal of present respondent is dismissed.