' Muhammad Arshad, appellant has preferred this appeal against the judgment dated 2-5-2011 whereby respondents Nos.1 to 4, namely, Allah Ditta, Muhammad Yasin, Ghulam Rasool alias Baghi and Naveed, were acquitted by the learned Additional Sessions Judge, Pattoki, District Kasur, who being nominated in case F.I.R. No.165 dated 1-5-2010, Police Station Saddar Phoolnagar, District Kasur, were tried by the learned trial Court and ultimately they were acquitted of the charge.
2. Adumbrated in brief, the incident took place in the midnight of 30-4-2010 and 1-5-2010 in village Lakhan-Kay, Police Station Saddar Phoolnagar, District Kasur. It was alleged in the F.I.R. That the informant Muhammad Arshad himself (P.W.11) along with his brother, namely, Muhammad Ashraf (P.W.12) and one Vakil Ahmad after completion of harvesting the wheat crops from the thrasher owned by Muhammad Aslam son of Nazar Hussain, came back to their havaili of animals and when they reached at the gate of their havaili at 1-00 a.m., door of the havaili was bolted from inside, they heard a cry from inside on which they witnessed over the wall of the havaili that Muhammad Yasin, respondent No.1 had caught hold of his brother Rafaqat, deceased from his legs; Ghulam Rasool, respondent No.3 had caught hold of two arms of said Rafaqat and Allah Ditta, respondent No.1 was cutting throat of the deceased Rafaqat along with an unknown accused whereas Naveed, respondent No.4 along with an unknown accused, duly armed with firearm was standing there. They witnessed the occurrence in the light of electric bulb as well as in the moon light and identified the culprits. The motive behind the occurrence was that 5/6 years ago, Mst.
Robina sister of Muhammad Yaseen and Ghulam Rasool (respondents Nos.2 and 3) who was a lady of easy virtue had left the house at night and the people told that Muhammad Ashraf P.W.12 abducted her. When said Mst. Robina returned back to her house, both respondents Nos.2 and 3 murdered her by giving electric shock to her. Apart from this, a dispute also arose between Allah Ditta, respondent No.1 and the complainant party in which Rafaqat had caused injuries at the head of Allah Ditta, respondent No. 1, due to which respondents Nos.1 to 4 in furtherance of their common object had committed the murder of Rafaqat Ali, deceased. They informed the police about occurrence who reached at the spot and statement of Muhammad Arshad (P.W.11) was recorded by Shaukat Ali, SI (since proclaimed offender) and sent the same through Shamshad Ahmad, constable (given up) to the police station where F.I.R. Was lodged by Muhammad Rafique, ASI (P.W.4) and case was registered. The investigation was taken up by the Investigating Officer Shaukat Ali who reached at the spot. He prepared inquest report and other papers in the presence of witnesses and dispatched the dead body for post mortem to the mortuary under the escort of Nazir Ahmad, constable (P.W.6). It is pertinent to mention here that during trial of the case, Muhammad Aslam ASI/Moharar (P.W.12) produced secondary evidence regarding Shaukat Ali, SI as he was dismissed from service and was absconding in case F.I.R. No.117/2010 registered at Police Station City Phoolnagar.
3. Post mortem over the dead body of the deceased was conducted by Dr. Abdul Hameed, SMO, THQ Hospital, Pattoki (P.W.3) on 1-5-2010 at 2-30 p.m. The deceased was aged about 17/18 years who died about 12 to 15 hours prior to the post mortem. The following ante-mortem injuries were found on his person:-- "An incised wound 12 x 3.5 cm on front of neck at upper part exposing cervical vertebra. The injury was 6 cm from right ear on right side and 7 cm from left ear. "
4. The learned counsel for the appellant contends that the findings recorded by the learned trial court were perverse and based on insignificant aspects; that the testimony of the eye-witnesses fully established the guilt of the accused persons and ocular testimony of the witnesses is confidence inspiring and as such the learned trial court has misconstrued the facts and have acquitted respondents Nos.1 to 4 on extraneous ground. Adds that the impugned judgment dated 2-5-2011 is based on misreading and non-reading of evidence. Further argued that the impugned judgment is based on surmises and conjectures, resulted into grave miscarriage of justice, hence the same is liable to be set aside and respondents Nos.1 to 4 be convicted.
5. We have heard the arguments of the learned counsel for the appellant and have minutely perused the available record annexed with this appeal.
6. The submission from the side of the appellant is that the findings recorded by the learned trial Court were perverse, based on insignificant aspects, the testimony of the eye-witnesses fully established the guilt of the accused persons and ocular testimony of the witnesses is confidence inspiring, which is supported by the recoveries of Chhuri and pistol .30-bore (P6-1) which are sufficient to prove the prosecution case.
7. It is well settled principle of law that in an appeal against acquittal the appellate court cannot interfere in the judgment unless it finds that the view of the court qua acquittal of the accused is unreasonable and perverse. We after going through the evidence on record came to the conclusion that there are certain sterling features which justify acquittal.
8. Firstly there is apparent conflict between medical evidence and ocular testimony. Dr. Abdul Hameed, P.W.3 deposed in the cross-examination which reads as under:-- "It is correct that I did not find any other injury, mark of violence or struggle on the body of Rafaqat Ali the victim. It is correct that insized cut on thyroid cartilage was of regular nature having no irregular margins. It is correct that both the blood vessels were also having a straight cut on both sides. If a person is going to be slaughtered, and he struggled against him, the margins of the cut wound may be irregular."
' Whereas Muhammad Arshad, P.W.11 deposed that:- "At the time of occurrence, my brother, the victim had been resisting, the attack of the culprits, on the feet of the said victim there were signs of the struggle, at the time of occurrence against the culprits, however, there was no such sign at his arms."
9. Thus there is apparent conflict between the medical and ocular evidence. Similarly, wherever conflict between ocular and medical evidence was found, the Hon'ble Supreme Court of Pakistan acquitted the accused by extending the benefit of doubt to them. Reliance in this respect is placed on the case law reported in Ali Sher and others v. The State (2008 SCM R 707) and Barkat Ali v.
Muhammad Asif and others (2007 SCM R 1812). The learned trial Court has elaborately discussed this aspect of the matter and we find ourselves in agreement with him, therefore, in view of the contradictions in the ocular testimony and medical evidence makes presence of the eye- witnesses at the time of incident doubtful. Conduct of the eye-witnesses was also examined by the learned trial court and rightly reached to the conclusion that their conduct at the time of occurrence was unnatural which is sufficient to suggest the occurrence unwitnessed.
10. Aspect of motive was dealt with by learned the trial court in para (11) of the judgment and held that motive could not be established. It was rightly opined by the learned trial court that bald allegation by the witnesses who are real brothers of deceased would not be sufficient to prove elopement of Mst. Robina and thereafter murder by respondents Nos.2 and 3 by giving her electric shocks. It also cannot be disputed that no evidence was led to prove second aspect of motive.
11. The complainant had not produced Muhammad Aslam son of Nazar Hussain, owner of the thrasher in order to establish the presence of the witnesses at relevant time at the place of occurrence.
12. Recovery of alleged Chhuri is of no importance, as the same was not stained with human blood.
It is not believable that Allah Ditta, respondent No.1 will go to the Havaili of co-accused and will conceal it at a heap of chaff. From same place co-accused Naveed respondent No.4 also got recovered pistol and handed over to the Investigating Officer. The recovery of pistol is not of any significance as same was not used in the occurrence.
13. On the above analysis, we find that the view taken by the learned trial court is just and quite reasonable, not suffering from any perversity. It is not a case of misreading of evidence. No doubt, Rafaqat was murdered but the court is followed by the evidence on the record and the accused respondents could not be convicted on the basis of unreliable and untrustworthy evidence of the eye-witnesses running counter to medical evidence. The prosecution has badly failed to prove its case against the accused-respondents Nos.1 to 4 beyond any shadow B of doubt and the trial Court has rightly appreciated the evidence brought on record, therefore, we are not inclined to interfere in the judgment rendered by the learned trial court which is not perverse. It has been observed by the Hon'ble Supreme Court of Pakistan that in such circumstances, acquittal earned by an accused should not be disturbed and as such the learned trial court has not committed any illegality or material irregularity in exercise of its jurisdiction vested in it. Reliance is placed on the case reported as Jahangir v. Amanullah and others (2010 SCM R 491).
14. Consequently, this Criminal Appeal is devoid of any force and the same is hereby dismissed.