' SHAHID HAMEED DAR, J.---Nazir Ahmad-complainant/ appellant by filing this appeal under section 417(2-A), Cr.P.C. Has challenged judgment dated 27-10-2003 passed by the learned Additional Sessions Judge, Pakpattan Sharif, whereby respondents Nos..2 to 5, Farrukh, Saeed, Muhammad Nawaz and Muhammad Din were acquitted of all the charges, on extension of benefit of doubt, during trial, in respect of case-F.I.R. No,337/2002, dated 19-7-2002, for offences under sections 302, 109, 337-F(iv), 337-A(ii), 337-F(iii), 337-F(i), 337-L(2) read with section 34, P.P.C., registered at Police Station Saddar Arifwala, District Pakpattan Sharif.
2. Precisely the facts giving rise to this appeal are that Nazir Ahmad-complainant (P.W.8) got the aforesaid F.I.R.-case registered alleging therein that his brothers, Muhammad Rafique (deceased) and Faqir Muhammad (P.W.9), on their turn of water, irrigated the agricultural land on 19-7-2002; Faqir Muhammad (P.W.9) also kept a vigil on the watercourse; it was at about 5-00 a.m., when respondents, Saeed, armed with hatchet, Farrukh, armed with sabbal, Muhammad Nawaz, armed with hockey, and Aamir (juvenile), armed with sabbal, all of a sudden reached there and tortured Muhammad Rafique (deceased); respondent-Saeed gave a hatchet blow from its wrong-side on his head, followed by another four blows, two at his right and left arm and one at his left calf; Aamir (juvenile) shoved his sabbal repeatedly into his left and right calves, whereas respondent-Farrukh authored four injuries by means of his weapon at his right thumb, right calf, posterior left thigh and left calf; respondent-Muhammad Nawaz inflicted eight injuries with his hockey at the back, left elbow, left shoulder, right thumb, right shoulder, right thigh, left calf and right calf of Muhammad Rafique (deceased), due to which he fell onto the ground crying in pain, which attracted Faqir Muhammad (P.W.9), Istadad and Muhammad Anwar P. Ws. (given up) to the spot, who also witnessed the occurrence; the witnesses beseeched the accused, rescued Muhammad Rafique and shifted him to hospital at Arifwala; examining the injuries of Muhammad Rafique, the Medical Officer issued Medico-Legal Report No,506/2002, dated 19-7-2002 and admitted him in hospital as indoor patient. Motive behind the occurrence was that Nazir Ahmad-complainant/appellant (P.W.8) along with his brothers purchased six acres of agricultural land, which caused grudge to the accused; Muhammad Din-respondent extended threats of dire consequences to his brother Muhammad. Sharif Master about twenty days back, if he would not agree to his offer of exchange of land with him; the occurrence was committed by the accused on the abetment of respondent- Muhammad Din.
3. The complainant (P.W.8) being in possession of a copy of medical certificate of the injured, came across Muhammad Ijaz, ASI (P.W.11), at 4.35 p.m. On the same day at Hota Morr, where, the latter recorded his statement (Exh.PK) and dispatched it to the Police Station Saddar Arifwala (Pakpattan Sharif), on the basis of which Nazir Ahmad, MHC (P.W.4) chalked out formal F.I.R. (Exh.PE), at 4-50 p.m. For offences under sections 337-A(ii), 337-F(iii), 337-F(iv), 337-F(i), 337-L(2)/34 P.P.C., the same day, against the above named accused. On deterioration of his condition, Muhammad Rafique was referred to General Hospital, Lahore, for treatment and management of his injuries, where he died at 10-30 p.m, on 3-8-2002, which led to insertion of section 302, P.P.C. In this case by the Investigating Officer, Ajmal Saeed, SI (P.W.12),
4. To prove its case, the prosecution produced twelve witnesses. Nazir Ahmad-complainant (P.W.8) and Faqir Muhammad (P.W.9) tendered ocular account of the occurrence, whereby they claimed to have seen respondents Nos. 2 to 4, Farrukh, Saeed and Muhammad Nawaz along with their co- accused Aamir (juvenile) inflicting injuries on various parts of the body of Muhammad Rafique (deceased), who fell down badly wounded. He was taken to the hospital, but succumbed to the injuries, as noted above, at General Hospital, Lahore, on 3-8-2002. Both the eye-witnesses also deposed about the allegation of conspiracy/ abetment against Muhammad Din (respondent No,5). They stated that twenty days before the occurrence, respondent-Muhammad Din presented an idea of exchange of land to Muhammad Sharif Master and on his denial, the respondent extended threats of dire consequences. Dr. Ghulam Fareed Khichi (P.W.3) medically examined Muhammad Rafique (deceased) produced before him in injured condition, through Medico-Legal Report (Exh.PC). Dr. Ashfaq Hussain (P.W.2) proved the postmortem examination report (Exh.PA).
Rashid Ahmad, constable (P.W.5) And Muhammad Sharif (P.W.7) supported the recovery of crime weapons from the accused-respondents. Muhammad Ijaz, ASI (P.W.11) and. Ajmal Saeed, SI (P.W.12) gave an account of the investigation, conducted by them one after the other. The rest constitutes almost formal evidence .
5. When examined under section 342, Cr.P.C., all the accused denied the allegations against them and also refuted the incriminating evidence produced by the prosecution. They raised the plea of false involvement in this case owing to previous enmity. None of them opted to appear as his own witness under section 340(2), Cr.P.C, nor they adduced the defence evidence. They all claimed that it was an unseen occurrence, having happened in dying-hours of the night and they termed themselves innocent.
6. The learned trial Judge acquitted the respondents-accused of all he charges through the impugned judgment, being aggrieved of which, the complainant/appellant filed the titled appeal with the prayer that the impugned judgment may be annulled and accused-respondents may be convicted/sentenced accordingly.
7. Learned counsel for the appellant has argued that the prosecution successfully proved its case by bringing home the charge of murder against the accused beyond any shadow of doubt; Nazir Ahmad complainant (P.W.8) and Faqir Muhammad (P.W.9) are natural witnesses of the occurrence, who furnished confidence-inspiring statements during trial but badly overlooked by the learned trial Court in a non-serious manner; both the witnesses also supported the allegation of conspiracy against respondent Muhammad Din, but that part of their statements has also been rejected without any cogent reason; the respondents except for Muhammad Din actively participated in the occurrence and caused countless injuries on the body of the deceased; the eye-witnesses are not interested witnesses being not inimical to the accused and their statements do not suffer from material contradictions and major discrepancies.
8. Learned counsel appearing on behalf of the accused-respondents supported the acquittal of the respondents. Learned Deputy Prosecutor. General Punjab, however, supported this appeal but in a lukewarm manner.
9. After hearing learned counsel for the parties and perusing the record with their able assistance, it is observed that considerations for interference in appeal against acquittal and in appeal against conviction are altogether different. A judgment of acquittal cannot be upset sparingly as the accused would enjoy double presumption of innocence, one relating to the pre-judgment stage, that every accused is innocent till proved otherwise and the other one, through a judicial verdict.
Learned counsel for the appellant has failed to pinpoint any illegality, infirmity or improbability in the impugned judgment except for repeating the accusations, like it was so done by the prosecution witnesses in their testimonies. The Hon'ble Supreme Court of Pakistan in Sikandar Hayat's case reported as 1995 SCM R 616 formulated following points, holding them well-settled principles to be kept in view while dealing with an appeal against acquittal:-- "(i) With the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) Unless all the grounds on which the High Court had purposed to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;
(iii) Unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) Unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere, and
(v) The Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid miscarriage of justice and for no other purpose."
' Following the aforesaid principles and yardstick, we have reappraised the evidence and events of this case, which lead us to believe that it is not a case requiring interference with the impugned judgment, which, to our considered view, appears to have been passed strictly in line with the settled principles of law. We do not feel impressed by the argument of learned counsel for the appellant, who, for most of the time, harped on the allegation that the respondents-accused committed the crime and both the witnesses of ocular account remained present at the spot at the relevant time of occurrence. The learned trial Judge disbelieved the ocular version, furnished by Nazir Ahmad-complainant (P.W.8) and Faqir Muhammad (P.W.9) by holding that they were not present at the place of occurrence as it so flowed from their testimonies. We find that Nazir Ahmad (P.W.8) did not claim his presence at the hot-spot at the crucial hour/while rendering an oral statement (Exh.PK), recorded by Muhammad Ijaz, ASI (P.W.11), which categorically shows that the deceased went to his agricultural land in the company of his brother Faqir Muhammad (P.W.9) and none else. Two other names of the eye-witnesses, lstadad and Muhammad Anwar figure in complaint (Exh.PK), who despite being independent persons were not produced by the prosecution at trial and given up as unnecessary. Nazir Ahmadcomplainant with a view to establish his presence massively improved upon his previous statement (Exh.PK), while rendering his testimony, as P.W.8 and he was duly confronted with his earlier recorded statement as per requirement of law, which not only dented the said particular aspect of his version, rather it badly damaged creditworthiness of his statement as a whole. A belated attempt, made by the complainant to mention his presence in complaint (Exh.PK), also ended in smoke as words added therein upset the sequence and meaning of the relevant sentence. The learned trial Court while dealing with this particular skirmish categorically observed in paragraph 19 of the impugned judgment that the words added (2-',At){{URDU WORD }} in line No,18 of complaint (Exh.PK), were not a part of the F.I.R.
(Exh.PE), hence presence of the complainant at the relevant time of incident was not .Established and for this reason his improved version, qua witnessing the occurrence was excluded from consideration.
10. The prosecution case is left only with the statement of Faqir Muhammad (P.W.9), who too, in his 'anxiety to establish presence of Nazir Ahmad-complainant (P.W.8) committed the same mistake, thereby grievously injuring the veracity of his own evidence. His testimony reveals that his attention was also drawn to various innovations, he made as regards his previous statement (Exh.DD) and he failed to furnish any plausible explanation in respect thereto. He mentioned about an amazing factor that he did not accompany his brother and complainant Nazir Ahmad, when he took Muhammad Rafique (deceased) to the police station and onwards to the hospital at Arifwala.
Being real brother of the deceased and that of the complainant, it was a startling and unbelievable disposition which badly reflected on, what he said in the Court.
11. Keeping in view the massive delay in medical examination of Muhammad Rafique (deceased) by Dr. Ghulam Farid Khichi (P.W.3), which is well over three hours and in lodgment of formal F.I.R.
(Exh.PE), which is more than eleven hours from the time of occurrence, no other view can be possibly made that none of the eyewitnesses had witnessed the occurrence. The medical evidence, presented by Dr. Ashfaq Hussain (P.W.2) and Dr. Ghulam Farid Khichi (P.W.3) does little good to the prosecution's case. The recoveries of weapons have been rightly disbelieved by the learned trial Court as none of it was stained with blood. The time of occurrence, 5-00 a.m., may be much earlier than the one, claimed by unreliable and rejected eye-witnesses, in C their evidence.
All of these factors were lawfully and consciously considered by the learned trial Court before formulating an opinion of innocence in favour of the accused, which, to our considered view, is not open to any exception. The reasons recorded by the learned trial Court for the acquittal of the respondents are in line with the evidence on record and circumstances mentioned therein, as it was unsafe to act upon the evidence of the two eye-witnesses. The infirmities and flaws pointed out in the impugned judgment assumed importance, when taken into consideration, in the backdrop of prevalent circumstances, which give rise to only one irresistible conclusion that innocence of the respondents was the only result which could be inferred and arrived at by the learned trial Court. The principles for setting aside such a judgment have been ' laid down in the case of Noora and another V. The State (PLD. 1973 SC 469) in the following words:- "As an ultimate Court, we mist give due weight and consideration to the opinion's of the Courts below, and normally we should not interfere with their findings where we ate satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the. Court to come to its own independent finding upon ,a re-examination of the evidence untrammeled by the opinions of the Courts below."
We find no defect in the reasoning, recorded by the learned trial Court, as it appears to have acted strictly in accordance with law and principles governing the safe administration of criminal justice.
The reasons, whereon acquittal' of the respondents is based on, are neither artificial nor ridiculous.
12. The upshot of the above discussion is that there exists no such compelling reason, which may necessitate interfering with the well reasoned judgment of acquittal. Therefore, we dismiss this appeal. Respondents Nos.2 to 5, namely, Farrukh, Saeed, Muhammad Nawaz and Muhammad Din are present on bail. They stand discharged of their bail bonds.