' SHAHID BILAL HASSAN, J.---This appeal is directed against the judgment dated 10-1-2011 passed by the learned Sessions Judge, Bahawalpur whereby respondents Nos.1 and 2 were acquitted in case F.I.R. No.40 of 2009 dated 15-2-2009 registered under section 302 read with section 109 of The Pakistan Penal Code, 1860 at Police Station Samma Satta, District Bahawalpur.
2. According to the prosecution story as narrated by the appellant/complainant/Mst. Noor Khatoon wife of Muhammad Iqbal was earlier married to one Gul Muhammad and out of the said wedlock Muhammad Sajjad (deceased) and Nasreen were born, and after the death of Gul Muhammad, she contracted second marriage with one Muhammad Iqbal and both son and daughter named above started living with the complainant. Muhammad Sajjad son of the complainant contracted marriage with one Mst. Razia (accused) and out of the said wedlock three daughters were born. It is important to mention here that said Razia had a daughter from her previous husband who also resided with her mother and Muhammad Sajjad (deceased). About 8-months prior to the alleged occurrence Muhammad Sajjad shifted his residence from mauza Malikpur to Basti Raman where Khalil Ahmad accused used to visit him. One day before the occurrence whed the complainant and her husband namely Muhammad Iqbal came to see Muhammad Sajjad (deceased) where Khalil Ahmad (accused) was present for the last 2/3-days. On 15-2-2009 after about Fajr prayer the complainant, Muhammad Iqbal husband of the complainant and one Falak Sher who had come to see the complainant were sitting in the courtyard of the house when Muhammad Sajjad (deceased) was sleeping in his room. Khalil Ahmad (accused) was also in the said room. Mst. Razia went out of the room when the complainant was about to enter and she raised hue and cry on seeing Khalil Ahmad armed with pistol. In response to the said hue and cry Falak Sher and Muhammad Iqbal also approached near the door witnessing Khalil Ahmad firing on the person of Muhammad Sajjad with an intention to kill him and managed to escape by extending threats of dire consequences. Muhammad Sajjad (deceased) succumbed to the injuries on the spot. It is also the prosecution story as alleged by the complainant that Khalil Ahmad accused had illicit relation with Mst. Razia Bibi co-accused, which fact was known to Muhammad Sajjad (deceased) who disproved the said relation and it was on account of said grudge that Khalil Ahmad committed murder of the son of the complainant on the instigation/abetment of Mst. Razia Bibi co-accused.
3. Both Khalil Ahmad and Mst. Razia Bibi were arrested in this case and after completion of investigation by the police challan of this case was sent to the court where charge was framed against both the accused on 22-4-2009 who denied the same and claimed trial. In order to prove its case the prosecution produced as many as 14-witnesses Muhammad Sarfraz firstly appeared as P.W.12 and again appeared as P. W.14. In response to the prosecution evidence both the accused/respondents Nos. 1 and 2 got their statements recorded without oath under section 342, Cr.P.C., while denying all the allegations levelled against them in the prosecution story and sought their innocence.
4. The learned trial Court seized of the matter, after the recording of prosecution evidence and recording of statements of respondents Nos.1 and 2 and after apprising the evidence available on record pronounced the impugned judgment on 10-1-2011 by acquitting both respondents Nos.1 and 2 of the charges levelled against them while holding that the prosecution has miserably failed to establish its case against the accused beyond reasonable doubt, therefore, both the accused Khalil Ahmad and Mst. Razia Bibi were acquitted of the offences under sections 302 and 109 of the P.P.C. By extending benefit of doubt to them.
5. The learned counsel for the appellant has inter alia contended that both respondents Nos.1 and 2/accused have been acquitted by the learned trial Court on whimsical grounds, as the evidence led by the appellant/complainant during the trial was not properly appreciated by the learned trial Court. Adds that the prosecution fully established the guilt of respondents Nos.1 and 2 with regard to the commission of sections 302/109 of P.P.C. Beyond reasonable shadow of doubt but the learned trial Court while passing of the impugned judgment misread and misinterpreted the evidence available on the record which act on the part of the learned trial Court has prejudiced the appellant. Further adds the impugned judgment is against law and facts of the case. The learned trial Court did not consider the testimony of the appellant/complainant who was an eye-witness along with the testimony of P.W.6 (Falak Sher) who was also an eyewitness as both the said P. Ws: proved beyond reasonable doubt the case of the prosecution. Even the motive as alleged by the complainant stood established and proved by P.Ws.9 and 10 namely Arshad and Muhammad Ajmal sons of Pehlwan, therefore, the impugned judgment cannot hold field in light of the said facts and circumstances of the case.
6. We have heard the learned counsel for the appellant and the learned DPG and perused the record.
7. Prosecution version as contained in the Crime Report Exh.PF/1 based upon the complaint Exh.PF submitted by Mst. Noor Khatoon complainant P.W.5 that she along with her husband was present in the house of her son namely Muhammad Sajjad (deceased) where he used to reside along with his children and wife Mst. Razia Bibi (accused). On 15-2-2009 after Fajr prayer complainant along with her husband Muhammad Iqbal (given up P.W.) and Falak Sher P.W.6 was present in the house and were making gossips when Mst. Razia Bibi (accused) came out of the room wherein she along with her husband Muhammad Sajjad (deceased) and Khalil Ahmad (accused) slept in the last night. In the meanwhile complainant entered the room where she saw Khalil Ahmad (accused) armed with pistol. Her hue and cry attracted other P. Ws. But Khalil Ahmad (accused) made a straight fire on the head of Muhammad Sajjad (deceased) culminating into his death and fled away from the spot.
8. Mst. Noor Khatoon, during cross-examination, disclosed that they including Khalil Ahmad (accused) took their meals in the night. Khalil Ahmad (accused), her son Muhammad Sajjad (deceased) and Mst. Razia Bibi (accused) along with their children slept in one room of the house whereas the complainant along with her husband slept in another room.
9. According to prosecution story, the motive behind the occurrence is stated to be the 'illicit liaison inter se Khalil Ahrnad and Mst. Razia Bibi (accused). This fact was in the knowledge of deceased and he used to ask his wife (Mst. Razia Bibi) not to contact Khalil Ahmad. When the position was as such it does not appeal to a prudent mind that how Khalil Ahmad (accused) was present in the house when the occurrence took place, in presence of the husband and in-laws of his co-accused Mst. Razia Bibi. More than this, admittedly all the above persons took the meal in the preceding night of the occurrence together after this they all slept in the same room.
10. Suffice it to observe that all the alleged eye-witnesses of the occurrence are chance witnesses because complainant and her husband used to live in Kot Dadu Ghallu, Tehsil Bahawalpur which is at a distance of about 11 kilometers from Basti Raman, the place of occurrence. Record further reveals that both the complainant and her husband were not happy with the deceased and his wife Mst. Razia Bibi (accused) as they had contracted marriage without their blessings. Mst. Razia Bibi (accused) was the real niece (Bhanjee) of Muhammad Iqbal husband of the complainant.
Because the deceased and Mst. Razia Bibi contracted marriage against the wishes of their elders so visitation of complainant with her husband does not fit in the screen of the prosecution case.
Moreover, the eye-witnesses were the residents of far flung areas from the place of occurrence and they had not shown any specific purpose or reasoning for their presence at the spot at the time of occurrence with the deceased. Admittedly the accused and deceased slept in the same room after taking meal but no untoward incident took place throughout the night despite the fact that the accused had ample opportunity to fulfil his alleged design of murder but astonishingly he waited for the morning when the complainant along with other P. Ws. Were present outside the room wherein the occurrence took place. This fact also speaks volume about the authenticity of the occurrence because a prudent mind person does not leave any evidence making him culprit.
11. The postmortem examination was conducted at 2-30 p.m. On 15-2-2009 whereas the occurrence took place after Fajr prayer on the same day and the intervening period was sufficient to concoct a story and to wait for the relatives of the deceased in order to cite them as eye- witnesses in the case. At the cost of repetition the presence of the eye-witnesses at the place of occurrence at the time of occurrence is dubious.
12. So far as the motive is concerned it is alleged in the Crime Report that Khalil Ahmad and Mst.
Razia Bibi (accused) had illicit relations and the deceased used to forbid his wife from having any link with his paramour. Though it was not the requirement of law that the prosecution must show that the accused had a motive to commit the occurrence but where a particular motive was setup, the prosecution was under obligation to prove the same. But in the instant case the prosecution has miserably failed to prove the motive part of the occurrence by producing plausible, cogent, trustworthy and reliable evidence, as according to Mst. Noor Khatoon (P.W.5), her son Muhammad Sajjad (deceased) had told her about the illicit liaison between Mst. Razia Bibi and Khalil Ahmad (deceased), meaning thereby her evidence on this fact is based on hearsay which is a weak type of evidence. Falak Sher (P.W.6) has also deposed in line with the deposition of P.W.S.
13. As far as the story in respect of hatching conspiracy of murder by both the accused is concerned, in this respect the prosecution .Has brought in the witness box Arshad (P.W.9) and Muhammad Ajmal (P.W.10). According to their deposition a few days prior to the present occurrence, they visited the house of Sajjad (deceased) in order to see him where Khalil Ahmad accused was already present. After sometime, they were coming out of the house when they heard whispering from outside the door of the house. Mst. Razia Bibi accused was saying Khalil Ahmad that Muhammad Sajjad used to torture her and also creates hurdle in their relations, therefore, he should be removed from their way then they would contract marriage. They further added that this fact was told to the deceased by them. If at all the statements given by these P. Ws. Are presumed to be correct, the same boomerangs to the prosecution case, as if the deceased was in the knowledge about the conspiracy of his murder, he would not have allowed Khalil Ahmad accused to enter in his house in the preceding night of the occurrence, rather it is depicted from the prosecution story that Khalil Ahmad took meal with family members of the deceased as their friend, which means both the witnesses of conspiracy have been introduced only to create evidence and to connect the accused with the commission of offence.
14. Moreover, the daughters of deceased Muhammad Sajjad have not been presented before the Investigating Officer or interrogated during the investigation despite the fact that as per prosecution story, they were present in the room at the time of occurrence and were natural witnesses which creates doubt about the prosecution case. Giving up of Muhammad Iqbal husband of the complainant, being an alleged eye-witness also creates doubts about the prosecution stance, as it would be presumed that best evidence' has been withheld probably with a fear that he might not support the prosecution case, rather would bring true facts.
15. Dr. Rana Iftikhar Ahmad (P.W.1) has admitted that the bullet was visible in the dead body according to the X-Rays but no plausible explanation has been put forward by the doctor that why the same was not recovered from the dead body rather he explained that due to penetration into bone it was not necessary to recover the same, meaning thereby the report of postmortem examination is defective and corroboratory evidence has been destroyed.
16. It is now settled law that even evidence of interested witnesses cannot be out-rightly discarded unless it is proved that the witness has involved the accused for some ulterior motive. But in the case in hand, the prosecution witnesses regarding the occurrence are not only inimical towards the accused due to their marriage but their presence at the scene of occurrence is also ambiguous as discussed above.
17. Mere recovery of weapon of offence is not sufficient to connect the accused with the offence alleged against him. Even otherwise, the inquest report is silent about the empty cartridge taken into possession by the Investigating Officer vide memo. Exh.PH dated 15-2-2009. The same was also not sent to any quarter for the report whether the same was fired with the pistol allegedly got recovered from the accused. The slackness on the part of the I.O., can also be visualized from the fact that he got prepared the scaled site-plan of the place of occurrence Exh.PM and Exh.PM/1 from Zafar Hussain Patwari/P.W.8 on 20-7-2009 i.e., after more than five months of the occurrence.
Moreover, the doctor remained fail to recover the bullet available in the dead body for the reason best known to him which is also injurious to the prosecution case, as no matching could be got conducted from the Forensic Expert.
18. Compendium of the above discussion is that the prosecution case is stuffed with many discrepancies going to the roots of the case. Even otherwise, a slightest doubt would favour the accused as he is favourite child of law. Admittedly the ordinary scope of appeal against acquittal of the accused is considerably narrow and limited on the examination of the judgment of acquittal as a whole, credence should be accorded to the findings of the learned trial Court whereby the accused had been exonerated from the charge of commission of the crime. It is well settled law that once if judgment of acquittal is recorded, the accused earns double presumption of innocence, therefore, such judgment cannot be interfered with unless and until strong and exceptional circumstances exist, warranting interference by this court but the instance is lacking of any such ground. In this regard, reference may be made to the case of "IFTIKHAR HUSSAIN and others v. THE STATE" (2004 SCM R 1185), wherein the Hon'ble apex Court was pleased to observe at page 1194 as under:- "13. It is well settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C., are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) that the appellate Court seized with the acquittal appeal under section 417, Cr.P.C., is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence illegally...."
' In this regard further reliance may be placed on the case of "HAJI AMANULLAH v. MUNIR AHMAD and others" (2010 SCM R 222), wherein it has been held at page 226 by the Hon'ble Supreme Court of Pakistan as under:-- "4 It is well settled by now that in an appeal "the Court would not interfere with acquittal merely because reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusion 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 conclusive 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."
19. For what has been discussed above, we find no misreading, non-reading and non-appraisal of evidence in true perspective by the learned trial Court. Therefore, we are not inclined to interfere in the impugned judgment passed by the learned trial Court therefore this appeal having no force is dismissed.