' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant criminal appeal filed under section 417, Cr.P.C., Talib Hussain appellant has assailed the vires of impugned judgment dated 23-7-2001 by virtue of which accused/respondents Azmat Ali and Muhammad Sarwar, both sons of Asghar Ali, Balouch by caste and residents of Kot Asghar Ali, Landianwala, Police Station Kanganpur, District Kasur, along with Javed, Khalil Ahmed, Safdar Hussain Khan and Mahboob Ahmed, were acquitted of the charge by learned Additional Sessions Judge, Chunian in complaint filed under sections 302, 148, 149, P.P.C., arising out of case F.I.R. No.115/99, dated 6-4-1999, offence under sections 302, 148, 149, P.P.C., registered at Police Station Kanganpur.
2. Facts of the case succinctly required for determination of the lis in hand are that Talib Hussain son of Faiz Ahmed, caste Balouch, lodged F.I.R. (Exh.PA/1) while making statement (Exh.PA) to the effect that he is resident of Kot Dr. Muhammad Hussain Bashmoola Landianwala, District Kasur and involved in Zamindara and had three sons. On 3-4-1999, the marriage ceremony of Mukhtar Ahmed son of the complainant was scheduled and in this regard several guests had arrived at his house. At 10-00 a.m. Muhammad Iqbal, Mukhtar Ahmed went towards nearby fields for cutting fodder for the cattle-head. In the meanwhile the complainant along with Khursheed Ahmed son of Sher Muhammad, caste Balouch, resident of 181/7-R, Fort Abbas, District Bahwalnagar, who had arrived there in order to attend marriage ceremony, went towards the fields. After cutting fodder Muhammad Iqbal after taking fodder went towards the house, whereas, Mukhtar Ahmed in order to ease himself went towards the nearby sugarcane crop. He had just went inside the sugarcane crop when suddenly a. Noise rose due to which the complainant along with Khursheed Ahmed and Muhammad Iqbal, who had yet not reached the house after throwing away fodder attracted towards watercourse and saw that (1) Azmat rAli armed with gun .12-bore, (2) Muhammad Sarwar armed with gun .12-bore both sons of Asghar Ali, caste. Balouch, residents of Motor Asghar Ali Bashmoola Landianwala (3) Javed son of Sadiq, caste Dogar armed with gun .12-bore and (4)
Khaleel Ahmed son of Rehmat Ali, caste Dogar, armed with gun .12-bore, resident of Kot Kamal Din Bashmoola Atari Aki-key along with one unknown person, who had ambushed in the sugarcane' crop were standing in front of Mukhtar. In their view Azmat Ali made a straight fire shot upon Mukhtar Ahmed, which landed at his neck, who fell down and in this position the second fire, was made by Mukhtar Ahmed, which landed on his back, whereas, Javed, Khalil Ahmed and one unknown person raised lalkaras and made aerial firing and extended threats of dire consequences.
Due to fear the complainant and others did not come forward.
' The motive behind the occurrence as contained in the crime report was that Azmat Ali and Muhammad Sarwar, bhatejas of the complainant had quarrelled with Mukhtar Ahmed some days prior to the occurrence, who had stated that they will commit his murder before his marriage. The complainant side tried best, however, the matter could not be patched up and due to this reason Azmat, Sarwar, Javed, Khalil Ahmed along with one unknown person on account of previous enmity had committed the murder of son of the complainant.
3. After registration of case, the investigation came up before Muhammad Siddique, S.I. (P.W.5) and according 'to his investigation all the four accused named in the crime report were found innocent and according to the Investigating Officer actual "culprits were Mahboob and Safdar Hussain Khan.
The Investigating Officer had also prepared discharge report to the extent of respondents and two other co-accused named in the crime report, however, the, learned Magistrate did 'not agree with the discharge report. Thereafter, the investigation came up before, Additional Superintendent of Police, Kasur, who too endorsed the findings of the Investigating Officer. Subsequently on the application of the complainant the investigation was carried out by. a DSP of Range Crime but here too, the Conclusion drawn by the first Investigating Officer was supplemented. Being dissatisfied with the investigation, the complainant filed complaint; wherein respondents along with other co- accused were summoned.
4. Prosecution in order to advance its case produced as many as five prosecution witnesses, whereas, the accused also produced two defence witnesses'. The learned trial Court after affording an opportunity of hearing to both the parties in terms of judgment dated 23-7-2001 acquitted the accused-respondents from the charge, which has been challenged by means of instant Criminal Appeal.
5. Learned counsel appearing on behalf of the appellant contended that although scope of appeal against acquittal is very narrow, however, if the circumstances so permit, the acquittal judgment/order can be interfered. Learned counsel next submitted that the learned trial Court while acquitting the accused/respondents not only *committed grave misreading and non- reading of evidence available on record rather the acquittal has been recorded in sheer violation to the settled principles of apex Court of the country. It was also argued that both the complainant (P.W.1), as well as, Muhammad Iqbal (P.W.2) fully supported the prosecution case and their statements could not be shattered during the course of cross-examination. Learned counsel agitated that the medical evidence is in line with the occular account. He added that the complainant/appellant being real father of the deceased had no to falsely substitute the respondents in.Place of real culprits. It was urged that the police in connivance with the accused carried out faulty investigation, therefore, learned trial Court fell in error while endorsing the findings of the police. Learned counsel while pointing out to certain cross examination upon the prosecution witnesses vehemently contended that no such suggestion was put to the prosecution witnesses regarding previous enmity, which could be made basis for false implication/substitution.
Regarding motive learned counsel argued that the same was fully proved through material prosecution witnesses and the learned trial Court while disbelieving the same committed grave miscarriage of justice. Learned counsel further contended that the prosecution led legal, cogent and confidence-inspiring evidence, however, the learned trial Court did not advert to it and perusal of the impugned judgment reveals that not a single word has been said in rebuttal of the prosecution evidence. Learned counsel further argued that in the circumstances, interference by this Court in the acquittal judgment is called essential for safe dispensation of criminal justice.
6. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the respondents opposed the contentions raised by learned counsel for the appellant with the submissions that in three successive investigations carried out by local police, SP and Range Crime, the respondents were found innocent. Learned counsel for the respondents vehemently agitated that even arbitrators were appointed by the S.P. On the recommendations of both sides, who also falsified the accusations levelled in the crime report against the respondents. It was argued that during the course of investigation it came into limelight that Mahboob and Safdar Hussain were actual culprits, however, the complainant while joining hands with the accused, made statements in their favour and ultimately their pre-arrest bails were confirmed. It was argued that during the course of investigation nothing was recovered from the respondents.
Learned Deputy Prosecutor-General stated that the medical evidence is in contradiction with the occular account. Learned counsel vehemently contended that the same, thus, was rightly disbelieved by the learned trial Court. It was next argued that there is no direct or circumstantial evidence available on record to connect the accused/respondents with the commission of offence. The learned trial Court while evaluating the prosecution evidence correctly appreciated the dents in the prosecution evidence, thus, has rightly extended the premium of innocence in favour of the respondents. It was also agued that the testimony of the prosecution witnesses is shaky based upon conjectures and surmises. Even otherwise, they are interested, as well as, chance witnesses and their deposition is not confidence-inspiring. Learned counsel for the respondents urged that out of four nominated accused persons, two have not only been acquitted of the charge rather special leave to appeal against their acquittal was also declined by this Court and such findings have attained finality, therefore, the prosecution case being of no evidence learned trial court was well-justified in acquitting the respondents.
' Learned Deputy Prosecutor General stated that the medical evidence is in contradiction with the occular account. Learned counsel vehemently contended that the same, thus, was rightly disbelieved by the learned trial court. It was next argued that there is no direct or circumstantial evidence available on record to connect the accused/ respondents with the commission of offence. The learned trial court while evaluating the prosecution evidence correctly appreciated the dents in the prosecution evidence, thus, has rightly extended the premium of innocence in favour of the respondents. It was also agued that the testimony of the prosecution witnesses is shaky based upon conjectures and surmises. Even otherwise, they are interested, as well as, chance witnesses and their deposition is not confidence inspiring. Learned counsel for the respondents urged that out of four nominated accused persons, two have not only been acquitted of the charge rather special leave to appeal against their acquittal was also declined by this Court and such findings have attained finality, therefore, the prosecution case being of no evidence learned trial court was well justified in acquitting the respondents.
7. We have considered the arguments advanced by learned counsel for the appellant, learned counsel representing the respondents, as well as, learned Deputy Prosecutor-General and gone through the record available on file.
8. Perusal of crime report lodged on the statement of the complainant, as well as, contents of the complaint filed by him reveals that as many as four accused persons were named with the role of making firing with their respective firearms out of whom Azmat Ali/respondent No.1 was ascribed the role of making fire shot at neck of the deceased, whereas, fire attributed to Muhammad Sarwar/respondent No.2, landed at wrist of the deceased. As per prosecution version Talib Hussain complainant, as well as, Muhammad Iqbal (P.W.2) and Khursheed Ahmed (given up) had witnessed the respondents while making firing. While appearing in the witness during the course of trial both Talib Hussain complainant (P.W.1) and Muhammad Iqbal (P.W.2) in their cross- examination had deposed that both the respondents made fire shots from a distance of 3 and 1 feet each. This aspect is also supplemented in the site plan (Exh.PF and Exh.PF/1); wherein inter se distance between the deceased and the assailants/respondents is mentioned as half karam. If this portion of the prosecution evidence is scrutinized with care and caution, the same squarely contradicts the medical evidence especially when it is the prosecution case that both the respondents before this Court had fired from guns .12-bore at the relevant time. Moreover, from careful scrutiny of the medical evidence it is spelled out that no blackening or cheering was present at the seat of injuries, which aspect further contradicts the occular account creating serious dents in the prosecution version going to its roots. Reliance in this regard is placed on the ratio decideni of august Supreme Court of Pakistan in the case of Muhammad Tufail v. The State PLD 2002 SC 786) wherein it was held as under:- "Occular evidence would be reliable when there are neither material discrepancies nor contradictions between occular and medical evidence."
Similar view was further affirmed by august Supreme Court of Pakistan in the reported case MUHAMMAD SAFDAR THE STATE (PLD 2002 SC 781).
9. Moreover, during the course of investigation it came into limelight that none of respondents and other accused named in the crime report had committed the occurrence rather it were Mahboob and Safdar Hussain, who were real culprits. This Court is conscious of the fact that the appellant is father of the deceased; therefore, his learned counsel was justified in arguing that he had no reason to falsely implicate the respondents in the instant case, however, at the same time without independent corroboration statement of the complainant cannot be taken as a gospel truth. In the instant case astonishingly, without waiting for the final conclusion of investigation, in a hasty manner, he made statement in favour. Of Mahboob and Safdar Hussain; before subsequent investigations carried out by Superintendent of Police, Kasur and DSP Range Crime; who too supplemented the conclusion drawn by the first Investigating Officer. Moreover, it has come in the evidence of Nazir Ahmed (DW-2) that during the inquiry before SP, Kasur, he alongwith others were appointed arbitrators on the recommendations of both sides, however, they unanimously resolved the issue that respondents and other nominated accused were quite innocent having no concern with the occurrence. Similarly it has also come on record in the testimony of Ghulam Rasul (DW-1) that when the occurrence had taken place he alongwith complainant and other P. Ws. Was present in the house of the complainant and they had not seen the occurrence.
10. In this regard Muhammad Khursheed guest of the appellant/ complainant, who had reached their house in order-to attend marriage ceremony was quite independent witness, however, he was not produced during the course of trial in support of the prosecution version rather was given up for the reasons best know to the prosecution.
11. Next comes the medical evidence. While appearing in the witness box. Dr. Muhammad Shafique (P.W.4), who had conducted postmortem examination upon the dead body of deceased, stated that urinary bladder was empty and there was no digested/semi-digested food in the stomach of the deceased. Hence, this circumstance squarely contradicts the occular account that the deceased had gone to ease himself in sugarcane crop as such it can safely be held that the medical evidence does not coincide with the occular account. Moreover, according to scaled site plan (Exh.PF and Exh.PF/1), the 'same is at variance with the stance advanced by the complainant in the crime report with regard to distance between the accused and the deceased.
12. Admittedly nevertheless the respondents remained on physical remand for full period, however, nothing was recovered from their possession, therefore, this aspect was rightly resolved by the learned trial Court in favour of the respondents. At the risk of repetition it may be mentioned here that not only the respondents were found innocent during the course of successive investigations rather the Investigating Officer had also prepared discharge report in this regard. Moreover, except the respondents against the rest accused special leave to appeal was not granted by this Court and such findings have attained finality. Even otherwise it is cordial principle of law that if there are two possible interpretations of evidence, the one favouring the accused would be interpreted.
' Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of MUHAMMAD YOUNAS v. THE STATE (1992 SCM R 1592). Similar view was affirmed by august Supreme Court of Pakistan in the case of GHULAM HUSSAIN alias HUSSAIN BAKHSH and 4 others vs. THE STATE and another (PLD 1994 Supreme Court 31); wherein it was held as under:-- "----Ss.302/149, 148 & 449---Two conflicting versions--When there were two conflicting versions for consideration before the Court, the one agitated by the prosecution and the other by the defence and both were probable, the one favouring the defence was to be preferred, moreso when it got corroboration from the circumstantial evidence available in the case."
13. The imperative and foremost aspect of this case relates to the scope of appeal against acquittal. In its landmark judgment in the case of Ghulam Mustafa and another v. Mamraz Khan and others .(PLD 1985 SC 11), the august Supreme Court of Pakistan has provided following guidelines:-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused.
' This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial, a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from a normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with the acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions 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 conclusion 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."
14. We have carefully gone through in detail the facts of the case, the prosecution evidence and the arguments of learned counsel for the parties on the touchstone of principles laid down by august Supreme Court of Pakistan in the judgment cited supra. However, we have failed to find that the learned trial Court has> committed any misreading or non-reading of evidence available on the record. Rather the conclusion drawn by the learned trial Court is just and .Proper, which needs no interference by this Court. Even otherwise, learned counsel for the appellant failed to point out any iota of evidence available on the record, which is required to convict a person on the charge of capital sentence. The whole prosecution case squarely compromises of conjectures, surmises and suspicions, which cannot be made basis for conviction in a case of murder and what to talk of appeal against acquittal when the presumption of innocence becomes double in such like cases.
15. For the foregoing reasons, learned counsel for the appellant has failed to persuade us to take a contrary view to that already taken by the learned trial Court. Resultantly, Criminal Appeal No.1471 of 2001 stands DISMISSED IN TOTO. The acquittal judgment of the learned trial Court passed on 23- 7-2001 is upheld. Azmat Ali and Muhammad Sarwar/respondents are on bail. Their sureties are discharged from their liability.