MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This Criminal Acquittal Appeal is directed against the judgment dated 19-12-2013 ("impugned judgment") passed by the learned Sessions Judge (Ad hoc) Quetta ("trial Court"), whereby the respondent was acquitted of the charge.
2. Precisely the facts of the case are that the complainant Rozi Khan ("appellant") lodged an FIR No,19 of 2011 under sections 324 and 34, of the Pakistan Penal Code, 1860 ("P.P.C.") with Levies Thana Hanna, averring therein that on 19-7-2011 at 6-30 a.m., accused Muhammad Arif, while quarreling with his younger brother made firing upon him with his official pistol, which resulted into causing injury to his younger brother, whereas accused Muhammad Asif ("respondent") also assaulted the complainant and his brother with a knife.
3. After registration of the FIR the challan of the case was submitted before the learned trial Court.
Thereafter, charge was framed against the respondents and read over to them to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against them produced as many as six witnesses. On completion of the prosecution's evidence, respondents were examined under section 342, Cr.P.C, wherein they once again professed their innocence but did not opt to enter in their defense nor produced any defense witness. The learned trial court on conclusion of the trial acquitted the respondent viz. Muhammad Asif by extending benefit of doubt in his favour, whereas the co-accused Muhammad Arif was convicted and sentenced in the following terms:-- "The injuries to victim Rozi Khan were declared to be Shajjah-i-Mudihah and Jurh Ghyar jaifah Damiyah, the accused Muhammad Arif is thus convicted under section 337-A(ii) and sentenced to imprisonment for 2 years and Harsh (sic.) of Rs,5,000. He has furthed (sic.) been convicted under section 337-F(i) and sentence R.I. For 6 months and Daman of Rs,5,000. The injuries to victim Naseem has been declared Jurh Ghyr-mutalahima, therefore, the accused Muhammad Arif is also convicted under section 337-F(ii) and sentenced for imprisonment of one (1) year and Daman of Rs, 10,000. The amount of Ursh and Daman shall be paid to the victim Rozi Khan and Naseem."
4. Mr. Muhammad Usman Yousafzai, learned counsel for the appellant contended that the ocular evidence is fully corroborated by the medical and circumstantial evidence, which was sufficient to prove the charge against respondent No,1 but the learned court has acquitted him by misreading and non-reading of the evidence available on record. He contended that all the prosecution witnesses have nominated respondent No,1 with a specific role and there is no contradiction whatsoever in their statements and medical evidence, therefore, there was no occasion for the learned trial court to acquit the respondent of the charge, despite the fact that on basis of same evidence the principal accused Muhammad Arif was convicted. He added that the blood stained clothes and empties of the crime were recovered from the place of occurrence. The promptly lodged FIR and statements of witnesses recorded under section 161, Cr.P.C. Followed by their deposition on oath before the court lead towards the guilt of the acquitted respondent. He maintained that the respondent and convicted accused are real brothers, therefore, question of sharing common intention cannot be ruled out, which has wrongly disbelieved on basis of flimsy benefit of doubt. He finally urged for setting aside the impugned judgment up to the extent of acquittal of the respondent and prayed for recording conviction against him in the same manner as recorded against the principal accused.
5. #We have heard the learned counsel and also gone through the record. ##TS#The perusal of record shows that respondent and his real brother i,e, principal accused were nominated towards commission of the offence and section 34, P.P.C. Was also levelled against them to establish the factum of sharing common intention but the testimony of injured witnesses, when read in conjunction with medical evidence, the same altogether portrays a different picture in respect of the occurrence, whereas the appellant in his court statement stated as follows:- {{URDU TEXT}} Now, when adverting to the medical evidence and the deposition of P.W.7 viz Dr. Ali Mardan, the Medico-Legal Officer of the Sandeman Provincial Hospital, Quetta, who produced the Medico Legal Certificate ("MLC") as Exh.P/7-A wherein the alleged injuries caused to the appellant states as follows:- "(i) Lacerated wound on occipital region of head size 6 cm bone exposed.
(ii) Lacerated wound on right elbow joint 3 cm bone exposed
(iii) Bruise on back of chest 7 cm.
(iv) Entrance of bullet on anterior side of right thigh.
(v) Entrance of bullet on lateral side of left thing (sic) (thigh)"
The Medico-Legal Officer opined that he had noted a lacerated wound on the person of injured appellant on his occipital region of head size 6 cm bone exposed (without explaining the right or left side) and another lacerated wound on right elbow joint with 3 cm bone exposed. The relevant part of ocular testimony as reproduced herein above states that the said injuries were caused by means of knife. The glaring contradiction between the ocular and medical testimony can be noted, that the principles of Medical Jurisprudence do not support the narration that how the allegedly used knife could cause lacerated wound instead of incised wound. In order to better understand the controversy, it would be advantageous to reproduce the definition of lacerated and incised wounds as provided at pages Nos. 416 and 426 in the "Principle and Practice of Medical Jurisprudence and Toxicology" authored by the renowned jurists Mr. Manoj H. Parekh and S. P. Singh Parmer, 2008 Edition published by DWIVEDI & Company Allahabad India, which states as follows:-- "Lacerated wounds: Lacerated wounds are tears or splits produced by blows from blunt objects and missiles, by violent falls on hard projecting surfaces, by machinery and railway accidents, by the wheels of a vehicle causing a grinding compression by their weight resulting in avulsion of the skin."
Incised wounds: An incised wound is produced by sharp cutting instrument such as a knife, razor, scissors, sword, Gandasa (chopper), axe, hatchet, scythe, kookri or any object such as a broken piece of glass or metal which has a sharp cutting pointed or linear edge and are mostly intentionally inflicted. The cutting edge of a knife may be completely or partly sharp and party blunt and the other edge may blunt, serrated scalloped or hollow, all these variations effect the shape of wound."
Therefore, keeping in view the referred to definition and well settled principles of the medical jurisprudence, the respondent Muhammad Asif cannot be held responsible for causing the said injuries or the occurrence has not been stated in the manner, as it was committed. The sufficient doubt was created in respect of affixing the vicarious liability of injuries caused to the appellant.
The principle of "Falsus in Uno Falsus in Omnibus" is a part of the English law, which is not recognized by the Criminal Legal System of our country, due to complexities of tribal system in our society the possibility of false implication cannot be ruled out, therefore, the Hon'ble apex Court when dealing with such an ambiguous evidence has held that "it is not necessary that the injured witness is always telling the whole truth" therefore, principles of 'Falsus in Uno Falsus in Omnibus' has not been approved for reliance and recording the conviction on basis of such type of evidence.
6. The Hon tie apex Court has also laid down certain principles, while dealing with the appeals against acquittals; therefore, keeping in view the principle of benefit of doubt as derived from Islamic Jurisprudence of Criminal Justice System, it has been held that in case of acquittal the respondent/accused carries double presumption of innocence. The first one, which contemplates that accused is presumed to be innocent till proven guilty and secondly after securing the acquittal, he acquires a legal vested right beyond the presumptions because after a complete trial the court reaches to the conclusion and acquits the accused. Thus, on basis of said analogy the courts are normally reluctant to interfere with the verdict of acquittal unless it is proved on record that the verdict of acquittal is perverse, artificial, fanciful, fictitious or based upon non-reading and misreading of evidence, particularly or if the acquittal was rendered against the dictum laid down by the Hon'ble apex Court.
Thus, in view of the above discussion we are of the considered view that the impugned judgment, whereby the respondent was acquitted of the charge is unexceptional and does not warrant any interference by this court.
Therefore, the appeal is dismissed in limine.