By means of instant appeal under section 417 (2A), Cr.P.C., the appellant seeks conviction of respondents Nos.1 to 3 and 6, Sabir Hussain, Ansar Javed, Shaukat Ali and Muhammad Akram, who being involved in case FIR No,206 dated 24.5.2005, offence under sections 302, 324, 337-A(i), 337- A(ii), 337-L(2), 148, 149, P.P.C. Registered at Police Station Samberial, District Sialkot was tried by the learned Addl. Sessions Judge, Daska, District Sialkot and ultimately respondents Nos.1 to 3 and 6 along with other respondents, namely, Imran and Allah Ditta (since dismissed as withdrawn to their extent) were acquitted of the charge vide judgment dated 04.10.2006, which is liable to be set aside.
2. Briefly, the allegation against the respondents is that they while armed with their respective weapons, in prosecution of their common object committed murder of the deceased Muhammad Inayat and caused injuries to injured PWs, namely, Asad Ali and Amjad Hussain."
3. The learned counsel for the appellant contends that the learned trial court has misconstrued the facts and has acquitted respondents Nos.1 to 3 and 6 on extraneous grounds; further adds that the impugned judgment dated 04.10.2006 is based on misreading and non-reading of evidence; further adds 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 3 and 6 be convicted.
4. We have heard the arguments of the learned counsel for the appellant and the learned Law Officer, as well and have minutely perused the available record annexed with this appeal.
5. The FIR was lodged with consultation and deliberation. We cannot lose sight of the fact that the First Information Report in this case had been lodged at 10.50 a.m. On 24.5.2005, i.e, both delay of seventeen hours and twenty minutes. No reasonable explanation had been offered by the prosecution for this inordinate delay in lodging the First Information Report. Abdul Rehman-the complainant (PW-1) deposed during cross-examination which reads as under:- "I went to police station on the same day dated 23.5.2005 at 6.30 p.m. But I did not get registered the case on that day."
Abdul Rehman-the complainant (PW-1) during cross-examination also deposed as under:- "At that time no application was written. When we reached police station firstly at that time no complaint was lodged. It is correct that an application with regard to the occurrence was got written on that day. It is correct that I filed my complaint Ex. h.PA on 24. 5 .2005 . "
6. The deposition of PW-1 indicates that the report had been made after due deliberation and can be brushed aside. It is necessary that First Information Report be recorded promptly as earlier as possible regarding the occurrence i.e, "(a) name the accused and the parts played by them, (b) the weapon if any used by the accused persons and (c) names of the eye-witnesses", if any. Delay in lodging FIR often resulted in embellishment which is creation of an after-thought. Abdul Rehman (PW-1), who is son of the deceased, has stated that "Shaukat Ali (the accused) raised Lalkara and gave a "Saria" blow on the head of my father. The accused Sabir also gave a Butt blow which also hit on the head of my father Inayat Ullah who fell down on the ground. Ansar the accused, present in Court, gave a Sota blow which hit on the left ear of my brother Asad. We took our father in injured condition to Rural Health Centre, Sambrial" whereas during cross-examination he deposed which reads as under:- "Sabir (the accused) inflicted two injuries at the person of deceased Inayat Ullah. Sabir accused inflicted two injuries at the head of deceased. Shaukat Ali accused also inflicted two injuries at the head of deceased Inayat. When Shaukat attacked my father with "Saria", he did not drop pistol.
Shaukat accused gave Saria blow to my father by holding Saria with both hands".
PW-1 (complainant) further deposed that:- "I cannot tell exactly who caused invisible injuries on any person".
PW-1 further deposed during cross-examination that:- "I took my father in injured condition to police station". PW-1 further deposed during cross- examination that:- "When my father was shifted to RHC Sambrial, I remained at the place of occurrence".
Asad Ali (PW-2), who is also son of the deceased, has deposed during cross-examination that:- "I did not get recorded my statement in police station. My statement was never recorded before any this statement".
He (PW-2) deposed during cross-examination that:- "I have not mentioned in my examination-in-chief that on what part of head of deceased Inayat Ali, "Saria" of the accused Shaukat hit".
PW-2 (Asad Ali) also deposed that "It is correct that I went to hospital straightway. I did not go to police station" whereas from the docket Ex.h.PS it reveals that the same was prepared through Rapt No,30 Roaznamcha dated 23.5.2005 and injured Asad Ali was referred to Hospital through Muhammad Aslam 409/C for medical examination. The same fact also reveals from Medico-legal Certificate Exh.PE. The evidence of the injured witness-Asad Ali (PW-2) is contradictory to entries made in the docket (Exh.PS) and Medico-legal Certificate (Exh.PF).
7. It is noted that Muhammad Anwar, A.S.I (PW-9) deposed during cross-examination that on 24.05.2005 he prepared six dockets of injured PWs for forwarding them for MLRs, The dockets were three in number from accused party and from the complainant party each. Muhammad Anwar, A.S.I (P.W-9) deposed contradictory to the documentary evidence available on the record as Exh.PR, Exh.P.S and Exh.PT which were prepared by him on 23.05.2005.
8. It is the case of the defence that on the same day, time and place suddenly scuffle between them took place wherein Shoukat Ali (respondent No,3), Imran, Allah Ditta and Muhammad Akram were not present. They admitted that during scuffle Inayat Muhammad received injuries, Sabir Hussain (respondent No,1) and Ansar Javed (respondent No,2) were present. The respondents Nos.1 to 3 have pleaded their innocence.
9. The evidence of PW-3(Muhammad Nazir) who is supposed to be eye-witness of the occurrence was not worthy of credence.
Abdul Rehman-complainant (PW-1) during cross-examination deposed that: "PWs Nazir and Shafi had not reached at our Dera when Shoukat and Sabir launched an attack at my father when he was taking hubble and bubble."
Whereas PW-3 (Muhammad Nazir) deposed during cross-examination that:- "I had got recorded my statement before lodging FIR. I had never recorded my statement after recording of FIR".
10. Muhammad Nazir (PW-3) during examination-in-chief deposed that when he reached the Dera of Inayat Ali deceased, in the meanwhile all accused persons including respondents Nos.1 to 3 is in conflict with the deposition of the complainant-PW-1. The evidence of this witness cannot be relied upon, the version given by Muhammad Nazir (PW-3) as he himself has clearly deposed that "he had not made any statement after recording of the FIR". PW-3 during cross-examination deposed that 'it is correct that my wife was daughter of Inayat Ali, deceased" whereas PW-1 deposed that "PW Nazir is nephew of the deceased". PW-3 being a relative of the deceased is an interested witness and no reliance can also be placed on his testimony. --
11. From the evidence of the prosecution witnesses that two injured prosecution witnesses, documentary evidence and the defence plea, it is evident that fight/clash took place between the parties i.e, the complainant side and accused side. It is also observed by us that the prosecution has not come up with a true version. It is well settled that when the prosecution seems to have suppressed the genesis and origin of the occurrence, Courts have to examine the theory of the prosecution very cautiously to find out at the first instance as to whether prosecution has come forward with true version. Though the entire evidence cannot be discarded in toto, the genesis of the occurrence and fight between two groups is before us.
12. It is noted that though the complainant Abdul Rehman (PW-1) states that prior to main occurrence on the same day at about 8.30 a.m. a quarrel took place over the dispute of Khal and accused Allah Ditta had threatened them of dire consequences whereas in the Exh.PA and Exh.PA/1, the complainant had not mentioned time of earlier quarrel and with this dishonest intention he improved his statement about time of occurrence. It will be pertinent to mention here that another two prosecution witnesses i.e, PW-2. And PW-3 have not uttered a single word about motive part of the occurrence. Although they (PW-2 and PW-3) were close relatives of the deceased but they were not aware about the earlier incident. Asad Ali, PW-2 during the cross-examination deposed that "It is correct that accused party is related to us. It is correct that we had cordial relations prior to the occurrence of the quarrel over water course." Even PW-1 had not rendered any explanation that why the witness did not endeavour to prevent the attack on them when serious threats were extended to them.
13. In the examination of witnesses, the deceased remained alive for 13/14 days. The deceased was medically examined by Dr. Athar Hussain Sheikh (PW-5) in injured condition and PW-5 prepared MLC of injured which is Exh.PD. PW-5 admitted as correct that he has recorded the age of the deceased Inayat as 70 years in M.L.C. And the age was confirmed by the deceased Inayat.
Muhammad Anwar ASI (PW-9) deposed that he prepared injury statement (Exh.PR) of Muhammad Inayat, which reveals that Muhammad Inayat was referred to the Hospital for medical examination through Muhammad Aslam Constable/409 and same fact reflects from medico-legal certificate (Exh.PD). During the cross-examination, he admitted that he has not recorded the statement of the deceased Inayat when he was injured, whereas PW-2 deposed during the cross-examination that "first we took our father to hospital, then to police station. I do not know whether my father put any thumb impression or not. The statement of my father was recorded in the hospital. Again said M.L.R of deceased was received from the hospital. My father did not tell me on what part of his body, he had received injuries. " Whereas both the eye-witnesses deposed that Muhammad Inayat was firstly taken to R.H.C, Sambrial and later on, to Ciyil Hospital, Sialkot. There is clear contradiction about the facts that where first of all, the deceased was taken too and about his making of statement.
14. In fact PW-1 should have named the accused who caused him injuries on his person, whereas he deposed during the cross-examination that "I cannot tell exactly who caused invisible injuries on my person. After giving butt and saria blows on the person of my father, accused Sabir and Shaukat fled away", whereas Asad Ali (PW-2) deposed during the cross-examination that "It is not in my knowledge who had inflicted injuries on the person of my father Amjad". Both prosecution witnesses were not able to state that who caused injuries on the person of PW-1, himself and on the person of Amjad, whereas they stated that respondents Nos:2 and 3 caused injuries to the deceased. Asad Ali (PW-2) deposed that "the wound of my father approximately was six inches at the back side of his head." Abdul Rehman (PW-1) states in examination-in-chief that Sabir gave "Butt blow" and Shaukat gave Saria blow on the head of the deceased whereas during the cross- examination, he deposed that "Sabir accused inflicted two injuries at the head of deceased.
Shaukat accused also inflicted two injuries at the head of the deceased, Inayat."
15. The crucial aspect of the evidence of PW-1 and PW-2 to be adverted to is that PW-5 Dr. Athar Hussain Sheikh and PW-6 Dr. Muhammad Asif Mughal observed only two injuries on the person of the deceased. As per medico-legal certificate (Exh.PD) and postmortem report (Exh.PG) injury No,1 was on the left forehead and injury No,2 was on the left side of head 3-cm back to injury No,1.
Prosecution witnesses have not stated that who was responsible for injuries Nos.1 and 2. PW-1 deposed that on the head, two injuries each were caused by Sabir and Shaukat, whereas Asad Ali (PW-2) deposed that his father received injuries on the back of head. There is clear contradiction in medical and ocular account which renders prosecution evidence doubtful.
16. It is also noted by us that the prosecution witnesses admitted during the cross-examination that accused Sabir and Ansar also received some injuries in the combat. Muhammad Anwar ASI (PW-9) during the cross-examination admitted that he prepared 6-dockets, three from the complainant side and three from the accused side. On going through the evidence, we are of the opinion that there was a deliberate intention on the part of the prosecution to suppress the injuries on the accused. In view of the evidence of the interested and inimical witnesses, the attending circumstances and the serious infirmities regarding the non-explanation of the injuries on the person of the accused, suppressing the genesis of the incident etc. Make the prosecution case highly un-trust worthy.
17. As far as role attributed to Ansar Javaid (respondent No,2) is concerned, Dr. Athar Hussain Sheikh (PW-5) opined that injury No,1 is Shajjah-e-Khaflfah falling under Section 337/A(i) P.P.C.
Injury No,1 was attributed to Ansar Javed (respondent No,2). PW-5 deposed that the possibility cannot be ruled out that injuries sustained by Asad Ali/PW might be self inflicted. Therefore, the genesis of the occurrence is not the one as stated by the prosecution.
18. In this case, when the defence has to an extent been able to demolish the case of the prosecution, the evidence of the eye-witnesses has to be approached very cautiously. We have already high-lighted that over all circumstances and the prosecution evidence do not inspire confidence about the mode of occurrence, and thus cast a serious doubt on the prosecution case.
19. We do not think it necessary to discuss effect of recoveries and investigation in detail as the trial Court has discussed these questions/aspect of the case at length and we agree with those findings.
The judgment of the learned trial court is based on the correct appreciation of evidence and law on the point. It does not suffer from any illegality or perversity. It is a settled principle of law that if two views are possible, then the former shall prevail over the latter. The appellate Court can only interferer with the judgment of acquittal, if it comes to the conclusion, that the learned trial Court has misread or did not appreciate the evidence in its true perspective or that the judgment suffers from inherent illegality or perversity. As stated above, since the judgment of the learned trial court does not suffer from any illegality and perversity and the view taken by it, could be said to be possible on the basis of evidence. Hence, no ground to interfere with the same is made out.
20. In view of the aforesaid facts and circumstances, we are satisfied that the prosecution has failed to prove its case beyond all reasonable doubt. The story of occurrence is highly doubtful, the witnesses were inimical and they have given contradictory statements on medical points and they also suppressed real facts. Accordingly, we find no reason to interfere with the impugned judgment and the appeal is therefore, dismissed.