' ASLAM JAVED MINHAS, J.---Muhammad Hussain appellant has approached this Court by way of instant appeal under Section 417(2), Cr.P.C. By calling in question the judgment date 24.12.2008 passed by a learned Additional Session Judge, Rajanpur whereby respondents were acquitted from the charge in case FIR No,139/2004, dated 02.12.2004, under Section 302, 109/34, P.P.C.
Registered at Police Station Bangla Ichha, District Rajanpur.
2. The brief facts of the case are that on 02.12.2004 at about 5. p.m. The appellant reported the matter to Ghulam Abbas, SHO at Police Post Sonmiani by stating that he was a farmer and about 5/6 years and marriage of his son Murid Hussain was solemnized with Mst. Sharmo and out of this wedlock a son was born who died after one year. Thereafter, the relations between the spouses became strained and at last Murid Hussain divorced Mst.Sharmo which annoyed Wali Muhammad paternal uncle of Mst. Sharmo. About one week before the occurrence when the complainant and Murid Hussain were coming towards Sonmiani on a motorcycle. At Mochi bridge, Wali Muhammad stopped them and stated that Murid Hussain has not done good by divorcing his niece Mst.Sharmo and his days of life were numbered. On the fateful day, the complainant, Murid Hussain and Noor Khan came to purchase goods on their motorcycle at Qasba Sonmiani where one Sattar also met them at Azad Market and Murid Hussain told them that they should make purchases and in the meanwhile he would get his motorcycle repaired and when Noor Khan etc. Hardly had covered a distance of ten yards, Murid Hussain called him loudly "father save me" but within their view Iqbal accused fired a shot with his pistol 12-bore which hit at the back of Murid Hussain who fell down on the ground. When the complainant and the PWs inquired from the accused that why they had made fire shot, Muhammad Akram pointed pistol towards them whereas Iqbal accused loaded second cartridge and Ghulam Rasool remained sitting on startup motorcycle of Muhammad Iqbal.
Muhammad Akram stated that they had taken revenge of his father's annoyance and all the accused persons namely, Ghulam Rasool, Muhammad Akram and Muhammad Iqbal decamped while boarding on the motorcycle.
3. After registration of the case, the investigation was conducted by Ghulam Abbas SHO Police Station Bangla Ichha, PW10 who after completion of the investigation submitted first report under Section 173, Cr.P.C. On 25.01.2005 by placing the names of Wali Muhammad, Muhammad Akram and Ghulam Rasool in column No,2 and that of Muhammad Iqbal in column No,3. Second report under Section 173, Cr.P.C. Was prepared on 20.8.2005 in which names of accused persons Muhammad Akram, Ghulam Rasool and Wali Muhammad were placed in column No,3. The learned trial Court framed the charge against the accused on 21.11.2005 to which they pleaded not guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution examined as many as 12 witnesses to prove guilt of the accused. PW1 Bashir Ahmad Constable/433 kept two sealed parcels of blood stained earth and crime empty and one sealed parcel of pistol 12-bore which he handed over to Akbar Ali 420/C for its onward transmission to the office of Chemical Examiner, Lahore and Forensic Science Laboratory, Lahore. PW2 Akbar Ali 420/C delivered the above said sealed parcels intact to the offices concerned. PW3 Hashim Raza 250/C escorted the dead body of Murid Hussain for post mortem examination to the mortuary. PW4 Bashir Ahmad chalked out the formal FIR Ex.PA/1 on the basis of complaint Ex.PA. PW5 Dr. Manzoor Ahmad, Medical Officer conducted the post mortem examination on the dead body of Murid Hussain and found the following injuries on his person:-
1. A group of five circular lacerated wounds each having size of I x 1 cm situated in an area of 6 x 5 cm on the left scapular region of the back of the chest. The margins of the wound were inverted. No blackening and no tattooing presented. It was wound of entry.
2. An oval shape lacerated wound 1.5 x 0.6 cm on the left side of the chest interiorly 1 cm below the left nipple. The margins of the wound were averted. There was bleeding from the wound. It was wound of exit.
' In the opinion of the doctor, "both the injuries were ante mortem and were caused by firearm and cause of death was injury of heart which was a vital organ of the body. According to him, probable time between injuries and death was within few minutes while death and postmortem was three to four hours.
' PW6 Muhammad Hussain was complainant of the case. He supported the prosecution version.
PW7 Abdul Sattar was also an eyewitness of the occurrence and he also supported the prosecution story. PW8 Sher Muhammad attested the recovery memo Ex.PE whereby empty PI was taken into possession. He also identified the dead body of Murid Hussain at the time of post mortem examination. PW9 Meer Hazar was witness of conspiracy which took place at the shop of one Muhammad Nawaz when accused persons namely, Akram, Iqbal and Ghulam Rasool informed Wali Muhammad accused about the presence of the deceased there. PW10 Ghulam Abbas SI and PW11 Syed Bahar Shah DSP investigated the case. PW12 Qadir Hussain 615/C attested the recovery memo Ex.PJ whereby pistol P4 was taken into possession.
5. The trial culminated into acquittal of Muhammad Akram, Ghulam Rasool and Wali Muhammad, respondents whereas Iqbal accused was convicted and sentenced. Through the instant appeal the appellant has challenged the acquittal of the respondents.
6. Learned counsel for the appellant contends that the learned trial court has acquitted the respondents by ignoring the fact that they were also present along with main accused at the spot in furtherance to their common object; that Ghulam Rasool, respondent was armed with hatchet and Muhammad Akram was armed with Kalashnikov came along with the other accused; that the motive is also against Wali Muhammad, respondent; that the learned trial court did not discuss the evidence and acquitted the respondents in hasty manner; that sufficient evidence was available against Wali Muhammad, accused who hatched up the occurrence as narrated by PW9 but the learned trial court ignored the same without any reason; that PW6 Muhammad Hussain and PW7 Abdul Sattar fully corroborated each other on material points as well as with the medical evidence.
Further argued that the accused with their common object murdered their close relative Mst. Izzat Mai wife of Akram accused as Kala Kali (sic) for which FIR No,4/2006 was registered under Section 302, 210, 148, 149, P.P.C., therefore, the learned trial court wrongly acquitted the respondents as they were desperate and hardened criminals.
7. On the other hand, learned counsel for the respondents contended that the prosecution failed to bring on record the guilt of the accused beyond a reasonable doubt, therefore, the learned trial court has rightly acquitted the respondents.
8. We have heard the learned counsel for the parties and perused the record.
9. Once acquittal is granted by a court of competent jurisdiction, obviously strong grounds are required to re-call the freedom of the accused and unless it is demonstrated that the impugned view of the court A whereby acquittal is recorded, is perverse, arbitrary and capricious, resulting into miscarriage of justice, the same could not be interfered. By taking this view we are guided by the case of Shahid Abbas v. Shahbaz and others (2009 SCM R 237) where it has been held that "--- It is now well-settled that there are different parameters for interference in an appeal against acquittal and appeal of conviction. In case of acquittal the presumption of innocence of the accused becomes double. Court only interferes to avoid grave miscarriage of justice and when judgment of acquittal is perverse, capricious (sic) down by this Court in the case of M. Lobal v. Abid Hussain 1994 SCM R 1928. We have scanned the evidence available on record and find no miscarriage of justice qua the acquittal of respondent". Similarly, in the case titled Azhar All v. The State (PLD 2010 Supreme Court 632), the august Supreme Court observed that "-- Conversion of judgment of acquittal into judgment of conviction---Principles-Appellate Court should and will always give proper 'weight and consideration to the views of the Trial Court as to credibility of the witnesses; the presumption of innocence in favour of the accused, a presumption certainly not weakened by his acquittal at the trial; the right of the accused to the benefit of any doubt; and the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witnesses".
10. Likewise, we are guided by the case of Ghulam Sikandar v. Mumraiz Khan (PLD 1985 SC 11), in the case in hand, learned trial court has discussed each and every aspect of the evidence available on record. There is no evidence on record that the respondents have caused any injury to the deceased. The motive set by prosecution is against Iqbal accused who has been convicted and sentenced to life imprisonment. PW9 Mir Hazar stated in his statement that on the abetment of Wali Muhammad, respondent the present occurrence was committed but he has failed to give any specific time when he overheard the conversation of abetment. Throughout the investigation of Ghulam Abbas SI, PW10 this PW never appeared before him and got recorded his statement. He for the first time, came on scene after three and a half months of the occurrence when he got recorded his statement under Section 161, Cr.P.C. Before Syed Behar Shah DSP. His statement was also not supported by Naik Muhammad who allegedly was with him when they overheard the conspiracy but this PW was given up by the prosecution. Learned counsel for the appellant failed to point out any mis-reading or non-reading of evidence, therefore, no interference with the impugned judgment to the extent of respondents is called for. The accused is presumed to be innocent in law and if after regular trial he is acquitted, he earns a double presumption of innocence and heavy cause lies on the prosecution to rebut such presumption.
11. In view of what has been stated above, we hold that the case of the prosecution with the regard to the respondents was rightly disbelieved by the learned trial court, therefore, present appeal is dismissed.