ABDUL MAALIK GADDI, J.---Through this criminal acquittal appeal the appellant has assailed the legality and propriety of the judgment dated 03.03.201 6, passed by the learned Additional Sessions Judge, Matiari, in Sessions Case No,119 /2014 (Re: State v. Allah Dino and others ) registered under sections 302, 324, 114, 34, P.P.C., pertaining to crime No,12/2014 registered at Police Station Khybrani, whereby the learned trial court after full dressed trial acquitted the accused/respondents by giving them benefit of doubt.
2. The brief facts of the prosecution case are that on 04.06.2014 at 1200 hours at the cattle pen of Mangal Bhacho, village Juma Shahok, the respondents duly armed with pistols, in furtherance of common intention came and accused/respondent Muhammad Sharif instigated co-accused not to spare complainant party whereupon they opened straight fires upon complainant party with intention to kill them but the fires were missed thereafter accused Allah Dino opened straight fire upon sister of complainant namely Mst. Hakeema, who succumbed to her injuries at hospital in Matiari, hence this case.
3. The case was initially investigated by ASI Umed Ali then S.H.O. Mahar Ali, who submitted charge sheet against the accused before the Court of learned Civil Judge and J.M. Matiari on 05.07.2014, showing accused Allah Dino under custody while remaining accused as absconders. Subsequently , absconding accused Muhammad Sharif appeared before the Court and joined the trial after getting pre arrest bail. As the offence under section 302, P.P.C. was exclusively triable by the Court of Session, hence the learned Magistrate, after initiating proceedings under sections 87 and 88, Cr.P.C. against absconding accused, sent up the case to the court of Sessions Judge, Matiari.
Subsequently , it was transferred to the trial court on 02.09.2014.
4. Statements were supplied to Accused Allah Dino and Sharif vide receipt at Ex.1. Formal charge was framed against them at Ex.5, to which they pleaded not guilty and claimed to be tried. Such pleas of accused were recorded at Ex.5/A and 5/B. Thereafter absconding accused Allah Dino and Pervez appeared before the Court and joined the trial after getting pre-arrest bail. Statements were supplied to them vide receipt at Ex.6. Amended charge was framed against the accused at Ex.7, to which they pleaded not guilty and claimed to be tried. Such pleas of accused were recorded at Ex.7/A to 7/D.
5. To prove its case the prosecution exam ined P.W-1 complainant Makhan at Ex.8, who produced F.I.R. at Ex.8/A.
P.W-2 Allah Warayo at Ex.9, who produced his 164, Cr.P.C. statement at Ex.9/A. PW-3 Gul Muhammad at Ex.10, who produced his 164, Cr.P.C. statemen t at Ex.10/A. P.W-4 Dr. Nasreen Tahir at Ex.11, who produced letter of police, Lash Chakas Form and postmortem report at Ex.11/A(i), 11/A(ii) and 11/B respectively . PW-5 Ghanwar at Ex.12, who produced mashirnama of injuries at Ex.12/A, mashirnama of inspe ction of dead body at Ex.12/B, Danishtnama at Ex.12/C, mashirnama of clothes of deceased at Ex.12/D, mashirnama of place of incident as Ex.12/E and mashirnama of arrest of accused Allah Dino and recovery of weapon from him at Ex.12/F . P.W-6 S.H.O Mahar Ali at Ex.13, who produced report of ballistic expert at Ex.13/A. P.W-7 SIP Umed Ali at Ex.14, who produced letter issued by him to medical officer at Ex.14/A, copy of entry Nos,12 and 13 regarding arrival of Allah Warayo at PS and his departure at Ex.14/B, receipt of receiving of dead body from WMO at Ex.14/C, receipt of delivery of dead body to one Tooh at Ex.14/D, chemical examiner report at Ex.14/E , copy of letter through which he sent the weapon to ballistic expert as Ex.14/F , copy of entry No,10 whereby FIR of complainant was registered at PS at Ex.14/G and entry No,15 regarding arrival at PS as Ex.14/H. PW-8 Tapedar Ghulam Nabi at Ex.15, who produced sketch of place of incident at Ex.15/A. Thereafter , learned DDPP closed the side of prosecution evidence vide statement at Ex.16.
6. The accused were also examined under section 342, Cr.P.C. through their statements recorded at Exs.17 to 20, in which they denied the allegations against them leveled in prosecution case, and they alleged about PWs to be interested, and further claimed their innoc ence. Accused Allah Dino claimed to examine witnesses namely Wazir Ali and Sahib Dino in defense and refused to be examined on oath. However , he only produced one witness named Wazir who was examined as DW-1 at Ex.21 while other defense witness namely Sahib was given up by the learned defense Counsel vide statement at Ex.22. Thereafter , learned defense Counsel closed the side of defense evidence vide statement at Ex.23. The remaining accused refused to be examined on oath and to lead evidence in defense.
7. The trial court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 03.03.2016, acquitted the respondents as stated above. Hence, this appeal.
8. Mr. Badal Gahoti, Advocate for appellant contended that the judgment passed by the learned trial court is perverse and the reasons are artificial, vis--vis the evidence on record; it was day incident and delay in FIR was explained; that ocular testimony of three eye-witnesses is reliable, and it is consistent about date, time, place and manner of incident lacking material contradictions; that both parties are residing in same village hence question of identity could not involve, and eye witnesses are natural witnesses, and their testimony was supported by medical evidence so also circumstantial evidence of blood stained soil, recovery of crime empties and crime weapon from accused Allah Dino, report of ballistic expert and sketch of wardat; that DW Sahib was given up without any reason hence it leads to presumption under Article 129 Qanun-e-Shahadat Order , 1984; that if he had appeared he would have not supported the defense version; that charges against the accused were proved beyond the shadow of reasonable doubt; that the trial court passed the impugned judgment acquitting the private respondents. without proper appreciation of evidence on record, therefore, according to him, this Criminal Acquittal Appeal may be allowed as prayed and the private respondents may be convicted.
9. Syed Shafique Ahmed Shah learned Counsel for private respondents argued that no motive was alleged in FIR, and dispute over construction of wall alleged but it was not testified in evidence; that FIR was delayed without furnishing plausible explanation and investigation was made before registration of FIR with mala fide; that all the witnesses of prosecution are interested and close relatives inter se, and independent ocular witnesses were available but not associated; that evidenc e of eye witnesses is based on exaggerations, material contradictions and inconsis-tencies and recovery of crime weapon from the respondent/ accused Allah Dino was made in violation of sections 103, Cr.P.C, and 164, Cr.P.C. statements were also recorded after inordinate delay; that same mashirs were associated in all proceedings, and case against respondents/accused was managed with mala fide intention, as such, prosecution has miserably failed to prove the charges against the respondents/accused beyond the shadow of doubt hence benefit of doubt was rightly extended to them by the trial court. Lastly , he prayed that the appeal may be dismissed.
10. Learned A.P.G. has supported the impugned judgment by arguing that the same has been passed after due appreciation of evidence on record. She submitted that the evidence of prosecutio n witnesses on record is full of contradictions, therefore, according to her, learned trial court has passed the impugned judgment after due consideration of all aspects of the case.
11. We have heard the learned Counsel for the parties at a considerable length and after going through the record come to the conclusion that the prosecution has failed to establish its case against the respondents/accused for the reasons that ocular evidence produced by prosecution through P. Ws. 1 to 3 is inconsistent, contradictory and dis- crepant on material particulars hence it cannot be relied upon against the accused. Moreover , circumstantial evidence produced by the prosecution is also defective lacking the strength of independent corroboration. The medical evidence is also not fully consistent with the ocular version, and all the witnesses except police officials are close relatives inter se hence in said circumstances it is unsafe to rely upon them. In the case of Muhammad Irshad v. The State (1999 SCMR 1030 ), the Honourable Supreme Court observe d that eye witnesses of the incident were closely related to each other hence rule of prudence required that there should have been independent corroboration available for implicit reliance on their testimony . It was held that in case it is lacking, it would be highly unsafe to act upon uncorroborated testim ony of eye-witnesses particularly when it is full of material contradictions.
The same position is in this case.
12. On perusal of record it appears that the alleged incident took place in cattle pen of Mangal Bhacho but Mangal Bhacho has not been examined in this case to corroborate the version of the complainant party . We have noted that accused Allah Dino in his defense has examined D.W. Wazir son of Muhammad Hassan alias Mangal who in his statement has denied that any incident of Mst. Hakeema, sister of complainant was occurred in the cattle pen of his father . This witness though cross-exa mined at length by the complainant party but he did not shatter and has stated that at the relevant date and time he was present in his house in village Juma Shahok but no incident was taken place as alleged by the complainant party . In view of the evidence of D.W. Wazir on record, it appears that perhaps incident has not taken place in a fashion as alleged by the complainant party . We have also noted the contradictions in between the statements of prosecution witnesses under section 161, Cr.P.C. and 164, Cr.P.C.
When these contradictions were confronted to learned counsel for the appellant, he has not replied satisfactorily .
13. It is pertinent to mention here that the pistol allegedly recovered from accused Allah Dino was not produced before the complainant and witnesses during evidence to show whether the same was used in the commission of the offence or otherwise. During course of arguments, we have asked the question of this particular aspect of the case from the learned counsel for the appellant, he has replied that the pisto l was not produced before the complainant and witnesses during evidence.
14. It appears from the record that the accused Allah Dino was arrested on 16.06.2014 and pistol was recovered from his possession, whereas, said pistol and ten empties were received by the Forensic Science Laboratory , Forensic Division, Hyderabad, on 24.06.2014, after the delay of about 08 days for which no satisfactory explanation was furnished by the prosecution and question does arise that during this intervening period where the case property was lying. If it was lying in the malkhana, no entry of malkhana has been produced in this case. Under the circumstances, tampering in the case property could not be ruled out.
15. As far as the question of motive is involved in this case, we have noted that the motive has not been proved as the appellant has failed to produce convincing and cogent evidence with regard to motive of the case.
16. Learned Assistant P.G. during course of arguments has taken us towards the evidence of Dr. Nasreen Tahir, Chief Medical Officer, Civil Hospital Matiari, available on record at Ex.11 of the case file, and has pointed out that the postmortem report of deceased does not reveal the marks, or signs of manure, blood, particles of chaff of wheat were not observed on the dead body and its clothes nor on hair. This aspect of the case also leads us to infer that perhaps the incident has not been taken place in the manner and at the place, as alleged by the prosecution and this aspect of the case also creates doubt.
17. From the perusal of evidence recorded by trial court as well as the impugned judgment, it appears that the impugned judgment of the trial court is based upon sound reasons. Respondents /accused were acquitted by the trial court mainly on the ground that evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy and the same is not sufficient to prove the guilt of the accused/respondents. During the course of arguments, we have specifically asked the question from learned counsel for appellant to point out/show any piece of evidence, which is not supportable from the evidence on record, no satisfactory answer was available with him. Perusal of record shows that the trial court has rightly acquitted the respondents / accused through impugned judgment, which is neither perverse nor arbitrary . So far as the appeal against the acquittal is concerned, after acquittal the respondents / accused have acquired double presu mption of innocence. This Court would interfere only if the judgment / order was arbitrary , capricious or against the record. But in this case, there were number of infirmities and impugned judgment of acquittal in our considere d view did not suffer from any misreading and non-reading of documents and evidence on record. As regard to the consideration warranting the interference in appeal against acquittal and an appeal against conviction, principle has been laid down by the Hon'ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo reported as 1993 SCMR 585, Hon'ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:- "14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice.
Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."
18. For what has been discussed above, we are of the considered view that the impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. Neither there is misreading nor non-reading of material evidence or misconstruction of facts and law.
Resultantly this Criminal Acquittal Appeal is without merits and the same is dismissed.