ROZI KHAN BARRECH, J.---- This criminal acquittal appeal was filed to question the validity of ' judgment dated 30.04.2015 (hereinafter "the impugned judgment") passed by learned Additional Sessions Judge Dera Allah Yar (hereinafter "trial court"), whereby the accused/respondents were acquitted of the charge by the trial court in FIR No. 165/2014 lodged with PS Dera Allah Yar under Sections 302 and 34, P .P.C.
2. Relevant facts for the disposal of the instant appeal are that on 31.08.2014 on the complaint of Bashir Ahmed, son of Noor Muhammad the aforesaid FIR was lodged with the averment that on the said date at 2:30 am the complainant along with his brother namely Rasool Bakhsh and cousin Muhammad Amin resident of Daulat Ghari were present in complainant's house. At about 2:30 am the complainant along with other family members were awoken on barking of the dogs, when they saw in the light of bulb that accused persons namely Bashir Ahmed, Imam Bakhsh and Mehboob, all sons of Kamal Din armed with deadly weapons entered in his house and started firing upon his brother namely Wazir Khan, who was sleeping at his cot. The complainant further , averted that his brother sustained injuries and died at the spot and thereafter the accused persons escaped away . The motive behind the occurrence was that a few days ago, hot words exchange took place between the deceased and father of the accused persons Kamal Din. Hence, the crime report.
3. After completion of the usual investigation, challan of the case was submitted before the trial Court. After full dressed trial, the trial court acquitted the accused/respondents vide impugned judgment dated 30.04.2015, where- after the instant appeal has been filed.
4. We have heard the learned counsel for the parties and have gone through the record of the case with their able assistance.
5. A variety of reasons weighed with the learned trial Judge to acquit the accused/respondents from the charge, which includes; major contradictions between the ocular and the medical evidence, the prosecution witnesses were chance witnesses and the base of a case against accused/respondent with no evidence. None of the reasons cited by the learned trial Judge has been found by us as artificial or unrealistic. Even otherwise on independent analysis, the genesis of prosecution case does not appear to be free from doubt. The record transpires that the alleged occurrence took place on 31.08.2014 at 2:30 am and the FIR was lodged at 4:00 am with a delay of one and a half hours without any 'explanation despite the fact that the distance between the place of occurrence and the police station is only four kilometers.
6. The prosecution in order to prove its case produced PW-1 who is complainant of the case as well as eyewitness of the occurrence and is also the brother of the deceased and PW-2 Rasool Bakhsh who is eyewitness and cousin of the deceased. Only the above two witnesses were produced by the prosecution. Both of them stated in their statement that on the day of occurrence, i.e. on 30.01.2014 at 2:30 am the accused/respondents namely Bashir Ahmed, Imam Bakhsh and Mehboob, equipped with firearms entered the house of the complainant and made firing upon the deceased Wazir Khan who sustained injuries and they identified the accused persons in the light of the electricity bulb. Both the witnesses stated that they along with one Muhammad Amin and the deceased Wazir Khan were sleeping in the courtyard of the house of the deceased, when the accused persons came and made firing upon the deceased. During cross-examination they stated in their statements that the accused made firing upon the deceased from a close range of 5/6 steps and they were also present with the deceased. It has also been alleged by the witnesses that all the accused made firing upon the deceased for two or three minutes.
7. The mode and manner of the occurren ce are shrouded in mystery and if the accused/respondents were to kill the deceased then why they left the witnesses alive as they had ample opportunity to do away with them. The witnesses were within the firing range of the accused/respondents that too when allegedly the accused were armed with pistols and Kalashnikovs, which were automatic weapons. So escaping unhurt of the witnesses does not appeal to the prudent mind despite the fact that the distance between the deceased, the witnesses and the accused/respondents were given as 5/6 steps, from such a short distance how the witnesses remained safe.
The witnesses stated in their statement that they identified the accused in the light of electricity bulb while perusal of the site plan Ex.P/7-B reveals that no light bulb was shown in the same. Moreover , during the investigation, no light bulb was taken into possession by the investigation officer; hence identification of the accused/respondents is doubtful. Reliance in this regard is placed on the cases titled as Sardar Bibi v. Munir Ahmed and others 2017 SCMR 344 , Rashid Khan v . The State (2017 SCMR 564 ) and Gulfam and another v . The State (2017 SCMR 1 189).
8. The alleged occurrence took place at the house of the deceased situated at Goth Haji Noor Muhammad, however , the complainant/PW -1 and PW-2 Rasool Baldish are residents of Daulat Ghari. They are not the residents of the locality/place of occurrence. When they appeared before the court, they explained that they were factually not residing at the place of occurrence, but they stayed with the deceased overnight. Both of them were chance witnesses. The law related to the above witnesses is well settled. Reference may be made to Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1442 ) wherein the Hon'ble Supreme Court of Pakistan held as under: "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business , place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily , is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
9. In the instant case PW-1, namely Bashir Ahmed and PW-2 Rasool Bakhsh could not justify their presence at the time of occurrence. Both the witnesses were residents of Daulat Ghari. They claimed that they came to see the deceased but did not tell why and more importantly did not give any reasons for staying overnight. In the absence of some confidence-inspiring explanation regarding their presence at the crime scene, the chance witnesses and their testimony can simply be termed as suspect evidence.
10. The medical evidence in a conflict with the ocular evidence, and the seat of injuries can hardly be explained that they were caused by using firearms, i.e. Kalashnikov and pistols. When the PW-5 Dr. Muhammad Din, the medical officer who examined the deceased appeared before the court and stated that he noticed thirteen injuries on the dead body of the deceased. He stated during cross-examination that all the injuries sustained by the deceased Wazir Khan were pellet injuries, the injuries were 1 cm in diameter and such injuries can be caused due to shotgun .12 bore. But on the other hand, when PW- 1 and PW-2 appeared before the court, they stated the accused persons were equipped with Kalashnikov and pistols and they made firing upon the deceased. None of the witnesses stated that any of the accu sed was armed with 12 bore shotgun. The investigation officer recovered eight bullet empties of Kalashnikov and nine bullets empties of T.T pistol .30 bore from the place of occurrence, which were taken into possession through recovery memo Ex.P/3-D in the presenc e of PW-3. No empties of a .12 bore shotgun taken into possession by the investigation officer from the place of occurrence. All the aforementioned shortcomings lead us to anomaly between the medical and ocular evidence, which can legitimately be resolved in favour of the defense. Reliance is placed on the case of Abdul Jabbar and another (2019 SCMR 129) wherein it was observed as under: "11 .... It is the settled principle of law that once a single loophole is observe d in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
Surprisingly the accused/respondent Imam Bakhsh was arrested, And during the investigation, lie disclosed about the commission of the offence and 30 bore pistol was recovered from his possession from the bushes in the jungle on 21.09.2014 and one T.T pistol was recovered on the pointation of the accused/r espondent Mehboob Ali from his house. Both the pistols and crime empties were sent to firearm expert who gave a positive report, i.e. Ex.P/7-G.
How can it be possible that according to the medical witness, i.e. PW-5 the deceas ed received injuries by means of a 12 bore shotgun but the investigation officer took bullet empties of Kalashnikovs and T.T pistols from the crime scene and sent the alleged crime weapons recovered from the accused/respondents along with bullet empties of Kalashnikov and pistol to FSL who gave a positive report in this regard and no empties of the shotgun were recovered from the place of occurrence? Even otherwise the occurrence took place on 31.08.2014 when the investigation officer secured the empties from the place of occurrence, while the accused/respondents were arrested on 21.09.2014, when the pistol was recovered, which was sent to the firearms expert on 19.11.2014 along with the bullet empties together after three months' delay for analysis without any reasons as to where the recovered material was kept and in whose custody . The sending of a firearm along with empty shell lost its evidentiary value, as such could not be considered as corroborative evidence. In this regard, reliance is placed on Haroon Shafique v . The State (2018 SCMR 21 18).
11. The complainant forwarded the motive that few days from the occurrence a quarrel took place between the father of the accused and the deceased and due to which the accused committed murder of the deceased, however , no FIR whatsoever has been produced about the said alleged quarrel between the father of the accused and the deceased. Throughout the investi gation, nothing was brought on record to prove the motive, but the motive is always a double-edged weapon which cuts both ways and this View was consistently held by the Hon'ble Supreme Court, the case titled Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), wherein it is held that: "The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse."
12. A keen look of the record unveils that the case in hands pertains to an occurrence, having taken place on 31st August 2014 at 2:30 am at night, during which one person namely Wazir Khan (deceased) lost his life. The burden of this murder was placed upon the should ers of four persons out of whom three were nominated whereas one was unknown who was subsequently nominated as Ali Nawaz. Out of the four accused persons the accused Bashir Ahmed, Imam Bakhsh and Mehboob were real brothers, whereas Ali Nawaz is a cousin of the accused/respondents. We are not oblivious of the fact that the dilemma of false implication is unfortunately well embedded in our system of the criminal investigation, prompting a litigant to implicate innocents along with guilty in homicide cases through the tool of the wider net. This means calls for making appraisal of evidence in such cases with extreme guardedness.
13. We have re-appraised the material available on record so as to determine, whether the impugned judgment of acquittal, recorded by the trial court, suffers from any illegality of legal infirmity or is based upon misreading and non-reading of the evidence. In our considered view, the impugned judgment does not suffer from any legal infirmity to warrant interference by this court. Therefore, we are of the considered view that the trial Court has passed a well-reasoned order , which is neither perverse or fanciful nor ridiculous. Rather the court has given valid reasons for its conclusion as there is absolutely nothing on record to connect the respondent/accused with the offence for which they have been charged in the alleged FIR.
14. It is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting in miscarriage of justice. It cannot be set aside merely on the possibility of a contra view .
15. In our humble view, the trial court has considered all the material present on record properly and arrived at the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this court.
The appellant has filed to point out any defect in the impugned judgment passed by the trial court; therefore, the appeal being devoid of merits is accordingly dismissed.