SADIQ MAHMUD KHURRAM, J.:- This appeal has been preferred on behalf of Farhan Saleem assailing the judgment dated 02.11.2019 passed by the learned Additional Sessions Judge/Model Criminal Trial Court, Rawalpindi, whereby the respondents No.1 to 3 namely Anwar Hussain ,Azhar Hussain and Ghazanfar Mehmood alias Zafri were acquitted of the charges in case F.I.R No.53 of 2017 dated 28.01.2017 registered in respect of offences under sections 302, 336,337-L(2),148 and 149 P.P.C. at the police station Rawat, District Rawalpindi.
2. The prosecution case, according to the appellant as narrated by him in his statement before the learned trial court, was as under:- "Stated that after completion of my graduation I have been searching for job and usually remained at my house. On 28.01.2017, at about 3:15 pm, I left my house in order to take Roti from Tandoor on my bike and at about 3:20 pm when I reached at Tanki Wala Chowk. Whereupon, I saw Carry Daba No. RI-486 of white colour, which was being driven by Wajid Hussain accused and Ghazanfar alias Zafri was present on the front seat while on the rear seat, Zeeshan Ali and Mst. Tahira Jabeen were seated. Due to collision of said Carry Daba, I fell from my motorcycle. Accused Ghazanfar and Zeeshan after alighting from vehicle began to beat me when I stepped back in order to save myself, accused Ghazanzar threw a stone hitting my teeth and I got injured. Accused Zeeshan also threw stone which hit on my left finger and left knee. In the meanwhile, accused Mst. Tahira Jabeen made telephonic call and accused Azhir Hussain armed with rifle 12- bore, Anwar Hussain armed with rifle 12-bore, and Mubashir Hussain armed with repeater alongwith two unknown accused persons, armed with pistols 30 bore to whom I can identify upon seeing, reached at the spot. I, while running, reached graveyard near to my house then my brother Asad Saleem and my Mamoo Tariq Aziz Siddiqui and Shakeel Abass reached over there in order to rescue me. In the meanwhile, accused Ghazanfar raised lalkara that all of them be done to death. Upon this, Azhar Hussain accused present before this court, made a straight fire of rifle 12-bore hitting my brother upon his face while accused Anwar Hussain, present before this court, made fire shot of rifle 12-bore which hit my brother upon his chest who after sustaining severe injuries, fell on the ground. Accused persons Mubashir and Mazhar also made fire shots and when people of the village attracted at the spot, all the accused persons decamped from the crime scene upon Carry Daba. The occurrence was witnessed by me my Mamoo Tariq Aziz Siddique.Shakeel Abbas and people of the village. We shifted my brother Asad Saleem on private vehicle to Bagga Sheikhan hospital who succumbed to the injuries on the way to hospital.
The motive behind the occurrence was that I contracted love marriage with one Nargis Batool d/o accused Azhar Hussain present before this court and subsequently, who did not accept this relationship and said Nargis Batool got decree of khulla from the court. Due to this grievance and grudge accused Azhar Hussain alongwith all accused persons, in furtheranc of their common object, being connived, murdered my brother Asad Saleem and injured me. I made oral statement to the I.O, which was reduced into writing as Ex-PM/1."
3. After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, and the accused was sent to face trial. The learned trial court framed the charges against the respondents No.1 to 3 namely Anwar Hussain,Azhar Hussain and Ghazanfar Mehmood alias Zafri under sections 302, 336,337-L(2),148 and 149 P.P.C. on 27.05.2017. The respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri pleaded not guilty and claimed trial. The prosecution examined as many as fifteen witnesses in order to bring home the charges against the accused. The ocular account of the occurrence was furnished by the appellant namely Farhan Saleem who appeared as (PW-12) and Shakeel Abbas (PW-14) . Dr. Arshad Nazir (PW-4) conducted the post mortem examination of the dead body on 28.01.2017. Dr. Adnan Asad (PW-2) stated that on 28.01.2017 he medically examined the appellant and issued the Medico Legal Examination Certificate (Exh.PC).
Muhammad Arif, SI (PW-13) investigated the case from 28.01.2017 till 25.05.2017, arrested the respondent No.1 on 18.02.2017, arrested the respondent No.2 on 07.02.2017 and arrested the respondent No.3 on 16.02.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. On 26.06.2019, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Tariq Aziz Siddique as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PDD and Exh. PEE). After the closure of prosecution evidence, the learned trial court examined the respondents No.1 to 3 namely Anwar Hussain ,Azhar Hussain and Ghazanfar Mehmood alias Zafri under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri replied that they had been involved in the case falsely and were innocent. The learned trial court, after taking into consideration the entire material brought on the record, came to the conclusion that the prosecution had failed to establish its case against the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri beyond a reasonable doubt.
Accordingly, the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri were acquitted of the charges vide judgment dated 02.11.2019, passed by the learned trial court, hence, the instant appeal.
4. The learned counsel appearing on behalf of the appellant and the learned Deputy Prosecutor General contended that sufficient incriminatory evidence was available on the record establishing the guilt of the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri, therefore, the learned trial court was not justified in acquitting them.
5. The learned counsel for the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri submitted that as the prosecution failed to prove the case therefore the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri were rightly ordered to be acquitted by the learned trial court.
6. We have heard the learned counsel appearing on behalf of the appellant, learned counsel for the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri, the learned Deputy Prosecutor General and have gone through the record of the case with their assistance.
7. The learned counsel for the appellant has vehemently argued that as Farhan Saleem who appeared as (PW-12) was injured during the occurrence, therefore, his statement could not have been doubted in any manner by the learned trial court. The stamp of injuries on the person of a witness may be proof of his presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries received by a witness during an incident do not warrant acceptance of his evidence without scrutiny. At the most, such traumas can be taken as an indication of his presence on the spot, but still, his evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose nothing but the truth. Even otherwise, it is not the simple presence of a witness at the crime scene but his credibility, which makes him a reliable witness. It has been held by the august Supreme Court of Pakistan repeatedly that the facts that an injured witness narrates are not to be implicitly accepted rather, they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCM R 527) where at page 534 the august Supreme Court of Pakistan , was pleased to hold as under: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State(2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that the presence of injuries does not stamp a witness to be a truthful one and observed as under :-.
"12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:-- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. namely,Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."
In the case of Mehmood Hayat supra at page 1417, it has been observed as under:-- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."
In the case of Mehmood Ahmed supra, this Court at page 7 observed as under: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."
13. From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
With this principle of appreciation of evidence in our minds that an injured witness cannot be presumed to be also a truthful witness, we have proceeded to examine the statement of the appellant, namely Farhan Saleem, who appeared as (PW-12). According to the statement of the appellant, on the day of occurrence, he left his home at 03.15 p.m., and when he arrived at Tanki Wala Chowk, respondent No.3, namely Ghazanfar Mahmood alias Zafri, came there on a vehicle driven by Wajid Hussain, wherein Zeeshan Ali and Mst. Tahira Jabeen were also seated and hit the appellant with the said vehicle, resulting in the falling of the appellant from his motorcycle, however, thereafter, respondent No.3 Ghazanfar Mahmood alias Zafri hit the appellant with a stone on his teeth, whereas Zeeshan hit the appellant on his finger of left hand and knee of left leg and in the meanwhile Mst. Tahira Jabeen called respondents No.1 and 2, namely Anwar Hussain and Azhar Hussain, who came to the said place while armed with guns, which resulted in the appellant running away from the said place, however, when he arrived near the graveyard, the Respondent No.1 and 2 namely Anwar Hussain and Azhar Hussain fired at Asad Saleem (deceased). According to the statement of the appellant, he was injured by respondent No.2, namely Ghazanfar Mahmood alias Zafri and Zeeshan, when he was present near the Tanki Wala Chowk, however, it is also a fact that Muhammad Arif, SI (PW-13), the Investigating Officer of the case, did not take into possession any blood-stained earth from the place where the appellant had been injured. Moreover, Dr. Saima Mukhtar (PW-1) observed that the injuries which the appellant had suffered could have been a result of falling from the motorcycle after being hit. Dr. Adnan Asad (PW-2) had also observed that there were grazing wounds on the finger and leg of the appellant, which wounds by their own description were not a result of the appellant being hit by any stone but were a result of the appellant falling from a motorcycle. Even the appellant admitted during cross-examination that after being hit by the vehicle he had fallen on the road and stated as under:- "After hitting the carry van my motorcycle had fallen on the right side and right indicator was broken. I also fell down on the road alongwith my motorcycle "
It is also a fact that there was allegation against Zeeshan that he had hit the appellant with a stone, however, the said Zeeshan was declared to have been falsely involved by the appellant and was not even summoned to face the trial of the case. We have also noticed that the appellant in his statement recorded by the learned trial court never stated that he was taken to the hospital after the occurrence or that he was examined by any Medical Officer. We have already reproduced the statement of the appellant got recorded by him in the learned trial court in Para 2 of the judgment and a perusal of the said statement of the appellant makes it is clear that the appellant himself never stated that he was taken to the hospital. When the appellant himself never stated that he was taken to the hospital for medical examination, then we, on our own, cannot presume the said fact. It is also a fact of the prosecution case that in the scaled site plan of the place of occurrence (Exh.PJ) as prepared by Mujeeb-ur-Rehman Patwari (PW-6), the place where the appellant had suffered from the injuries had not been marked.
8. We have also noticed that according to the appellant he was injured at Tanki Wala Chowk, however, the appellant claimed that thereafter he started running towards his home but when he arrived at the graveyard, the accused caught up with him but instead of firing at him, the accused fired at Asad Saleem (deceased). We have also noted that according to the admission of the appellant and the other witnesses, there was a huge distance between the Tanki Wala Chowk and the place where the incident of firing at Asad Saleem (deceased) took place. According to Muhammad Arif, SI (PW-13), the Investigation Officer of the case, the distance between the Tanki Wala Chowk and the place where the incident of firing at Asad Saleem (deceased) took place was much as 600 metres, whereas according to the statement of Mujeeb-ur-Rehman Patwari (PW-6), the said distance was 1.5 kilometre. Muhammad Arif, SI (PW-13), the Investigation Officer of the case during cross-examination, stated as under:- "Tanki Chowk is at a distance of about 600 meters from the scene of crime ie, graveyard. "
Mujeeb-ur-Rehman Patwari (PW-6), however, gave the said distance as under:- "The distance between water tank chowk and the place of occurrence is more than 1.5 Kilometer. "
Shakeel Abbas (PW-14) gave the distance between the Tanki Wala Chowk and the place where the incident of firing at Asad Saleem (deceased) took place as under:- "The place of occurrence ie. graveyard is at a distance of ten minutes walk from Tanki Wala Chowk."
The implausibility of the narrative of the incident as given by the appellant, making the same not worthy of any reliance, is proved by the fact that the appellant stated that he ran away from the place where he had been hit while on foot, whereas the accused, who had arrived at the place of hitting of the appellant while riding a vehicle , instead of pursuing the appellant on their own vehicle, continued to follow him on foot. Most importantly, according to the appellant, when the accused had caught up with the appellant, they, instead of firing at the appellant, fired at Asad Saleem (deceased). This very improbability of the narrative of the occurrence as stated by the appellant is in itself sufficient to reject the same.
9. It is also a fact that the houses of the appellant and the witness namely Shakeel Abbas (PW-14) were not marked in the scaled site plan of the place of occurrence (Exh.PJ) as prepared by Mujeeb-ur-Rehman Patwari (PW-6) and the unscaled site plan of the place of occurrence (Exh.PR) as prepared by Muhammad Arif, SI (PW-13). During cross-examination, Mujeeb-urRehman Patwari (PW-6), admitted as under:- "It is correct that I have not shown the house of deceased in Ex.PJ and I was required to show it in site plan if it was situated there. Similarly, I have also not shown the complainant in site plan EX.PJ. "
Muhammad Arif, SI (PW-13) admitted during cross-examination, as under:- "I have not shown the house of complainant in site plan Exh-PO. "
Shakeel Abbas (PW-14) stated that the distance between the Tanki Wala Chowk and the house of the appellant was as much as five minutes ride on a motorcycle or about 500 metres whereas it took ten minutes of walking to arrive at the place where the incident of firing at Asad Saleem (deceased) took place from the Tanki Wala Chowk. During cross examination Shakeel Abbas (PW- 14) stated as under:- "Tanki Chowk is at 05 minutes ride on a motorcycle from the house of Farhan Saleem. Said distance may be half kilometer"
In this scenario it has not been explained at all that how Shakeel Abbas (PW-14) came to know about the happening of the incident and also arrived at the place where the incident of firing at Asad Saleem (deceased) took place.
10. The final nail in the coffin of the prosecution case proved to be the statement of the appellant himself ,when during cross examination , he stated that after he had been hit by the vehicle of the accused, he went back to his home, forgetting that according to his statement ,he had not gone to his home after being hit by the vehicle rather he was chased from the Tanki Wala Chowk and arrived at the place where the incident of firing at Asad Saleem (deceased) took place. During cross-examination, the appellant stated as under:- "After 4/5 minutes of my accident with the carry van, I went to my house. I had not gone to the Police Station on said date" (emphasis supplied)
A scrutiny of the statements of the appellant and prosecution witness namely Shakeel Abbas (PW- 14) reveals irreconcilable contradictions between the said witnesses regarding the sequence of the incident and various details of the same and we have come to the irresistible conclusion that no reliance can be placed on the statements of the appellant and prosecution witness namely Shakeel Abbas (PW-14) and learned trial court rightly rejected the same.
11. It is also a fact of the case of the appellant himself that the main target of the assailants was the appellant, however, despite his claimed presence at the place of occurrence, he was let off and in his place his brother Asad Saleem (deceased) , who admittedly had no enmity with the accused, was fired at and killed . According to the appellant, the motive of the occurrence was that the appellant had married Nargis Batool, the daughter of the respondent No.2 namely Azhar Hussain on 30.05.015, however as the respondent No.2 namely Azhar Hussain was not happy over the said marriage therefore Nargis Batool left the appellant and filed a suit seeking dissolution of marriage as against the appellant and this was the only fact that the occurrence took place. In this scenario, it is hard to believe that the appellant would have been shown the courtesy of not being harmed at all during the incident in which Asad Saleem (deceased) was fired at twice and died, when the appellant should have also been the target of the assailants. The appellant had also claimed that it was him who was followed by the assailants to the place of occurrence however remained unable to explain that then why, when the accused had caught up with him, they did not direct their firing at him but rather targeted Asad Saleem (deceased). During the incident in which Asad Saleem (deceased) was fired at twice and died , the appellant did not receive even a single scratch on his body rather was not even targeted at all. If the appellant had been present in the view of the assailants, then he would not have been spared. Blessing the appellant with such an incredible consideration and showing him such favour, the person with whom the assailants had a direct dispute with, is implausible and opposed to the natural behaviour of any accused. The august Supreme Court of Pakistan, in its binding judgments, has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses, but the accused did not cause any harm to them, notwithstanding them being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan, in case Tariq Mehmood v. The State and others (2019 SCMR 1170), has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum & others v. Sajjad & others (2017 SCMR 596) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the F.I.R., all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other P.W.s were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e- Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
12. We have also noted with disquiet that the postmortem examination of the dead body of the deceased was conducted with much delay. According to the Post Mortem Examination Report (Exh.PG) as well as the statement of Dr. Arshad Nazir (PW-4) there was a lapse of about 6-8 hours between the death and the post mortem examination of the dead body of the deceased. Dr. Arshad Nazir (PW-4) in his statement before the learned trial court, stated as under:- "TIME BETWEEN INJURY AND DEATH: Immediately TIME BETWEEN DEATH AND POST MORTEM: Approx 6 to 8 hours.
The dead body received by me at 9:00 pm and I conducted postmortem at 9:30 p.m. If there is any delay in conducing postmortem, the same may be due to police and could not be attributed to me."(emphasis supplied)
The perusal of the Post Mortem Examination Report (Exh.PG) as well as the statement of Dr. Arshad Nazir (PW-4) clearly establishes the fact that the post mortem examination of the dead body of the deceased was delayed. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" (2019 SCMR 956) has held as under: "According to the Doctor (PW-120), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State" (2019 SCMR 1068) has held as under: "More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."
13. We have also noted that recoveries of the weapons from the respondents No. 1 to 3 cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the said recoveries which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. The provisions of this section, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that
14. We have also noted that the appellant and the prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri to have committed the Qatl-i-Amd of the deceased.As mentioned above, the motive of the occurrence was that the appellant had married Nargis Batool, the daughter of the respondent No.2 namely Azhar Hussain on 30.05.015 ,however as the respondent No.2 namely Azhar Hussain was not happy over the said marriage therefore Nargis Batool left the appellant and filed a suit seeking dissolution of marriage as against the appellant and this was the only reason that the occurrence took place however even when the appellant was followed by the assailants to the place of occurrence , they did not direct their firing at him rather targeted Asad Saleem (deceased). This fact proves that the motive of the occurrence as alleged was not proved.
15. In the light of the above discussion and facts, it is clear that the prosecution failed to prove the case against the respondents No.1 to 3 namely Anwar Hussain , Azhar Hussain and Ghazanfar Mehmood alias Zafri. It is important to note that according to the established principle of the criminal administration of justice, once an acquittal is recorded in favour of the accused facing criminal charge, he enjoys double presumption of innocence, therefore, the court is competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as "Ghulam Sikandar and another Versus Mamaraz Khan and Others" (PLD 1985 Supreme Court 11) wherein it has been held as under: "The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
Reliance is placed on the case of "Muhammad Inayat Versus The State" (1998 SCMR 1854) wherein it has been held as under: "The judgment of acquittal qua Muhammad Yousaf, Muhammad Sated (sic) and Muhammad Nawaz cannot, in the given situation, be termed as perverse or foolish inasmuch as the view having been taken by the High Court can possibly be taken for acquitting them in the peculiar facts and circumstances of this case. It cannot be said that the impugned judgment of the High Court acquitting Muhammad Yousaf and two others is fanciful, artificial, shocking or ridiculous. 1t is based on convincing reasons"
The august Supreme Court of Pakistan in the case of "Mst. Sughran Begum and another Vs. Qaiser Pervaiz and others" (2015 SCMR 1142) has held as under: "On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course."
16. In view of the above, the conclusions arrived at by the learned Additional Sessions Judge/Model Criminal Trial Court, Rawalpindi vide judgment dated 02.11.2019 have been found by us to be such that any court could have arrived at the same upon a fair assessment of the evidence available on the record. In these circumstances, we have found no occasion of interference with the impugned judgment of acquittal passed by the learned Additional Sessions Judge/Model Criminal Trial Court, Rawalpindi in respect of the respondents No.1 to 3 namely Anwar Hussain, Azhar Hussain and Ghazanfar Mehmood alias Zafri.
Hence, this appeal fails and is hereby dismissed. The notices issued to the respondents No.1 to 3 namely Anwar Hussain ,Azhar Hussain and Ghazanfar Mehmood alias Zafri by this Court are withdrawn.