' MUHAMMAD MUNIR KHAN, J.-This Criminal Appeal arises from the judgment of learned Sessions Judge, Rawalpindi, whereby, he on 25th May, 1967 acquitted Itebar respondent of the charges under section 302/ 307, P. P. C. For the murder of Mst. Ghulam Fatima and murderous assault on Mst. Sardar Begum P. W.
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2. The occurrence took place at about evening time on 26th May, 1966 in the house of Ghulam Fatima deceased in village Habtal at a distance of six miles from Police Station, Chauntra. The F. I. R.
Exh. P. A. Was lodged by Mubarik Ali P. W. 11 son of the deceased on 27th May, 1966 at 4-30 a. m. And was recorded by Niaz Muhammad Head Clerk P. W.
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3. The motive as alleged by the prosecution was that on 25th May, 1966 Mst. Farida P. W. t3, the daughter of the deceased was present outside Government Girls School, Sihal. Etabar Khan respondent, a shopkeeper induced her to have her requirements from his shop, free of charges. On the same day when she on her way back to her house, happened to pass by the shop, the respondent/accused repeated his offer telling further that he was always available for any service to her. Mst. Farida felt annoyed and brought the incident to the notice of her mother, the deceased.
On 26th May, 1966 the deceased not only quarreled with the respondent and abused him but also approached Miss R. S. Burni P. W. 2 the Headmistress of the school and complained against the respondent. The respondent became annoyed and in the presence of Khuda Dad P. W. 16 declared that he will deal with the deceased. As far the main occurrence, at the eventful time, Mubarik Ali P.
W. 11, Mst. Sardar Begum P. W. 12, Mst. Farida P. W. 13 and Ghulam Fatima deceased were present in the house. The deceased and Mst. Sardar Begum were baking loaves at oven in the courtyard. The respondent duly armed with a gun arrived at the entrance of the house. Aiming the gun at Ghulam Fatima, he shouted that since the deceased had defamed him, he would teach her lesson and opened fire at her. The shot hit in her right flank. The pellets after having pierced through the body of Ghulam Fatima had hit Mst. Sardar Begum P. W.
12. Ghulam Fatima expired on the spot. The occurrence was seen by Mubarik Ali P. W. 11, Mst. Farida P. W. 13, Muhammad Shafi P. W. 14 and Khuda Dad son of Nawab (not produced).
4. On 28th May, 1966 at 11-15 a. m. Dr. Mehtab Akhtar P. W. 15 conducted post-mortem examination on the dead body of Mst. Ghulam Fatima and found following the injuries :-
(i) A circular wound of entrance 1/4" x 1/4" on the outer side of right upper arm 2i" above the elbow.
(ii) A wound of exit 2" x on the inner side of right upper arm 1" above the elbow.
(iii) A circular wound of entrance r x r on the outer side of right side of chest at the level of 9th rib, which was fractured.
(iv) A wound of exit 1* x-14-" on the outer part of left side of chest at the level of 10th intercostal space. On opening the body, the Doctor found that the liver and stomach were ruptured. In his opinion, the cause of death was shock and haemorrhage resulting from injury to liver and stomach caused by injuries Nos. 3 and 4, which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2 and 3 were grievous. All the injuries were ante-mortem and were caused by the fire-arm. The time between the injuries and the death was within half an hour and between death and post-mortem was about 36 hours to 48 hours.
' The Doctor had also examined Mst. Sardar Begum on 27th May, 1966 at 12-30 a. m. He found two circular wounds on the upper part of the back of right side of her chest. The injuries were caused by fire-arm ,and were simple in nature. The probable time between the injuries and the medical examination was within 8 hours. In cross-examination, the Doctor stated that the distance between the fire-arm and the victim was more than two yards as there was no blackening, etc. He further stated that the injuries on the person of the deceased could be the result of more than one shot.
5. The respondent was arrested on 28th May, 1966 by Ch. Muhammad Sharif S. H.
0. P. W.
18. He led to the recovery of gun P. 5 from a shop jointly occupied by him and his partner Mehr Khan. It was a licensed gun of his partner Mehr Khan. The gun was made into a sealed parcel vide Memo. Exh. P. M. It may be noted at this juncture that no empty having been recovered from the spot, the recovery of gun P. 5 is of no consequence.
6. The respondent when examined under section 342, Cr. P. C. Denied all the incriminating circumstances. He raised plea of false implication on account of enmity and tendered documents D. A., D. B. And D. C. In his defence.
7. In order to prove its case, the prosecution examined as many as 18 witnesses, out of whom Mubarik P. W. 11, Mst. Sardar Begum P. W. 12, Mst. Farida P. W. 13 and Muhammad Shafi P. W. 14 have given the ocular account of the occurrence. They stated that in their view the respondent had fired a shot from his gun which caused the death of the deceased and injury to Mst. Sardar Begum P. W.
12 as well. Mubarik P. W. 11, Mst. Farida P. W. 13, Jahan Dad P. W. 15 and Khuda Dad P. W. 16 have deposed about the motive as detailed above. The rest of the evidence is more or less of formal nature.
8. The trial Court found that the F. I. R. In the case was belated one ; that the eye-witnesses were partisan ; that the ocular account was in conflict with the medical evidence and that the ocular testimony was not worth-reliance. The trial Court having discarded the statements of Jahan Dad and Khuda Dad, believed motive relying on the direct evidence furnished by Mst. Farida P. W.
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9. The learned A. A.-G. Contended that the prosecution has proved its case against the respondent through reliable evidence ; that Mubarik Ali, Mst. Farida are the natural witnesses ; that presence of Mst. Sardar Begum is proved by the fact of injury on her person ; that the ocular testimony does not suffer from material contradictions, omissions and improvements ; that the delay in the F. I. R.
Stands satisfactorily explained that Muhammad Shafi P. W. 14 has no serious enmity with the respondent ; that there is no major conflict between the eye-witnesses and the medical evidence and that the reasons given by the learned Sessions Judge for disbelieving the eye-witnesses are not cogent.
' Conversely, Malik Muhammad Jaffar, the learned counsel for the respondent supported the judgment of the trial Court and submitted that in the circumstances of the case, it is not a fit case for interference with the judgment of acquittal.
10. Since the appeal was admitted to consider the reasons given by the learned trial Court for disbelieving the ocular evidence and the appeal being in continuation of the original proceedings, the entire matter re-opens,. So in order to examine the correctness of judgment and of the reasons for the acquittal, we propose to re-appraise the evidence in the light of the arguments addressed by the learned counsel for the parties.
' Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of appeal against acquittal that on the acquittal of an accused person, the presumption of his innocence becomes double ; that before an order of acquittal is reversed, it has to be shown that the judgment of the trial Court was unreasonable or manifestly wrong ; that if on the evidence, two conclusions are equally possible, then order of acquittal should not be reversed ; that the judgment of acquittal shall not be interfered with unless the judgment is perverse resulting in miscarriage of justice and that for interference strong and exceptional grounds are required we proceed to assess, weigh and evaluate the prosecution case particularly the ocular testimony. Starting with the foundation of the case we find that the occurrence took place at about evening time on 25th May, 1966. Although the Police Station was at a distance of six miles yet F. I. R. Was lodged at 4-30 a.
In. i,e, after about nine hours of the occurrence. The explanation given by the complainant that he could not proceed to the Police Station immediately as none was willing to accompany him, not having been mentioned in the F. I. R. Appears to be an afterthought. It is in the evidence that three lambardars of village, Jhan Dad retired Foot Constable, the relatives and neighbourers of the deceased had arrived at the spot within half-an-hour of the occurrence. In these circumstances, it does not appeal to reason that none was prepared to accompany the complainant to the Police Station for lodging the F. I. R. The explanation given by the complainant at the trial, is contradictory to the F. I. R. Wherein the complainant had stated that he could not come for report during the night on account of fear. For these reasons, we are convinced that the trial Court has rightly observed that the F. I. R. Was lodged belatedly and there was no reasonable explanation for the delay. We are of the opinion that had the culprit been actually identified, then there is no reason why he should not have been charged within 2/3 hours of the occurrence, the report was lodged after nine hours.
In view of this delay, the ocular evidence has at least to be considered with utmost caution. Be that as it may, the foundation of the case is certainly not concrete. Now we proceed to examine whether on a weak foundation like the present one, the prosecution had been able to raise structure strong enough to face the judicial scrutiny and test. This brings us to the main pillar of the prosecution case i,e, the ocular evidence. Having appreciated the evidence with care and caution, we find that it gives smell of party faction, enmity against the respondent and inclination towards the deceased. The four eye-witnesses namely Mubarak Ali P. W. 11, Mst. Sardar Begum, P. W. 10, Mst.
Farida 9 P. W. 13 and Muhammad Shafiq P. W. 14 are either related or partisan witnesses and have some motive for implication of the respondent falsely or on account of suspicion that he might have done away with the deceased. The material and important question for determination therefore, is whether in fact they had seen the culprit firing at the deceased and thereby causing his death and injuries to Mst. Sardar Begum P. W. And were in a position to identify the offender. No doubt, Mubarik Ali P. W. 11 and Mst. Farida P. W. 13 had probable cause to be present in the house at the time of the occurrence and the fact of the injury on the person of Mst. Sardar Begum also proves her presence at the eventful time, but presence in the house does not necessarily prove that they had in fact witnessed the occurrence. In the instant case, there are reasons to doubt that they in fact saw the respondent firing at the deceased. Reasons being that the offender had not entered in the house ; that he fired shot from behind a wall ; that only one shot was fired within less than a minute ; that the offender had run away immediately ; that the location of the injury of Mst.
Sardar Begum P. W. 12 indicates that her back of the chest was towards the offender when she received the injury and as such the possibility that she could not see the culprit is very much there ; that the ocular account with regard to the distance from where the shot was fired at the deceased is in direct conflict with the medical F evidence inasmuch as Mubarik Ali P. W. 11 and Mst. Farida P. W.
13 stated that the shot was fired from a distance of one to two feet whereas the medical evidence excludes the probability of the shot having been fired at from this distance; that in order to bring his evidence in conformity with the statement of the Doctor, Muhammad Shafi P. W. 14, a chance witness, has improved upon his previous statement. The shot having not been fired from close and there being no injuries on Mubarik All P. W. 11 Mst. Farida P. W. 13, there is no judicial certainty and circumstantial guarantee of their presence just near the deceased as stated by them and that in view of the incident of teasing with the girl, the three eye-witnesses could easily be induced to involve the respondent on account of suspicion. There is no doubt that Mst. Sardar Begum was present but there are circumstances which make it unsafe to accept her claim that she had seen the respondent firing at the deceased inasmuch as her back was towards the culprit when she received injury ; that she lost consciousness immediately thereafter ; that she remained senseless for eight days and when she regained senses, the F. I. R. Had already been recorded, we feel that in situation like that, there was no alternative for her but to support the story as given in the F. I. R. It may be noted that her statement was recorded on 2nd June, 1966.
11. On independent assessm ent of the ocular testimony, we find that the same is not in consonance with the probabilities, does not fit in with the other evidence and attending circumstances. The powerful engine invented for the discovery of the truth have successfully elicited inherent probabilities in the prosecution case ; material discrepancies and major contradictions in the statements of eye-witnesses which make their statements "not confidence-inspiring".
12. As far the motive believed by the trial Court, we are inclined to agree with him that conviction cannot be based on motive alone. Further the motive being a double edged weapon, cuts both ways, which way it actually cuts depends upon the circumstances of each. Case. The motive in the instant case could also be a reason to involve the respondent on account of suspicion that he might be the culprit.
13. For what has been stated above, we are of the view that the reasons given by the trial Court for disbelieving the ocular evidence and for the acquittal of the accused/respondent are not only supported from record but also are sound, cogent and convincing. It can be said with confidence that the foundation and the main pillar of the prosecution being weak and shaky respectively, the structure must tumble down. To our mind Etebar Khan respondent was rightly acquitted by the trial Court. The appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.