1. ' ALLAHDINO G. MEMON, J.-- Since the acquittal appeal and Revision application arise out of the same judgment we propose to dispose of both the matters by this single judgment.
2. ' The brief facts giving rise to the present acquittal appeal and revision are that on 14-6-1981. One Afsar Ali lodged a report at P.S. Chawkiwara, inter alia, alleging therein that he is student of Intermediate, Urdu College, and is residing with his parents at Coal Godown, Lane No,31, Mirza Adam Khan Road, Karachi. Sikandar Hayat had enmity with him due to the hand (marriage) of his younger sister. Today at about 7-30 p.m. He started going towards his house after urinating at the corner of his street, when Sikandar came there from behind alongwith Shaukat and Muhammad Irfan. Sikandar was armed with Chhuri and asked Shaukat and Irfan to catch hold of him, and he should not be allowed to go. "I shall finish him." He tried to run away but Shaukat and Irfan caught hold of him, while Sikandar gave him successive blows with Chhuri. He gave him first blow on his stomach, below ribs right side, and thereafter gave second blow on his chest which he avoided with his left hand, and after that he gave him several other blows on head and other parts of the body as a result of which he was injured. Shad Gull and many other persons of the Mohalla came there and had witnessed the incident. His mother took him to the hospital. A.S.I.P. Niazul Hassan received information from the hospital, and therefore, he went to the hospital and found that injured Afsar Ali was present in Emergency Operation Theatre. After obtaining permission from Dr. Abbas, he recorded the statement of the injured, and the same was later incorporated in the book kept under section 154, Cr.P.C. The statement has been produced as Exh.6. The F.I.R. Which was recorded on the basis of above statement has been produced as Exh.14. Thereafter A.S.I.P. Niazul Hassan visited the Wardat and prepared the Mashirnama in presence of Mashirs Shamim Khan and Dost Muhammad. Then he went in search of the accused but could not find them. On the day of incident he had also recorded statements of P.Ws. Mst. Marwari, Anar Gull, and Muhammad Muhammad. He had also recorded statements of P.Ws. Shahzad Iqbal alias Shad Gull and Shamim.
3. The three accused had got bail before arrest from the Court and therefore, he could not arrest them. After completion of investigation he challaned the accused.
4. ' A formal charge was framed against the accused to which they pleaded not guilty.
5. ' At the trial prosecution examined Shahzad P.W.1, he did not support the prosecution and was declared hostile, Mst. Marwari P.W.2, she was an eyewitness. Afsar Ali complainant. P.W.3, he has produced his statement which was recorded in the hospital as Exh.6, he has also produced discharge certificate as Exh.7, Shamim Khan P.W.4 an eye-witness. He had also acted as Mashir of Wardat and has produced the Mashirnama as Exh.9, Dost Muhammad P.W.5 an eye-witness, he had also acted as Mashir of Wardat, A.S.I.P. Niazul Hassan P.W.6, he had recorded the F.I.R., carried on the entire investigation, and challaned the accused. Dr. Muhammad Taqi P.W.7, he had examined injured Afsar Ali and has produced initial certificate as Exh.15 and final medical certificate Exh.16, Muhammad Abbas R.M.O. Surgical Unit No,5, P.W.8, he has produced the medical certificate as Exh.20, Dr. Moula Bux Jamali P.W.9, he had initialled certificate Exh.7.
6. ' After close of the prosecution case statements of the accused were recorded in which they denied the allegations. Accused Sikandar Hayat has further stated that there was previous enmity between them and the P.Ws. At their native place. They had dispute on agricultural property with his nephew. There was bomb blast in his house. The sister of P.W. Afsar Ali was already engaged to his brother Irfan and in order to avoid the marriage, they have falsely implicated the whole family.
7. The case was false, he was implicated in order that he should lose the job with National Motors, witnesses have deposed falsely against him due to enmity over land. His sister's son Irfan and P.W.
8. Afsar Ali are first cousins and on the death of their grandfather dispute had arisen over agricultural land. Accused Shaukat had denied the allegation and had further adopted the statement of accused Sikandar.
9. ' The learned 2nd Senior Civil Judge and Assistant Sessions Judge (South) Karachi while considering the above evidence came to the conclusion that the prosecution had utterly failed to prove its case beyond shadow of doubt against the accused, and therefore, they were acquitted.
10. ' The present appeal and revision were filed against the said judgment of acquittal.
11. ' The evidence of Dr. Muhammad Taqi Khan shows that he was posted in Casualty Department, Civil Hospital, Karachi on 14-6-1981. On that day P.W. Afsar Ali was brought before him in injured condition. He examined him and also gave information to P.S. Chakiwara. He had found the following injuries on the person of injured:-
(1) Incised wound measuring 1-1/2" x 1" x abdomen deep of right iliac region.
(2) Incised wound measuring 1-1/4" x 3-1/4" x abdomen cavity deep on the right renal area.
(3) Contusion on right parietal area 1-1/4" x 1".
12. ' He had referred the patient to Surgical Unit No,5 for admission and further treatment as indoor patient. Opinion regarding nature of injuries was kept reserved. Injuries Nos. 1 and 2 were caused with sharp-edged weapon like knife or dagger, and the injury No,3 appeared to have been caused by some blunt substance. All the injuries were fresh. He has produced the initial medical certificate as Exh.15. Thereafter on 15-9-1981 he had issued supplementary certificate which he has produced as Exh.16. According to him the injury No,1 was grievous in nature.
13. ' Complainant Afsar Ali has supported the contents of his F.I.R. In Court. He has further stated that he remained in the hospital as indoor patient for about two and a half months. He has produced discharge certificate as Exh.7. Regarding motive he has stated that prior to the incident Sikandar had asked for hand of his younger sister for his nephew but they did not accept the said proposal, and therefore, the accused were annoyed. Accused Irfan is his cousin, while other accused Shaukat and Sikandar are maternal-uncles of accused Irfan. In cross-examination he has deposed that P.Ws. Dost Muhammad and Shamim were not related to them but they were their co-villagers. P.W.
14. Dost Muhammad is employed at Kharadar as Chowkidar. At the time of this incident 20 persons of the Mohallah had collected at the Wardat. Accused Sikandar Hayat works in National Motors. He has denied a suggestion that General Manager and Secretary of National Motors had called his father and asked him to implicate accused Sikandar in this case. He admitted that at the time of death of Shahzad Gul his mother was there in the native village. He did not know that after the burial of Shahzad Gul there were differences over land.
15. ' Shahzad P.W.1 did not support the prosecution and therefore, he was declared hostile and cross- examined.
16. ' Mst. Marwari P.W.2 is mother of injured Afsar Ali and has deposed that on the day of incident she was in her house when at about 7-30 p.m. Some boys came to her and informed her that some persons have caught hold of her son Afsar Ali. She came to the place of Wardat and saw that her son was in the grip of Shaukat and Irfan, while Sikandar was giving knife blows to him. After that Mohallah people collected there. She placed her injured son in Rikshaw and went to the Hospital.
17. These persons had demanded hand of her daughter for accused Irfan and since her son was not ready to accept this proposal, this incident took place. In cross-examination she has deposed that at the time of incident when she reached there about 100 persons were present there. She could not give time when P.Ws. Dost Muhammad and Shamim reached the hospital. She did not go to her native place on the death of Shahzad Gul.
18. ' Shamim Khan P.W.4 has supported the complainant and has further stated that P.W. Afsar Ali raised cries on which many people came there. P.Ws. Dost Muhammad and Shahid Gul were also present. In the meanwhile the mother of P.W. Afsar came there and on seeing her accused went away. The police had prepared Mashirnama of Wardat in his presence And he has produced the same as Exh.9. In cross-examination he has deposed that at the time when mother of P.W. Afsar Ali took him in Rikshaw, he was not aware that P.W. Afsar Ali was taken to hospital but he came to know later. He admitted a suggestion that all the three accused caused injuries to P.W. Afsar Ali. He knew one Mir Ghawas who is maternal-uncle of P.W. Afsar Ali. He admitted a suggestion that there was bomb blast in the house of accused Sikandar flayat. He could not say if Afsar Ali was responsible for such bomb blast. He admitted a suggestion that 107 Cr.P.C. Proceedings were started against him about 7/8 months ago at his village. He was implicated in 107, Cr.P.C.
19. Proceedings because he was witness in the case of Afsar Ali. His father was also made opponent in that case. The case was filed by accused Shaukat. Accused Irfan and Shaukat had also caused Chhuri blows to P.W. Afsar Ali. He denied a suggestion that he was not present.
20. ' A.S.I.P. Niazul Hassan had carried on the investigation which has been mentioned in the earlier part of this judgment.
21. ' Before the matter was heard Mr. Iftikhar Ahmed Chaudhry learned counsel for the complainant moved an application on 10-12-1987 for the withdrawal of the above revision application on the ground that the respondent No,3 was real first cousin of the applicant, while respondents Nos. 1 and 2 were maternal-uncles of respondent No,3. That due to intervention of elders the parties have compromised and the applicant has excused the respondents, and due to compromise the applicant does not press the revision application.
22. ' We have heard Mr. S. Sarfraz Ahmed learned Assistant Advocate-General for the State, Mr. Azizullah K. Sheikh, Advocate for the respondents, and Mr. Chaudhry Iftikhar Ahmed learned counsel for the complainant in the revision application.
23. The learned Assistant Advocate-General has contended that since A Shahzad P.W.1 did not support the prosecution, while P.W. Dost Muhammad has admitted relationship with the complainant, and there were certain important contradictions in the evidence of eye-witnesses, and that the parties have patched up, he would not support the appeal.
24. ' The learned counsel for the respondents has contended that P.W. Shahzad had not supported the prosecution while Mst. Marwari was mother of injured and P.W. Dost Muhammad was related to injured Afsar Ali. That the evidence of P.W. Shamim was in conflict with the medical evidence and therefore, the view taken by the learned trial Judge could not be said to be perverse. Admittedly number of persons had collected at the Wardat but no independent B witness has been cited or examined as a witness. There was no recovery and since there was enmity between the parties, the ocular evidence required independent corroboration which was missing in the present case.
25. ' The learned counsel for the complainant did not support the revision iniC view of the fact that the parties have patched up.
26. ' We have considered the contentions of the learned counsel. It is an admitted position that Mst.
27. Marwari was mother of injured Afsar Ali, while P.W. Dost Muhammad had admitted that he was related with the complainant. P.W. Dost Muhammad did not reside at the place of incident but had come to meet his relations and as such he was a chance witness. The evidence of P.W. Shamim was in conflict with the prosecution case inasmuch as according to the prosecution accused Sikandar Hayat alone had caused injuries to complainant Afsar Ali, whereas according to P.W.
28. Shamim all the three accused had caused injuries to Afsar Ali. In the case of Bagh Ali v. The State PLD 1973 SC 321 it was observed that:- "the appraisement of the evidence of the eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime and there is background of enmity. In such a situation the ocular evidence must, in order to carry conviction on a capital charge, come from unimpeachable source.
29. ' It was further observed that:- "Where the ocular evidence was in conflict with the medical evidence, it was not safe to rely upon ocular testimony unless it was corroborated by independent evidence."
30. In the present case there was another aspect which cannot be overlooked. It has been admitted by P.W. Dost Muhammad that about 60/70 persons had collected at the Wardat, and even other witnesses including Mst. Marwari have admitted this position, but no independent person has been cited or examined as a witness. In the case of Muhammad Sharif v. Tahirur Rehman and 3 others 1972 SCMR 144 it was observed by their Lordships of the Supreme Court that:- "It is the prosecution case that a large number of persons had collected at the place of occurrence and they were kept at bay by the accused persons firing at them indiscriminately. The failure on the part of the prosecution to produce a single disinterested witness is a point that goes against the prosecution. In the absence, therefore, of any corroboration of the evidence of the said eye- witnesses, it was not safe to place implicit reliance on their evidence.
31. Lastly this is an appeal against acquittal and therefore, ordinarily order of acquittal passed by Court below was not to be disturbed until and unless it was shown to be perverse or it was manifestly wrong and has resulted in miscarriage of justice. In the case of Sheo Swarup and others v. King Emperor AIR 1934 PC 227 it was observed by their Lordships that:- "In exercising the power under section 417, Cr.P.C. And before reaching to its conclusions upon fact, the High Court should and will always give proper weight and consideration, such matter as (1) The view of the trial Judge as to credibility of the witnesses. (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the wintesses."
32. ' In the case of Ghulam Nabi v. Daim 1986 SCMR 1424 it was observed by their Lordships that:- "the learned counsel for the complainant side has not been able to show that any of the grounds was unfounded. In the circumstances of the case, the principles for setting aside the acquittal are not attracted in so far as Diam's acquittal is concerned. He could at least be given benefit of doubt." ' and therefore, the acquittal appeal filed against the respondent was dismissed.
33. From the above discussion it is clear that the learned Judge had considered the evidence properly, and there was neither misreading of evidence G nor the judgment of the learned Judge could be said to be perverse or illegal. The parties have also patched up their differences.
34. ' We, therefore, do not find any reason to interfere with the judgment of H acquittal passed by the learned trial Judge. The appeal is, therefore, accordingly dismissed. The revision application filed by the complainant is also dismissed.
35. ' We had decided the above matter on 1-2-1988 and these are reasons for the same. .