' This criminal revision brought by Fateh Muhammad, petitioner, who was complainant in the murder case, is directed against the order, dated 22-4-1979, by which Mr. C.A. Rehman, the learned Sessions Judge, Vehari, acquitted Riaz Ahmad alias Raju accused (now respondent) of the charge under section 302, P.P.C. For committing the murder of Yaseen, his co-villager, on 12-7-1978 at 2 a.m. In his house at Chak No, 251-EB, Police Station Gaggo, District Vehari.
2. The brief facts of the case, as alleged by the prosecution, are that marriage of Riaz-ul-Haq son of Fateh Muhammad complainant was to take place on 29-7-1978 with the daughter of his brother Yaseen (deceased). iL was in that connection that on 12-7-1978 at 2 a.m. When womenfolk were singing in the courtyard of the house and in the other courtyard Yaseen (deceased) was sitting alongwith his brother Fateh Muhammad complainant and Ejaz Ahmad nephew smoking Hukka.
When they were so sitting, all of a sudden two buffaloes tethered in the courtyard near the boundary wall between the houses of Yaseen' (deceased) and Riaz Ahmad alias Raju respondent got frightened and when Yaseen (deceased) took towards that side, he saw Riaz Ahmad alias Raju respondent standing on Kupp (mound of chaff with sloping thatched top) near the common wall in his house and peeping into the courtyard of Yaseen's house. Seeing him stand in that position Yaseen (deceased) abused and forbade him from so doing and he (Raju) paying him in the same coin suddenly fired at him with a .12 bore pistol. The shot hit Yaseen on the right side of the chest as a result of which he was grievously injured and felling unconscious, died after about 45 minutes or so. His brother Fateh Muhammad complainant went to Police Station Gaggo and lodged the F.I.R. At 7 a.m. Relating the abovementioned incident therein. Explaining the motive, he alleged that there was a dispute between the deceased and respondent about the common boundary wall of their houses which had been re-built by the former after it had been demolished by the latter.
3. Ali Muhammad, S.H.O., Police Station Gaggo, after the registration of the case, went to the spot, carried out its inspection, and after preparing the injury statement and the inquest report, sent the dead body to the mortuary for post-mortem examination. He arrested the respondent on 15-7-1979 and meanwhile also got prepared, the site plans of the place of occurrence from a draftsman.
When he was still investigating the case, its investigation was entrusted to C.I.A. Staff and S.I. Sardar Ali recovered the pistol (Exh.P.5) at the instance of the respondent from the courtyard of his house on 19-7-1989. He completed the investigation and submitted the challan.
4. On the commencement of trial the respondent was charged under section 302, P.P.C. And, on his pleading not guilty, the prosecution produced as many as twelve witnesses.
5. Muhammad Ilyas Draftsman (P.W.1) proved the site plans (Exh.PA.), (Exh.PA./1) and (Exh.PA/2); Sultan Ahmad Constable (P.W.2) deposed about the safe escort of the dead body from the spot to Civil Hospital, Vehari for postmortem examination and delivery of the last worn clothes of the deceased to the Investigating Officer. H.C. Akbar Ali (P.W.3) testified about the safe custody of parcels pertaining this case before their transmission to the relevant offices. Inspector Haji Muhammad Khan (P.W.4) deposed about the verification of investigation carried out by S.H.O. Ali Muhammmad, while Muhammad Afzal Sharif (P.W.5) was identifier of the dead body at the time of post-mortem examination and he deposed accordingly.
6. Dr. Muhammad Afzal Saleemi, Senior Medical Officer, Civil Hospital, Vehari (P.W.6) had carried out the post-mortem of the dead body of Yaseen (deceased) and found nine fire-arm pellet wounds 1/2" x 1/2" each on the front side of the right abdomen at upper area 2" below the right nipple and 4" from the mid abdominal line. He removed one pellet from the right side of abdomen near the 12th dorsal vertebrae, and two pellets from the back of left side of chest. He noticed 9th, 10th, 11th and 12th ribs of the right side fractured, right lung and its pleurae, liver, spleen and left kidney injury. He found chest cavity and abdominal cavity full of blood. He also noticed holes in the right and left domes of diaphragm and two holes in the empty stomach with a small amount of digested food.
The cause of death in his opinion, was shock, heamorrhage and injuries to vital organs due to injury No,1, which was sufficient in the ordinary course of nature to cause death. He proved post-mortem report (Exh.P.E.) and the diagram of injury (Exh.P.C./1)
7. Muhammad Azam (P.W.7) was the witness of recovery of blood-stained earth from the spot as also of the recovery of pistol (P.5) at the instance of the respondent. S.I. Sardar Muhammad (P.W.8) had partly investigated this case and related his role as such.
8. Fateh Muhammad, complainant (P.W.9) and his son Ejaz Ahmad (P.W.10) gave the eye-witness account.
9. Ghulam Rasool, Constable (P.W.11) had carried the sealed parcels from the police station to the office of Chemical Examiner and S.I./S.H.O. Ali Muhammad (P.W.12) was the main Investigating Officer. They deposed accordingly.
10. The respondent, in his statement recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his false implication, stated that 5-7 days prior to the occurrence his wife who was a bit strong headed woman, had quarreled with the womenfolk of Yaseen (deceased) and there was also a dispute between him and the deceased regarding the common boundary wall of their houses and for that reason he had been falsely involved in this case. He alleged that Yaseen (deceased) had been killed by some one during the night and he had been erroneously blamed. He denied the recovery of pistol (P.5) and produced no defence.
11. On the conclusion of the trial and after hearing the learned counsel representing the parties, the learned trial Judge, by the judgment now under challenge, acquitted the respondent on benefit of doubt and aggrieved by these findings the complainant had filed this revision. District Magistrate, Vehari, had declined to move for filing of State appeal against acquittal.
12. It is argued on behalf of the petitioner that by producing the evidence of motive, coupled with reliable ocular evidence, further supported by the medical evidence the prosecution had fully succeeded in proving the guilt of the respondent beyond any shadow of doubt that the learned trial Judge while evaluation the prosecution evidence, neither followed the well-established principles of law nor did he draw correct inferences from material facts and proceeded to erroneously acquit the respondent on unfounded supposition and conjectures. According to the learned counsel, there was no good reason behind the conclusion drawn by the learned trial Judge that the womenfolk of the complainant party could not resort to singing seventeen days prior to the actual marriage ceremony or that the complainant party, particularly the eye-witnesses, who were educated persons, could not wake up till late at night or that the fear instinct in the animals could not be so sharp so as to feel frightened but by some one at night. He contends that the motive alleged by the prosecution regarding the disputed boundary wall of the deceased between the houses of the deceased and the respondent stood amply proved by the admission of the respondent himself, rather the motive part of the prosecution story stood further strengthened by his statement to the effect that his wife being a strong-headed lady quarrelled with the womenfolk of the complainant party a few days prior to the occurrence. He submits that the investigation carried out by S.H.O. Ali Muhammad (P.W.12) was mala fide who wanted to favour the accused and it was transferred from him on the complaint of the complainant party and for that reason he gave certain concessions to the defence by relating certain facts which did not form part of the record.
13. On the contrary, it is argued on behalf of the respondent that the prosecution story was full of improbabilities and the learned trial Judge was perfectly justified in acquitting him on benefit of doubt. According to the learned counsel it was a night occurrence and there was no good reason for Fateh Muhammad complainant and his son Ejaz Ahmad P.W. To have remained sitting with Yaseen (deceased) till 2 or 2-30 a.m. During the night of occurrence merely because their womenfolk were singing in connection with the marriage of complainant's son with the deceased's daughter which was to take place seventeen days later. In his view, this part of the prosecution story was cooked up in order to make Fateh Muhammad complainant and his son eye-witnesses and it was rightly disbelieved by the learned trial Judge. He contends that the dispute about the common boundary wall between the deceased and the respondent was no doubt admitted by the latter in his statement recorded under section 342, Cr.P.C. But like a double-edged sword it could supply motive for the crime as also a reason for false implication and in the circumstances of the case it was rightly considered by the learned trial Court in the latter context. He argues that Yaseen was killed at odd hours of the night by someone, most probably by some thief as indicated by the S.H.O. Ali Muhammad Investigating Officer and the respondent was blamed on the basis of suspicion emanating from their controversy over the common boundary wall. Finally it is urged that the respondent was acquitted of the charge about ten years ago and ordinarily superior Courts do not interfere in such like case, particularly in the exercise of revisional jurisdiction unless the order is patently unfair but the impugned order does not suffer from any such legal infirmity as the conclusion reached by the learned trial Judge are supported by cogent reasons.
14. After carefully considering the arguments of the learned counsel representing the parties and certain authorities quoted by them in support of their respective contentions, I am of the view that the findings of acquittal recorded by the learned trial Judge are not based on the well-established principles of law for appreciating evidence, nor the conclusions reached by him are based on sound reasoning, nor he has drawn correct inferences from certain material facts. For instance, there was no substance in saying that Fateh Muhammad complainant, who was a school master, and his son Ejaz Ahmad PM., who was a third year student, being educated persons were not expected to have kept sitting till late hours when the occurrence took place. There could be no question of their being educated persons or otherwise in that regard. Similarly, there was no force in the observations of the learned trial Judge that there was no reason for the womenfolk of the complainant party to sing in connection with a marriage ceremony which was to take place seventeen days later. The fact of proposed marriage between the son of the complainant and daughter of the deceased has not been challenged by the defence and if it was a fact then there could be every possibility of the womenfolk of the tribe of the complainant resorting to singing during night in connection with that marriage as it is a common feature in village life. It is in the statement of Fateh Muhammad complainant that the ladies were singing in his house which was adjacent to the house of his brother Yaseen (deceased). It is customary that male members do not sit near the place where women sing at such like occasions and probably it is for that reason that Fateh Muhammad complainant and his son Ejaz Ahmad were not sitting in their house and they were sitting with Yaseen (deceased).
15. It is an admitted fact that there was electricity in the village. If ladies were singing in connection with the marriage ceremony and the male and female members of the tribe of the complainant and the deceased were awake, then obviously electric bulb could be on at that time and there was nothing unusual if the eye-witnesses alleged that the respondent was identified with the help of the light of the electric bulb. The learned trial Court laid an unnecessary stress on the omission of this fact in the F.I.R. To my mind, the mention of this fact therein would have it more unusual than omitting it. Likewise, there is no substance in the conclusion of the learned trial Judge that the animals did not possess fear instinct of that degree that they should feel frightened at the sight of some person. Animals do have fear instinct and the buffalloes could feel frightened if the respondent had suddenly emerged behind the common boundary wall near which they stood tethered. If this fact were non-existent there was no dire necessity for the prosecution to have introduced it merely to give the occurrence a natural tinge. In my opinion, the existence of this fact rather lent credibility to the mode of occurrence as alleged by the prosecution.
16. The learned trial Judge seems to have given undue importance to the statement of S.H.O. Ali Muhammad (P.W.12) who had mainly investigated this case and from whom its investigation was transferred on the complaint of complainant party about his partiality in favour of the defence. The perusal of his cross-examination shows that he almost conceded every suggestion that was put to him by the learned defence counsel. He brought on the record certain things which were not available on the police file. The tenor of his statement indicated that he was biased in favour of the defence and was prejudiced against the complainant and did everything possible to spoil the prosecution case by giving undue concessions to the defence in the cross-examination. It was the duty of the prosecutor to have requested the learned trial Court for permission to cross-examine him and he should have been cross-examined after having been declared hostile. He seems to have purposely misstated the fact that at the time of spot inspection he did not see any foot-print on the Kupp' on which the respondent at the time of occurrence had allegedly stood and fired at the victim. In the inspection note he had stated that he did not see clear foot prints on it but some dim marks were visible thereon. Had he stated the true facts which he had stated in the inspection note, the effect thereof on the mind of the learned trial Judge would have certainly been different.
Similarly, in the police proceedings appended to the F.I.R. There is no mention about the presenece of Mr. Riaz Watto, Advocate at the time of recording the F.I.R. But S.I./S.H.O. Ali Muhammad (P.W.12) indicated the presence of the Advocate at that time in reply to a suggestion of the learned defence counsel in the cross-examination. All these facts show that S.I./S.H.O. Ali Muhammad (P.W.12) for some extraneous reasons, was out to spoil the prosecution case and when the complainant party sensed his mala fide, they approached the higher police authorities and the investigation of the case was transferred from him. In these circumstances, the learned trial Judge should have scrutinized his statement with more care and caution instead of blindly following it and so faithfully believing him.
17. For various reasons stated above, I am firmly of the view that the inferences drawn, conclusions reached and consequently the findings of acquittal recorded by the learned trial Judge were palpably wrong and hence not sustainable at law as they have resulted in gross miscarriage of justice. Therefore, the revision petition is accepted, the impugned judgment, dated 22-4-1979, is set aside and it is directed that the respondent shall be retried on the charge of murder in accordance with law by a Court of competent jurisdiction at Vehari. As a result, the respondent shall be immediately taken into custody and shall remain as an under-trial prisoner till the re-decision of the case. The trial Court shall, however, be at liberty to grant or refuse him bail on merits if applied for.
18. Before parting with this judgment, it may be mentioned here that certain observations made on merits of the case are meant only for the disposal of this revision petition, the learned trial Judge, who shall retry this case, shall be at liberty to come to any conclusion which he may consider just, fair and proper.