' MUNAWAR AHMAD MIRZA, J.---This appeal, by leave of the Court, is directed against judgment, dated 7th July, 1993, passed by Lahore High Court.
2. Incident had taken place on 17th July, 1989 at about 12-30 p.m. Near Canal Bridge of Baseerpur Road, about two kilometres from Police Station Baseerupr City, District Okara. Mian Mazhar Ali was murdered by inflicting gunshot injuries. P.W.2 Ahmad Din lodged report at Police Station Baseerupur City nominating respondeht Amjad Ali for causing murder of Mian Mazhar Ali.
3. It is the case of prosecution that complainant alongwith Mazhar Ali (deceased) were returning from Court to their residence in Chak Nizam Din. When they crossed Baseerupur-Depalpur Road Toll Tax Post and reached near Canal Bridge on Baseerupr Road that P.W.4 Mian Muzaffar Ali (brother of deceased) and Sohna met them. They were exchanging view that respondent Amjad Ali armed with rifle suddenly emerged from the side of Toll Tax Post. He asked Mazhar ali (deceased) to talk with him separately, who accompanied him towards the bridge. During the talks Amjad Ali (respondent) got flared and fired three shots from the rifle on deceased Mazhar Ali; striking him on the (i) arm and chest; (ii) face, and (iii) abdomen. Mazhar Ali fell down and succumbed to injuries instantaneously. It is alleged that complainant, besides Mian Muzaffar and Sohna tried to catch the assailant but he escaped towards Government High School, Depalpur, while firing.
' It was mentioned that the Nikah of Mazhar Ali (deceased) had. Been performed with sister of Amjad Ali (respondent) but a dispute had arisen over the Rukhsati, which has resulted in present unfortunate occurrence. During investigation respondent Amjad Ali was arrested on 31-7-1989. Rifle P.5 alongwith licence Exh.P/6 was recovered from him on the same day, vide memo. Exh PK. After completion of investigation and necessary formalities challan was submitted before Sessions Judge, Okara.
4. Statements of 10 P. Ws. Were recorded at the trial. P.W.5 Dr. Shahid Farooq, who had performed autopsy on 17-7-1989 at 6 p.m. Deposed that following injuries were found on the body of the deceased:--
(1) Fire-arm entry wound 2 x 2 cm over the left angle of mouth.
(2) Fire-arm exit wound measuring 9 x 4 cm over the right angle of the mouth extending both upper and lower jaws. The lower jaw was fractured in its middle. The lower lip was completely missing from its place. The upper jaw also fractured in its middle. The front portion of the tongue was also missing.
(3) Fire-arm entry wound 5 x 4 cm into muscle deep over the left side of front of chest 1 pm above the left nipple. The wound has' an abrasion 5 x 5 cm over the outer and lateral side of the said entry wound.
(4) Fire-arm wound (the exit wound of wound No,3) over left upper limp measuring 26.x 8 cm i.e, extending from the left wrist joint up to above middle of left upper arm. The wound was lying over the front and outer aspect of the left upper limb. The left humorous bone was fractured at its lower end. The left radious was also fractured at its lower end.
(5) A lecerated wound measuring 8 x 2 cm into muscle deep over the back of lower part of the left upper arm (as a result of fracture of lower part of left humorous bone).
(6) Fire-arm entry wound over the left side of back of abdomen 9 cm behind the top of left iliac crest (over the left renal area). The wound measuring 1 x 1 cm going deep. The wound was laying 5 cm away from the lumber part of the verterbal column.
(7) Fire-arm exit wound measuring 3 x 1 into going deep over the left side of front of abdomen 1.5 cm above and outer to the umblicus. The mentum was peeping out of the wound.
' All the injuries were caused by a fire-arm. According to his opinion death had occurred due to haemorrhage and shock resulting from the fire-arm injuries. Time between the injuries and death was opined to be within half an hour.
' Statements of P.W.2 Ahmad Din, P.W.3 Sohna and P.W.4 Muzaffar Ali, who as mentioned in F.I.R. Had seen the incident, were recorded. Complainant Ahmad Din did not support the prosecution case.
He had disowned element of firing by respondent Amjad Ali at the deceased. P.W.2 Ahmad Din was declared hostile and allowed to be cross-examined by State Counsel. During cross-examination he denied the suggestion about witnessing Amjad Ali firing three shots at the deceased from his rifle.
Sohna P.W.3 also resiled from his police version and denied to have witnessed the occurrence. He was allowed to be cross-examined by the District Attorney, but nothing substantial could be elicited from his deposition. P.W.4 Muzaffar Ali brother of deceased, however, narrated the entire incident and gave complete details. The witness has unequivocally mentioned that when he was talking to his deceased brother, respondent Amjad Ali arrived there with 7 mm rifle and asked Mazhar Ali to listen to him in seclusion. Amjad Ali asked the deceased to revoke 'Talaq' which he had given to his sister. On his declining, respondent Amjad Ali saying that he would teach him a lesson, fired three shots, which caused his death on the spot.
' On the completion of prosecution side statement of respondent Amjad Ali under section 342, Cr.P.C. Was recorded. He completely denied the accusation and pleaded innocence. Record indicates that respondent Amjad Ali declined to make statement on oath under section 340(2), Cr.P.C. But produced in defence Exhs.DB and DG, reports from the daily diary register of Police Station Sadar, Depalpur. Learned Sessions Judge on the appraisement of record found respondent Amjad Ali guilty for the offence under section 302, P.P.C. And on conviction awarded him sentence for imprisonment of life and fine to the tune of Rs,10 thousand or in default R.I. For two years vide judgment, .Dated 12th January, 1991.
5. Feeling aggrieved respondent Amjad Ali challenged above conviction and sentence before Lahore High Court through Criminal Appeal No,50 of 1991, whereas petitioner (Mst. Saeeda Begum) filed Revision Petition No,46 of 1991 seeking enhancement of sentence and awarding capital punishment to respondent (Amjad Ali). Both these matters were taken up together and decided by common judgment, dated 7th July, 1993, whereby accepting the criminal appeal respondent (Amjad Ali) was acquitted and petition for enhancement was dismissed. Relevant observations are reproduced below:-- "10. The F.I.R. In this case was lodged by Ahmad Din, a tenant of the deceased. While lodging F.I.R., he had claimed to have witnessed the occurrence. He had named Sohna, another tenant of the deceased, and Muzaffar Ali, a brother of the deceased, also, as eye-witnesses. However, while appearing at the trial, Ahmad Din did not support the version reported in the F.I.R. And he stated that he had not seen the accused firing at the deceased. He was allowed to be cross-examined by the District Attorney wherein also, he did not concede anything in favour of the prosecution. He admitted that Exh.PA bears his thumb-impression but explained that it was not recorded on his dictation. While answering questions by the counsel for the Defence, he stated that he had sent information about the murder of the deceased from Depalpur Hospital to Muzaffar P.W. At his Haveli, which was at a distance of 25 miles from the place of occurrence.
11. Sohna, while appearing as P.W.3, also denied to have witnessed the occurrence. He admitted that he was a tenant of the deceased. During cross-examination by the counsel for the accused, he deposed that Muzaffar P.W. (brother of the deceased) was inimical to the deceased as the deceased had married the girl whom he (Muzaffar) wanted to marry.
' The only person, who furnished the ocular account, was, Muzaffar Ali, brother of 'the deceased.
While appearing as P.W.4, he claimed to have witnessed Amjad Ali firing thrice at the deceased.
While giving the seats of the injuries, he particularly stated that one of the shots had struck the deceased on the back. However, on being confronted with his statement Exh.DA before the police, he was not found to have stated so, rather he was found to have stated that the third shot had hit the deceased on his abdomen. On being further cross-examined after the confrontations, he reverted to the original position, that he had taken during investigation and stated that he had correctly stated before the police that one shot had hit the deceased on the abdomen. This statement of the witness is contradicted by the medical evidence.
' According to the post-mortem report, the deceased was not found to have suffered any injury on the abdomen. Instead, he was found to have suffered an injury on the back.
' The statement made by him during cross-examination at the trial that the documents relating to the dead body were scribed at the police station at about 1-30 p.m. On the same day, is contradictory to the statement made by the S.H.O. (P.W.9). The stance of the S.H.O. Was that he had despatched the dead body for post-mortem from the spot after preparing the injury statement and inquest report.
12. The contradiction of the statement of this witness by the medical evidence and the contradictory position that he had taken up the statement of the S.H.O. Regarding preparation of the documents of the dead body before sending the same for post-mortem, makes his claim of being an eye-witness highly doubtful. Apart from that, he was also not found to have stated in his statement before the police Exh.DA as to what had transpired between the deceased and the appellant before. The deceased was fired at.
' Yet another fact worth noticing, is, that, had he witnessed the murder of his brother, he would not have left it for Ahmad Din, a tenant, to loage the F.I.R. He would rather had himself gone to the police stained and lodged the report.
' Barring the above-noted weaknesses, his testimony does not beget corroboration from any other evidence on record.
' The empties said to have been recovered from the spot were not found to have been fired from the licensed rifle got recovered by the appellant. Thus, the sole testimony of the closely related witness not only suffers from many weaknesses but is also contradicted by the medical evidence.
The fact of his testimony being at variance with that of the investigating officer about the preparation of the documents qua the dead body before sending the same for post-mortem, makes his testimony further doubtful.
' The mere fact that the occurrence had taken place during day time and the appellant was the only accused, in my view, is no ground to maintain his conviction.
13. For all the reasons noted above, no doubt is left in my mind that the prosecution has not been able to prove the case beyond reasonable shadows of doubt. The appeal is, therefore, allowed. The appellant is on bail. The bail bonds and the sureties shall stand discharged.
14. Since the respondent has been acquitted, the question of enhancement of sentence does not arise. The revision petition is dismissed."
6. Appellant assailed above decision of the High Court by way of Criminal Petition for Leave to Appeal No,345 of 1993. However, leave was granted on 13th December, 1993 in following terms:-- "Learned counsel for the petitioner contends that the occurrence took place in the broad daylight and it being the case of a single accused, the High Court was not justified in discarding the evidence of Muzaffar who would, in no case, substitute the respondent for the real culprit. The contention requires examination. Leave to appeal is, therefore, granted."
7. Mian Abdur Rehman, Advocate-on-Record, for appellant raised following contentions:--
(i) Respondent Amjad Ali was convicted by the trial Court through well-reasoned judgment after being satisfied about credibility of ocular account, whereas High Court while reversing the judgment has based its findings on mere conjectures, surmises and extraneous considerations, besides, grossly misreading the evidence.
(ii) Lahore High Court in the impugned judgment has failed to consider most important factual aspect that unfortunately the witnesses are forced under threats of dire consequences or by various inducements, therefore, confidence inspiring testimony of solitary witness could not be rejected on account of relationship.
(iii) Motive has been fully established. Similarly weapon of offence was procured from the possession of accused/respondent. There is nothing on record which may even suggest exaggerated version of P.W.4 Mian Muzaffar Ali. Therefore, acquittal of respondent on the available material was not justified.
(iv) The impugned judgment runs counter to the principles of criminal justice and settled law laid down in precedent cases.
8. Mr. Aftab Farrukh, Advocate Supreme Court, for respondent No,1 (Amjad Ali) contended that evidence has been thoroughly analysed by the High Court and conclusions in the impugned judgment are based on sound reasonings. He maintained that by virtue of acquittal of respondent (Amjad Ali) by the High Court; presumption of double innocence has accrued in his favour.
Therefore, different standard of extraordinary convincing evidence was required for bringing home guilt against respondent.
9. We have Carefully perused the entire record and considered arguments addressed by learned counsel for the parties before us. Record manifestly discloses that three persons namely P.W.2 Ahmad Din, P.W.3 Sohna and P.W. Muzaffar Ali (brother of deceased) were present on the spot when occurrence took place. Complainant Ahmad Din and P.W.3 Sohna who were cited as eyewitnesses have completely exonerated respondent Amjad Ali from the accusation of firing at deceased Mazhar Ali. Thus, remains solitary statement of Muzaffar Ali who, however, has directly implicated respondent Amjad Ali, by expressly assigning him firing at deceased, which resulted in his instantaneous death. Comparison of his testimony with other evidence discloses certain contradictions which are irreconcilable. According to this witness .One injury was also caused on the abdomen of deceased which is contradicted by medical evidence. No doubt there does not appear serious exaggeration in the statement of P.W.4 Muzaffar Ali and prima facie there does not exist any substantial reason for his Substituting the respondent or implicating him falsely. But these factors by itself cannot be deemed sufficient for holding respondent Amjad Ali guilty under the established norm of criminal justice. When reasonable doubt concerning testimony of prosecution witnesses is noted then strong corroboration becomes necessary for fixing responsibility upon the culprit. Unfortunately, in the present case, two main eye-witnesses have completely exonerated respondent. In the peculiar circumstances testimony of P.W.4 Muzaffar Ali, coupled with certain C variations has considerably lost significance and does not inspire complete confidence.
10. Now looking to the scope of interference in the appeals directed against acquittal of the accused persons this Court in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) has laid down important broad features which are consistently followed and can be visualised from different case-law on the subject. Relevant portion is reproduced hereunder:-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight' and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned 'by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of 're-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitted 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."
11. In case of Mst. Zeenat Sultan v. Mumtaz Khan (PLD 1994 SC 667) this Court while considering question of interference by the Court on the appreciation of evidence as regards acquitted accused has observed thus:-- "In these circumstances, the High Court rightly reached the conclusion that in the absence of corroboration of the ocular testimony in the case with other independent pieces of evidence, the case against respondents Nos.1 and 3 to 5 could not be said to have been established beyond reasonable doubt. It is well-established rule of law that an acquittal judgment cannot be interfered with by an appellate Court only on the ground that on re-appraisal of evidence that Court has reached a conclusion different from that of the lower Court. The appellate Court can only interfere with the acquittal judgment if it finds that the conclusions reached by the lower Court on the evidence on record are such that no reasonable person would have reached the same or the Court below while acquitting the accused in the case has misread the evidence in a way which resulted in the miscarriage of justice. No such case is made out. The appeal is, accordingly, dismissed."
12. In this case High Court by exhaustively dilating upon all aspects of the case has directed acquittal of respondent. The reasonings adopted by the High Court are based on logical deduction, therefore, cannot be construed as arbitrary or perverse. There is hardly any distorted conclusion or factor which may show discrepancy in the impugned judgment causing positive miscarriage of justice. Therefore, considering the ratio decidendi in the afore-quoted reports and facts of the present case, we feel inclined to hold that impugned judgment does not warrant interference. The appeal is consequently dismissed.