' ABDUR REHMAN KHAN, J.---In this appeal, the legality of the impugned judgment, dated 2-10-1993, of a learned Judge in the Lahore High Court, has been challenged by the appellant who is a complainant in the F.I.R. Registered at his behest in respect of the murder of his son. In the F.I.R.
Accused/respondents Nos.1 and 2 alongwith Muhammad Ishaq were charged for the murder of Zulfiqar Ali. The learned trial Court by judgment delivered on 7-5-1991 convicted Rustam Ali and Jaffar respondents Nos.1 and 2 under section 302/34, P.P.C. And sentenced each of them to imprisonment for life and a fine of Rs,10,000 and were also directed to pay compensation of Rs,10,000 each to the legal heirs of the deceased. Muhammad Ishaq, the third accused in the case, was however, acquitted. The convicts/respondents Nos.1 and 2 approached the High Court in appeal for setting aside the judgment of the trial Court while the complainant moved revision petition for enhancement on the sentence into death and for reversing the acquittal of Muhammad Ishaq. By the impugned judgment, the High Court, allowed the appeal of the accused/respondents and acquitted them but dismissed the revision of the present appellant.
Leave to appeal was granted to find out; whether the High Court was justified in discarding the ocular account as well as corroboratory evidence available on record.
2. The factual aspect of the incident as narrated in the F.I.R. Is that on 20-6-1990 at 6-30 p.m. The complainant Muhammad Charagh with his son Zulfiqar Ali (deceased) was proceeding in a tractor which was loaded with wood from village Adhikot towards his saw-machine in Rungpur Town: Zulfiqar Ali was driving the tractor and when they reached near the Dera of one Khuda Yar Baloch at 6-30 p.m. He noticed the three accused; namely, Rustam Ali, Jaffar and Ishaq coming in a tractor driven by Jaffar accused and they overtook the tractor of Zulfiqar and stopped their tractor in front of his tractor. The accused Rustam Ali raised Lalkara and warned that he would not be spared and all the three wiped out their knives, brought down Zulfiqar Ali from his tractor and stabbed him on various parts of his body. In the meantime P.W.2 Jaffar Tayyar alias Zafar and P.W., Azhar Iqbal (abandoned) of Village Adhikot came from Rungpur side and they witnessed the occurrence. The accused after seeing them decamped from the spot. Zulfiqar Ali who was unconscious and was bleeding was taken to hospital at Nurpur. The Doctor there found the condition of Zulfiqatr Ali precarious and directed them to take him to Civil Hospital Jauharabad but on reaching Jauharabad Hospital Zulfiqar Ali expired.
' Motive for the crime was stated to be a charge of Zina by the deceased with Mst. Mubaran Bibi, wife of Rustam Ali, sister of Jaffar and cousin of Muhammad Ishaq. The deceased had been acquitted in that case during those days.
3. The trial Judge based his finding of guilt against the accused/respondents on eye account of Muhammad Chiragh (P.W.1) and Jaffar Tayyar (P.W.2) and motive for the crime was considered to be confirmatory circumstance. However, Muhammad Ishaq accused was acquitted on the ground that the Investigating Agency declared him innocent and the complainant side had agreed to it, that he had no motive to commit the offence. The knife allegedly used by him for the commission of the offence was not recovered from him and that material on record created doubt about his involvement in the offence.
4 The High Court, by the impugned judgment, accepted the appeal of the convicts for following reasons:--
(i) The presence of the eye-witnesses on the spot was doubtful on account of unreasonable and abnormal conduct exhibited by them as they three in number did not offer any resistance to the assailants who were equal in number;
(ii) The delay of about five hours in reporting the matter to the Police was taken to be a circumstance making the prosecution case doubtful;
(iii) The F.I.R. Was recorded after sending for the accused from his residence as he was not available on the spot to report the occurrence;
(iv) Post-mortem examination report gives the time of death as 10 hours before the examination.
According to post-mortem report the time of death comes to 8-00 p.m. And not 6-00 p.m. As given in the F.I.R.
(v) The eye-witnesses had during the investigation recorded their statements expressing their satisfaction over the finding of the Investigating Agency which had declared the accused Muhammad Ishaq innocent.
(vi) The recovery of tractor of the accused from the spot was not held to be a confirmatory circumstance in view of the improvement made by the witnesses over their earlier statements in respect of movement and condition of the tractor on the spot.
' The learned counsel appearing for the appellant criticised the impugned judgment for lack of application, of mind to some of the relevant evidence on record and for misconstruing and misjudging some material evidence on the file. He was of the view that none of the reasons indicated by the High Court would justify acquittal in face of the confidence inspiring account given by the eyewitnesses which found confirmation from the recovery of the crime weapon at the behest of the respondent. He submitted that the evidence of the eye-witnesses is consistent, natural and reliable and it has not been discredited on any point in the cross-examination. He supported the judgment of the trial Court believing the testimony of the eye-witnesses and according to him the High Court was not legally justified in coming to different conclusion than that of the trial Court. He particularly took exception to the remarks of the learned Judge in the judgment about the alleged unnatural and unusual conduct of the witnesses. On the other hand learned counsel representing the respondents argued that the judgment of the High Court is well- reasoned and it had given congent and sound reason for justifying its finding and conclusion of acquittal. He maintained that in view of the doubtful nature of the eye-witnesses as well as recovery evidence these could not be acted upon for conviction. He emphasized that on account of settled principle of law an order of acquittal could not be reversed merely because a different view was possible. He pointed out that Muhammad Ishaq's acquittal has not been challenged in this Court which means that the complainant side was satisfied with the decision of his acquittal, therefore, they are debarred to challenge the acquittal of accused/respondents which is based on discarding the same evidence which was not believed by the trial and High Court against Muhammad Ishaq mainly because the complainant side had conceded to the finding of his not guilty by the Police.
5. The crucial point for determination is to find out; whether, the reasons advanced for acquittal by the High Court are valid and sound so as to justify acquittal. Before this point is resolved it is pertinent to refer to a portion of the judgment of the trial Court wherein the learned Judge had expressed doubt about some aspect of the prosecution case. It was observed in Para No,25 of the judgment, "it is true that the deposition of Muzaffar Khan A.S.I. P.W.9 is highly damaging to the case of the prosecution. The deposition of this witness shows that the statement of the complainant was recorded after summoning him and after procuring his presence. Muzaffar Khan A.S.I. Was the first police officer to examine the deceased at the spot who had mentioned the names of the persons who had caused these injuries to him. P.W. 10 Ghulam Abbas Shah S.I. Has also conceded during his cross-examination that Allah Yar A.S.I. Was on patrol duty during the night of occurrence and that he had recorded the statement of the complainant while he was on patrol duty. Even if the admission of Muzafar Khan A.S.I. P.W.9 are ignored the statement of Ghulam Abbas Shah S.I. P.W. 10 belies the case of the prosecution about the price and time of the recording of the statement of the complainant. The material on record clearly shows that the F.I.R. Was recorded after preliminary investigation and after mature deliberations. This circumstance robs the F.I.R. Of its normal probative value and it requires appreciation of the material on record on the point of actual occurrence with care and circumspection. M regards, the recovery of weapons of offence the knives P.3 and P.4 at the instance of Jafar and Rustam accused were recovered from open sites near the canal bank. These spots were accessible to the general public and the same cannot be held to be within the exclusive possession of these accused. The evidence of recovery of the weapons of offence is as such not worthy of credence".
' The said finding was given on account of the doubtful manner in which the Police Officers had conducted themselves and particularly the irresponsible and casual way in which Muzaffar Khan (P.W.9) then posted as A.S.I. Police Station. Nurpur dealt with the investigation of a criminal case.
This witness in his statement in Court stated, "I had found an injured person lying on a cot at the spot. I had directed the two persons who were present at the spot with the injured persons to carry him to hospital Noorupur and they had carried him on that cot to Noorpur. The injured was profusely bleeding, on my inquiry he had informed me that his name and address and had also narrated the occurrence in which he had suffered injuries. He had also mentioned the names of the persons who had caused these injuries. I had not recorded his statement because his condition was serious and so I had sent him to the hospital immediately. I had myself gone to the Police Station Noorpur at about 10/11 p.m. And had narrated this occurrence to the S.H.O. SHO had gone to Civil Hospital Noorpur and I had returned to my duty in Adhi Kot".
' It is to be noted that P.W.10 Ghulam Abbas Shah S.H.O. Did not support (P.W.9) when he stated, "It is incorrect that Muzaffar A.S.I. Had met me on the night between 20/21-6-1990 at the Police Station and that he had informed me that he had found an injured person near Adhi Kot and that he had sent him to Civil Hospital Noorpur".
' According to statement of Muzaffar Khan (P.W.9) he enquired from the witnesses present by the side of the injured about the address of the injured and also from the injured regarding his address and the manner he received injuries. This witness also directed the two persons present with the injured to take him to the hospital. But it is curious that he neither recorded statement/report of the injured nor of the persons whom he found present by the side of the deceased. If whatever P.W.9 has stated was true then it clearly amounted to shirking and avoiding of official duty by a Civil Servant which would fall under misconduct. It is also very intriguing in this case that the tractor in which the accused come to the spot and in which they overtook the tractor driven by the deceased and struck it against the tractor of the deceased so as to stop it and left it on the spot after the commission of the offence, was although taken into possession by the Police but they had not brought its registration or any other document on record to show which was the owner of this tractor. It is obvious that this was very important evidence in the case and the ownership of the tractor would have helped a lot in ascertaining the real accused. This glaring example apparently of intentionally avoiding official duties and indifference in conducting the investigation must not go unnoticed by the high officers of the Police. The Registrar of this Court should, therefore, send a copy of this judgment to Inspector General of Police, Punjab for proceeding against the said defaulting officers in accordance with law and the result of the action so taken should be intimated to the Registrar of this Court.
6. As has been noted above the learned trial Court keeping in view the testimony of the said two abovenoted Police Officers had observed that the statement of the complainant was recorded after his presence was procured and that the F.I.R. Was recorded after preliminary investigation and "after matured deliberations". It was, therefore, held by the trial Court that in view of this matter the F.I.R. Lost whatever value it had and that this necessitated deep appreciation of other material on record. The recovery of weapon was also not believed. However, it is interesting that after disbelieving all these it was thought fit to give finding of guilt on the basis of the deposition of the eyewitnesses.
7. The inordinate delay of reporting the incident to the police could not be explained satisfactorily by the prosecution. If the three eye-witnesses as they claim had been present at the spot then any one of them could take care of the injured while the other could go to make report. It is admitted by P.W.2 that the deceased was taken in Datsun Pick Up from the spot to the hospital. This delay when judged in the light of the statement of P.W.9 Muzaffar Khan assumes importance and makes the prosecution case doubtful.. The other conspicuous blot in the prosecution case is that the eye- witnesses agreed with the finding of the Police regarding innocence of accused Muhammad Ishaq which was based on the statement of many witnesses to the effect that Muhammad Ishaq was not involved in the murder and that he was not present on the spot but was elsewhere. It appears that in this respect the statements of the eye-witnesses were specially recorded by the Investigating Officer and they were confronted with their statements at the trial. This, in other words, means that the eye-witnesses conceded that their statements to the extent of involvement of Muhammad Ishaq were false. Therefore, in absence of any other confirmatory circumstance regarding the other co-accused it was not safe to rely on such eye-witnesses. The learned counsel for the appellant was practically unable to controvert the correctness of any of the reasons given by the High Court for acquittal.
' At the time of reading the statement of the complainant it was noted that in cross-examination he was suggested certain questions as if the counsel cross-examining the witnesses was admitting his presence on the spot. It would be proper to reproduce that portion of the cross-examination.
"It is incorrect that in actual fact Zulfiqar Ali deceased while driving a tractor was confronted by Jafar accused who was driving the tractor and had reached the place of occurrence from the opposite direction. It is also incorrect that there was an altercation between the two persons because none of them was willing to allow the other party to cross the road. It is also incorrect that Zulfiqar had rebuked Jaffar accused by stating that he had committed Zina with wife of Rustam accused and sister of Jafar and that no harm had been done to him. It is also incorrect that Jaffar accused had caused injuries to Zulfiqar Ali with a pen knife due to that provocation because he had lost his self-control. It is also incorrect that Rustam and Ishaque accused were not present during the occurrence and that one of the P.Ws. Including me had seen this occurrence."
' The learned counsel for the accused was asked to explain the true significance of such suggestions in which the presence of witness and accused on the spot has been admitted and whether such suggestions amounted to admission of the accused on the spot and perpetrating the crime in the manner suggested and also whether these can be taken into consideration against the accused for determining his/ their guilt. He submitted that if these suggestions had been admitted as correct by the witness then it alongwith other incriminating factors could have been considered against the accused but on account of the denial of the witnesses to admit them as correct these cannot be acted upon. It is a matter of common observation that the defence counsel some time put inconsistent, disjointed, conflicting and almost at random suggestions to a witness with a view to taking some benefit out of it for his alternative pleas which he may ultimately set up in his defence. Therefore, the answers to such suggestions cannot be equated with admission of guilt so as to be used against the accused in the case. The incompatible nature of the suggestions in this case is clear from the fact that all along in the preceding paras. Such questions were suggested to the witness as if his presence on the spot was being admitted but all of a sudden it was suggested to him that you were not present on the spot as is clear from the 1 suggestion "none of the P.Ws. Including me had seen the occurrence". ' it is incorrect that Zulfiqar was not carried from the spot to civil hospital Nurpur and that Zulfiqar had remained lying at the spot unattended for about two hours and that he was directly removed from the spot to civil hospital Jauharabad. It is incorrect that Muzaffar Khan A.S.I. Had reached the spot after the occurrence while Zulfiqar was lying in injured condition at the spot. It is incorrect that I had received the information of the occurrence from Muzaffar A.S.I. And that I had reached there after receiving this information".
Therefore, we do not agree with the view of the learned counsel that these suggestions can be used as admission of guilt as we are of the view that such aimless and erratic suggestions would hardly amount to admission of guilt or involvement in the offence.
' We find no legal flaw in the reason advanced for acquittal by the High Court and while maintaining the impugned judgment dismiss the appeal.