1. ' ANWAR ZAHEER JAMALI, J.-- This appeal under section 417, Cr. P.C. Is directed against the judgment of acquittal, dated 2-11-1994 passed by the learned Additional Sessions Judge, Kandiaro, District Naushahro Feroze, in Sessions Case No,562 of 1986, whereby he acquitted all the four respondents in Crime No,148 of 1986 of Police Station Kandiaro, facing charge for an offence under sections 302, 201, 148 and 149, P.P.C.
2. ' The brief facts giving rise to this acquittal appeal are that on 11-9-1986 at about 3-00 p.m.
3. Complainant Siddique Lakho lodged a F.I.R. At Police Station Kandiaro, stating therein that they are five brothers and have their dispute over land with Muhammad Ibrahim and others and some cases are pending in the Courts. His brother Abdul Rehman aged 40 years used to sell milk at Kandiaro on bicycle and as usual on 9-9-1986 in the morning time he took the milk on his bicycle for sell but in the evening time he did not return to the village. On he same day i,e, 9-9-1986 at about 7-30 p.m. Muhammad Ismail, Shamsuddin, and Abdul Hamid met with the complainant and told him that in the evening time when they were returning from Kandiaro to their village at about 6-00 p.m., and reached at R.D. No,10 of Nusrat Cannal, they saw accused Ibrahim, Qaimuddin alias Din Muhammad, Muhammad Hassan, Abu Bakar and Hamid, out of whom accused Ibrahim was armed with Lathi while remaining four accused were armed with hatchets. They further disclosed that they saw the accused persons dragging Abdul Rehman along with bicycle and threw him into the canal, when Abdul Rehman tried to come out, they gave him hatchet and Lathi blows with the result he drowned in the canal. When these persons viz. Muhammad Ismail, Shamsuddin and Abdul Hamid tried to save Abdul Rehman the accused issued them threats of murder. After receiving such information the complainant along with his brothers and relatives went to search the body of Abdul Rehman but the same was not found, however, on 11-9-1986 they secured the dead body of Abdul Rehman, who had hatchet and Lathi injuries on his person. Thereafter, such F.I.R. Was lodged at the Police Station Kandiaro.
4. ' When the case was challaned against the accused persons under sections 302, 201, 148 and 149, P.P.C. A formal charge was framed against them to which they pleaded not guilty.
5. ' At the trial the prosecution examined P . W . 1 Muhammad Siddique, the complainant, he deposed as per the contents of the F.I.R. And produced F.I.R. As Exh.21, P.W.2 Muhammad Ismail, an eye- witness, he supported the case of the prosecution and produced his statement under section 164, Cr.P.C. As Exh.23, P.W.3 Abdul Hamid, an eye-witness, he also supported the case of prosecution and produced his statement under-section 164, Cr.P.C. As Exh.24. (Prosecution had given up the evidence of P.W. Shamsuddin vide statement Exh.26). P.W.4 Muhammad Achar, a Mashir of inquest report, Mashir of dead body, Mashir of place of occurrence and also Mashir of arrest of four accused, he produced inquest report Exh.28, Mashimama of dead body as Exh.29, Mashirnama of place of occurrence Exh.30 and Mashirnama of arrest Exh.31, P.W.5 Abdul Wahid, a second Mashir of arrest and recovery, he produced Mashirnama of arrest of Qamaruddin as Exh.34, Mashirnama of recovery of hatchet from accused Qamaruddin as Exh.35, Mashirnama for recovery of hatchet from accused Hamid as Exh.36, Mashirnama for recovery of hatchet from accused Abu Bakar as Exh.37 and also Mashirnama of recovery/securing of bicycle of deceased Abdul Rehman from Nusrat Canal as Exh.39. P.W.8 Ali Akbar Police Constable, he took the dead body of deceased Abdul Rehman to M.O., Darbelo for post-mortem and report, P.W.9 Dr. Khalique Zaman, he conducted the postmortem of the deceased and produced postmortem report as Exh.42, P.W.10 Ahmed Din, Investigating Officer, he confirmed all the documents earlier produced by prosecution witnesses and produced copy of notice as Exh.44, P.W.11 Manzoor Ali Tapedar, he had prepared the sketch of Wardat and produced the same as Exh.46. Thereafter, the side of the prosecution was closed.
6. ' After close of the prosecution case statements of accused were recorded under section 342, Cr.P.C. In which they denied the allegation and stated that they had old dispute and enmity over land with the complainant party due to which they have been falsely involved in this crime.
7. Accused Muhammad Ibrahim also produced documents Exhs.49 to 52, relating to Case No,4 of 1986 to show that on the day of occurrence i,e, 9-9-1986 he was already in police custody and such intimation was given to the concerned Court of Civil Judge and F.C.M., Kandiaro.
8. ' The trial Court of learned Additional Sessions Judge, Kandiaro, after hearing the arguments of the counsel for the accused, A.P.P. And counsel for the complainant passed the impugned judgment, dated 2-11-1994, and giving benefit of doubt to all the accused acquitted them under section 265- H(i), Cr.P.C.. The present acquittal appeal is directed against this judgment of the trial Court.
9. ' We have heard Mr. Sher Muhammad Shar, the learned Assistant Advocate-General, Sindh for the State/appellant, and Mr. Muhammad Daud Baloch, learned Advocate for the respondents.
10. ' The learned A. A.-G. After reading the whole evidence of all the prosecution witnesses examined in this case and also referring to the post-mortem report and other documents produced by them, has candidly conceded that due to material contradictions and lacunas in the prosecution evidence, unnatural conduct and evidence of both the eyewitnesses of the occurrence, who are also close relatives of the complainant and the deceased, coupled with an inordinate and unexplained delay of about 44 hours in lodging of the F.I.R., the prosecution has failed to prove the charge against the accused/ respondents, beyond reasonable doubt and thus the order of acquittal passed by the trial Court is justified. The learned State Counsel, therefore, did not support this appeal against the acquittal of the respondents.
11. ' Mr. Muhammad Daud Baloch, the learned Advocate for the respondents has contended that on examination of the whole evidence adduced by the prosecution, it is crystal clear that death of deceased Abdul Rehman was an un witnessed incident and after the recovery of his dead body, due to old and admitted enmity of the complainant party with the accused persons, they have been falsely involved in this crime. Referring to the point of delay in lodging of F.I.R., the learned counsel submitted that the assertioci of the complainant that the police had refused to register the F.I.R., unless the dead body of the deceased was recovered is an afterthought and baseless assertion. The learned counsel with reference to the testimony of the two alleged eye-witnesses further submitted that it is highly improbable that the three persons who have witnessed the occurrence did not attempt to rescue the deceased Abdul Rehman, even if their assertion, that they could not do so due to threats of the accused party, is taken as correct, it is highly improbable that all three of them had left the place of 'occurrence though any one of them could have gone to either inform the complainant or collect other persons of the locality to make an attempt for rescuing the deceased Abdul Rehman from the clutches of accused and the other two could have stayed at the place of occurrence, readily available to help out the deceased or to recover his dead body immediately. The learned counsel also submitted that the evidence of the prosecution witnesses cannot be relied as not only they are close relatives of the complainant but old enmity between the parties is fully established and admitted. Lastly the learned counsel submitted that the judgment of acquittal passed by the trial Court is based on proper appreciation of evidence and the trial Court has rightly given the benefit of doubt to the accused persons and once the judgment of acquittal has been passed by the trial Court double presumption of their innocence is now attached in their favour at the appellate stage and therefore such findings cannot be disturbed lightly.The learned counsel, in support of his contention has placed reliance on the following case-law:--
(i) Bagh Ali and 4 others v. The State (PLD 1973 SC 321),
(ii) Muhammad Ashraf and 2 others v. The State (1998 SCMR 279).
12. We have carefully considered the contentions of learned counsel and with their assistance also perused the evidence adduced by the prosecution in this case. It is an admitted position that complainant is not an eye-witness of the occurrence but he was informed by the alleged eye- witnesses of the occurrence Muhammad Ismail, Shamsuddin and Abdul Hamid, who are close relatives of the complainant. It is also an admitted position that F.I.R. Of the crime was registered by the complainant, after the recovery of dead body of the victim Abdul Rehman and there is a delay of about 44 hours in lodging of the F.I.R. It is also an admitted position that there is long-standing rancour and grudge between the parties and their cases are pending in various Courts. In such circumstances only unshaken and confidence inspiring evidence from the prosecution side, duly supported by other circumstances, could be made basis for awarding capital punishment to the accused. In the instant case contrary to this the evidence adduced by the prosecution is full of contradiction on many material points. The two eye-witnesses Muhammad Ismail and Abdul Hamid in their evidence have categorically deposed that Lathi blows were inflicted by the accused Ibrahim on deceased Abdul Rehman but the post-mortem report of the deceased does not support this assertion of the witnesses, and it discloses that all the injuries found on the body of the deceased were eased by sharp-cutting weapon. P.W. Doctor Khalique Zaman has also deposed only about injuries inflicted by sharp-cutting weapon and no other injury is said to have been caused by some hard or blunt substance. On the point of post-mortem -report of the deceased Abdul Rehman, also there is contradiction in the evidence of P.W. Dr. Khalique Zaman, who has deposed that the post-mortem of the deceased was conducted on the spot, while the other P.W.
13. Akbar has deposed that he had taken the dead body of the deceased to M.O., Derbelo for postmortem and his post-mortem was conducted there. The evidence of two eye-witnesses viz., Muhammad Ismail and Abdul Hamid is to be read with utmost care and caution as they are not natural but chance witnesses and further both of them are close relative of the deceased and complainant. The facts narrated by them about the occurrence are highly doubtful, firstly for the reason that it was not expected from the persons so closely related to the deceased that instead of making any attempt to rescue the deceased all three of them would leave the place of occurrence, though in normal course any one of them could have gone to either inform the complainant or to collect other persons of the locality to make an attempt for rescuing the deceased Abdul Rehman from the clutches of the accused, and other two could have stayed at the place of occurrence to help the deceased as and when possible or to recover his dead body immediately. 2ndly, these witnesses in their evidence have also not stated a word that why any one of them had not approached the police for lodging of the F.I.R. Of this occurrence. In case of Bagh Ali and 4 others v.
14. The State (PLD 1973 SC 321) the Hon'ble Supreme Court has observed that:- "The appraisement of the evidence of 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 a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, teen it must be supported by some 'snot-kg circumstances which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
15. ' In the case of Muhammad Ashraf and 2 others v. The State (1998 SCMR 279), the Hon'ble Supreme Court while examining the point of appreciation of evidence of interested witness has observed as under:-- "Therefore, in our humble view, where the prosecution case rests solely on the testimony of interested and inimical witnesses, it would not be safe, in such a case, especially when the punishment prescribed for the offence is capital punishment, to rely for corroboration of interested testimony of such witnesses, solely on the motive in the case."
16. Keeping in view the above standard of evidence adduced by the prosecution in this case and the case-law discussed above, it is clear that the case of prosecution against the accused persons has remained highly doubtful.
17. ' In addition to this, it may also be observed that the trial Court, while examining the case of prosecution, has already reached a conclusion that the same was doubtful and such benefit of doubt was given to the accused persons. In such circumstances at the appellate stage, unless it is found that the appraisal of evidence and the conclusions drawn by the trial Court were perverse or in violation of some principle of law, interference would not be justified. Reference in this regard may be made to the case of Muhammad Iqbal and others v. Sanaullah and 7 others (PLD 1997 SC 569), Imran Hussain v. Amar Arshad and 2 others 11997 SCM R 438) and Muhammad Inayat v. The State (1998 SCM R 1854).
18. ' For the foregoing reasons, we find no justification to interfere with the judgment of acquittal passed by the trial Court. Accordingly this appeal is dismissed.
19. ' These are the reasons for our short order, dated 18-11-1998.