1. ' IFTIKHAR AHMAD CHEEMA, J.---Khushi Muhammad appellant has called in question the legality and propriety of the judgment, dated 30-6-1999 passed by Additional Sessions Judge-II, Bahawalnagar whereby he acquitted Muhammad Rafiq and Muhammad Sarwar respondents who were charged under section 302/34, P.P.C., for causing the intentional death (Qatl-e-Amd) of their co-villager Muhammad Aslam deceased.
2. Brief facts of the case as unfolded the F.I.R., Exh.P-A, leading to the instant appeal are as under:- Khushi Muhammad complainant is a resident of village Madhaniwala, Tehsil Minchinabad, District Bahawalnagar. On the day of occurrence i,e,, 13-8-1995 at 4-30 p.m. When he was present in his 'Bajra' crop alongwith his brother Muhammad Rasheed and one Abdul Khaliq P.Ws., his son Muhammad Aslam (deceased) who was carrying green fodder left for his house. After covering some distance when he reached near Kacha road, the complainant and his companions were attracted by an alarm raised by Muhammad Aslam deceased. He was running and shouting for help. Muhammad Rafiq respondent No,1 who was armed with a Soti and Muhammad Sarwar respondent armed with a hatchet alongwith their co-accused Hussain Ahmad alias Hussaina armed with an iron Karandi were chasing the deceased and ever took him at some distance and started belabouring the deceased with their respective weapons. The respondents and their co- accused gave multiple blows to the deceased hitting on his head and other part of his body. The deceased fell oh the ground and succumbed to the injuries on the spot. The motive disclosed in the F.I.R., was that the accused persons had a suspicion that Muhammad Aslam deceased ,had cultivated illicit relations with Mst. Naseem Bibi wife of Hussain Ahmad alias Hussaina accused and he with the aid of accused/respondents killed the deceased in revenge.
2. ' Khushi Muhammad reported the matter at the Police Station Mandi Sadiq Ganj where his statement Exh.P.A. Was recorded. During the investigation it transpired that Muhammad Hussain alias Hussaina was the real murderer and Muhammad Sarwar and Muhammad Rafiq accused/respondents had been falsely implicated in this case. They were, therefore, placed in column No,2 of the challan.
3. ' Prosecution examined 11 witnesses in support of its case. Khushi Muhammad complainant (P.W.2) and Muhammad Rasheed (P.W.3) are the eye-witnesses of the occurrence. Khushi Muhammad complainant P.W.2 reiterated what he had deposed in the F.I.R: Exh.P-A. The evidence of Khushi Muhammad complainant (P.W.2) received corroboration from the testimony of Muhammad Rasheed (P.W.3) on all material particulars. The medical evidence furnished by Dr. Abdur Razzaq (P.W.4) and recovery of blood-stained, Karandi P-2 at the instance of Hussain Ahmad alias Hussaina accused which stands proved through the evidence of Abdul Maleek P.W.6 and Ghulam Dastgir Sub-Inspector (P.W.11) further fortified the prosecution case.
4. ' Muhammad Rafiq and Muhammad Sarwar accused/respondents categorically denied the prosecution allegations and pleaded false iniplication. Their co-accused Muhammad Hussain Ahmad alias Hussaina, however, frankly admitted that he had caused the death of the deceased Muhammad Aslam by giving him Karandi blows. He, however, took the plea of grave and sudden provocation alleging that the deceased was a person of bad character. He had cultivated illicit relations with his wife Mst. Naseem Bibi. On the day of occurrence he saw his wife Mst. Naseem Bibi with the deceased in his 'Bajra' crop in an objectionable condition. He, therefore, in a fit of grave and sudden provocation caused injuries to the deceased with an iron Karandi. He also supported the respondents' plea of false implication. Hussain Ahmad alias Hussaina accused reiterated his assertion while entering into the witness-box as D.W. And supported his plea of grave and sudden provocation on oath and denied the participation of his co-accused Muhammad Rafiq and Muhammad Sarwar respondents.
5. ' The learned trial Judge disbelieved the ocular version furnished by Khushi Muhammad complainant P.W.2 and Muhammad Rasheed P.W.3 by holding that they were not present at the spot at the relevant time and acquitted the respondents for want of evidence. He, however, recorded the onviction of their co-accused Hussain Ahmad alias Hussaina under section 302, P.P.C., on the basis of his confession.
6. ' The trial Judge has discarded the testimony of two eye-witnesses namely Khushi Muhammad complainant (P.W.2) and Muhammad Rasheed (P.W.3), inter alia, on the following grounds:
(i) that both the eye-witnesses namely Khushi Muhammad and Muhammad Rasheed are closely related to the deceased, Khushi Muhammad is the father of the deceased while Muhammad Rasheed P.W.3 is his real brother and real paternal-uncle of the deceased;
(ii) that their presence on the spot at the relevant time was highly improbable;
(iii) that both the eye-witnesses have made material improvements in their statements e.g., Khushi Muhammad had not alleged in the F.I.R., that uncles of Hussain Ahmad alias Hussaina accused also participated in the commission of murder of his son. He, however, introduced this fact during the trial. In his cross-examination the complainant alleged that Hussain Ahmad alias Hussaina and Muhammad Rafiq accused were chasing on foot while their co-accused Muhammad Sarwar was riding a tractor and following them. This material fact does not find mention in the F . I. R . Exh.P-A .
7. The complainant alleged that the deceased was carrying green fodder on his head while his supporting witness Muhammad Rasheed P.W.3 has asserted that the deceased had loaded the fodder on a donkey;
(iv) that there is also a material discrepancy between the statements of Khushi Muhammad P.W.2 and Muhammad Rasheed P.W.3. As per version of the complainant P.W.2 only Muhammad Sarwar accused/respondent was riding a tractor while this fact is belied by Muhammad Rasheed P.W. 3 who unambiguously stated on oath that all the three accused were riding a tractor and chasing Muhammad Aslam deceased; and
(v) that both the eye-witnesses have exaggerated and falsely implicated Muhammad Rafiq and Muhammad Sarwar accused/respondents who were found innocent during the investigation.
8. ' The dictum of the Privy Council in Sheo Swarp v. Emperor (AIR 1934 P C 227) and a bedroll of decisions of the honourable Supreme Court of Pakistan have firmly established the position that although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction yet, as a rule of prudence, it should, to use the words of Lord Russel of Killowen and reproduced in PLD 1979 SC 956 (959) always give proper weight and consideration to such matters as:
(1) The view of the trial Judge as to the credibility of the witnesses. The appreciation of evidence made by the trial Court must always be given due weight and importance, for that Court has the advantage of not only hearing the evidence but also observing the demeanour of the witnesses deposing before it, its judgment of the credibility of a witness is not to be lightly discarded particularly where such judgment is supported by cogent and substantial reasons. (1968 SCM R 1168 (1178)).
(2) The presumption of innocence in favour of the accused. It is no doubt true that in an appeal against acquittal the whole case is open before the High Court in the same manner as in an appeal from a conviction and in both cases the High Court must make up its own mind as to the guilt or innocence of the accused person but there is this difference that the Court of Appeal must in a case in which an acquittal is sought to be set aside, remember that the presumption of innocence of the accused person has, if anything, been made stronger by the fact of the acquittal by the trial Court and this presumption is not to be lightly rebutted. (1968 SCM R 1168 (1178)).
(3) The right of the accused to benefit of any doubt.
(4) The slowness of an Appellate Court in disturbing a finding of fact arrived at by the Judge who had the advantage of seeing the witnesses. (PLD 1979 SC 956 (959).
(5) That where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the trial Court. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. Reference may be made to AIR 1934 PC 227, PLD 1951 FC 107 (111) and 1972 SCM R 672.
(6) Before an order of acquittal is reversed, it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. (PLD 1951 FC 107 (111). Where the trial Court allows itself to be beset with fanciful doubts, rejects credit-welt:1y evidence for slander reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.
9. ' Keeping in mind these principles we have carefully examined all of the material witnesses and also the judgment of the Court below.
10. There is no doubt or dispute that both the eye-witnesses are real brothers incr se and Khushi Muhammad P.W.2 who is the author of the F.I.R. Exh.P-A is the father of Muhammad Aslam deceased v Muhammad Rasheed P.W.3 is the paternal uncle of the murdered man. They have alleged that they were present in their 'Bajra' crop when the deceased who was carrying some green fodder left for his house. They have not specifically mentioned as to why they were present in the 'Bajra' crop. Normally the cultivators cut fodder during the early hours of the day. Had these eyewitnesses gone there to fetch fodder, they would have certainly stated so but they are silent on this vital point. During the trial Muhammad Rasheed P.W.3 introduced a donkey cart to carry the fodder. This was a major departure from his previous stand and also from the version of his brother Khushi Muhammad. He alleged that Muhammad Aslam deceased loaded the fodder on a donkey but no donkey or donkey-cart was ever produced by the complainant party before the I.O. It is also significant to note that Khushi Muhammad complainant wants us to believe that Hussain Ahmad alias Hussaina and Muhammad Rafiq accused were running on foot when they were chasing the deceased while their co-accused Muhammad Sarwar was driving the tractor and following them.
11. However, he is being contradicted by his brother Muhammad Rasheed P.W.3 who has unambiguously stated that all the three accused persons came on a tractor and chased the deceased while sitting on it. If they were chasing the deceased while riding a tractor and intended to kill him, they could crush him by ever running the vehicle. These contradictions found in the statements of both the witnesses render their story quite doubtful and we have not been able to persuade ourselves to agree with the learned counsel for the appellant that the discrepancies elicited above are minor in nature. In fact these discrepancies are so important and vital and go to the root of the matter and demolish the whole prosecution case when viewed in the light of two towering circumstances which need special mention: First and foremost is that both the accused/respondents were found innocent during the investigation and this fact cannot be easily glossed over and secondly;, their presence on the spot at the relevant time is categorically denied by their co-accused H Hussain Ahmad alias Hussaina who has taken upon himself the entire blame of the murder of Muhammad Aslam deceased by alleging that he being bad character had cultivated illicit relations with his wife Mst. Naseem Bibi and on the day of occurrence when they were making love in the 'Bajra' field, they were surprised by the convict accused (Hussain Ahmad alias Hussaina) and he in a fit of grave and sudden provocation caused the death of the deceased.
12. ' In sum, we found that the overall view of the evidence taken by the trial Court was reasonable while it is true that some of the reasons given by the trial Judge, if taken individually do not appear to be substantial or impectable but taken in their totality, they certainly render the evidence of the two eye-witnesses unsafe to be acted upon.
13. ' All the infirmities and flaws pointed out by the trial Court assume importance, when considered in the light of the all-pervading circumstance that both the accused/respondents were able to establish their innocence during the investigation and were consequently placed in column No,2 of the challan.
14. ' For all the foregoing reasons we are satisfied that the grounds on which the trial Court has based its judgment acquitting the respondents are reasonable and plausible. The appeal is devoid of force which stands consequently dismissed in limine.