' RANA BHAGWANDAS, J.---This appeal by leave of this Court arises out of judgment dated 21-7- 1997, passed by the Lahore High Court, in Criminal Appeals Nos.52 and 52-A of 1995, whereby learned Judges of the Division Bench accepted the appeal of respondents Nos.1 and 2 herein and acquitted them of the charge of murder whereas the State appeal against the acquittal of co- accused Shabbir Hussain Shah and Gulzar Hussain Shah was dismissed.
2. Prosecution case precisely stated is that, complainant Khadim Hussain on 11-10-1992 at 8-30 a.m.
Alongwith Mureed Hussain son of Ghulam Hussain, Nazir Hussain, Amir Hussain, Mureed Hussain son of Nazar Hussain (since deceased) and Khadim Abbas (since deceased), went to the lands reserved for pasture to take clay for repairing Imam Bargah of the village. When they reached the lands, respondent Manzoor Hussain Shah, whose house was situated adjacent to the pasture land, was standing outside his house and told the complainant party that he would not let them remove earth from the lands. -Mureed Hussain (since deceased) thereupon proclaimed that they shall definitely take the earth. It is stated that Manzoor Hussain Shah went to his house and immediately came armed with a rifle alongwith his son Shaheen Haider Shah armed with a rifle and Shabbir Hussain Shah, Gulzar Hussain Shah co-accused, both armed with .12 bore guns. Manzoor Hussain Shah shouted that he would avenge previous insult as also digging of earth, whereupon the complainant and others started running towards north, when they were fired upon by Gulzar Hussain Shah and Shabbir Hussain Shah from their respective weapons. Khadim Hussain and others crossed the water channel when Manzoor Hussain Shah fired from his riffle hitting Khadim Abbas on his back, who fell down. The complainant party stopped and Mureed Hussain (since deceased) tried to hold Khadim Abbas (since deceased) when, in view of the complainant party, Shaheen Haider Shah fired a riffle shot hitting Mureed Hussain on left side of his neck, Manzoor Hussain Shah fired second shot, which hit Mureed Hussain on his right shoulder. Thereafter, Shabbir Hussain Shah and Gulzar Hussain Shah fired from their respective shot guns; but the complainant party rescued itself by hiding behind the water channel. The firing attracted a large number of co- villagers, whereafter, the respondents decamped from the spot. Both the injured were taken to Civil hospital, Khanewal but they succumbed to their injuries on way to the Hospital. Leaving the dead bodies in the hospital, Khadim Hussain went to report the matter to police and lodged F.I.R., the same day, at 10-00 a.m. With Police Station Katcha Khoh, District Khanewal.
3. Motive for the incident is stated to be the sub-division of the pasture lands under Seven Marlas Housing Scheme' by the villagers and demarcation was carried out, which was demolished by Manzoor Hussain Shah with the help of a tractor, in the absence of the complainant and others.
Mureed Hussain, Khadim Abbas (since deceased) and others went to the spot where hot words were exchanged between the parties. It is stated that villagers had intervened but Manzoor Hussain Shah nursed this grudge against the deceased persons for his disgrace which proved to be the forerunner for this incident.
4. After investigation, all the four accused were sent up to stand their trial before the learned Judge, Special Court for Speedy Trial, Multan, where prosecution examined nine witnesses to prove its case. Trial Court, on assessm ent of evidence, believed the prosecution case to the extent of Manzoor Hussain Shah and his son Shaheen Haider Shah. Both of them were convicted under section 302/34, P.P.C. And sentenced to death on two counts and directed to pay compensation amounting to Rs,1,00,000 each to the legal heirs of the deceased or to suffer R.I. For six months in default. They were, however, acquitted of the charge under section 324, P.P.C. Shabir Hussain Shah and Gulzar Hussain Shah were also acquitted of the charge of murder through the judgment dated 8-6-1993.
5. As pointed out hereinabove, appeal against conviction preferred by Manzoor Hussain Shah and Shaheen Haider Shah was accepted setting aside the conviction and sentence whereas State appeal against the acquittal of respondents Shabbir Hussain Shah and Gulzar Hussain Shah, was dismissed, leading to this appeal at the instance of the complainant.
6. Prosecution case rests upon motive, eye-witness account furnished by Khadim Hussain, P.W.5 and Mureed Hussain, P.W.6 and medico-legal evidence confirming fire-arm injuries on the persons of the deceased.
7. Leave to appeal was granted to consider whether evidence on record had been properly appraised by the High Court in conformity with the well-established principles laid down by this Court in the context of the contention that in an occurrence, which took place in broad daylight and was witnessed by those who were not inimically disposed towards the accused, their acquittal from the murder charge could not be justified on minor and immaterial contradictions.
8. We have heard Mian Aftab Farrukh, learned Senior Advocate Supreme Court for the appellant and Sheikh Khizar Hayat, learned Advocate Supreme Court for the respondents at great length as full dressed arguments engaged our attention for almost three days. Mian Aftab Farrukh, learned Senior Advocate Supreme Court for the appellant vehemently urged that the time and manner of the occurrence was not disputed by the defence, the presence of witnesses on the spot was admitted and so was the presence of respondent-Manzoor Hussain Shah and others. He was not at his best while persuading us to hold that there was no conflict between ocular and medical evidence with regard to injuries on the person of deceased-Mureed Hussain. He also submitted that from the oral as well as documentary evidence, it was established on record that the complainant party was in settled occupation and physical possession of the pasture lands and even if such possession be ' treated as unauthorised or illegal, they could not be evicted except in due course of law and not at the point of fire-arms. Learned counsel concluded his arguments with the submission that respondent-Manzoor Hussain Shah had nothing to do with the possession of the complainant party over the pasture lands and that he had no right to dispossess them by use of force.
9. Adverting to the first submission of the learned counsel for the appellant, we find that the statements of complainant Khadim Hussain and Mureed Hussain, on the face of the record, appear to be discrepant, inconsistent and not capable of safe reliance for conviction on a capital charge on two counts. In the first instance, it is difficult to believe that both the witnesses alongwith two deceased and others had gone to pasture lands in Square No,50 for digging earth in the manner as claimed. In fact, witnesses candidly, admitted that entire Imam Bargah was cemented and, before Moharrum they used to repair and cleanse the said Imam Bargah, constructed five or seven years earlier. In case Imam Bargah was plastered with R.C.C. There was no occasion , for fetching clay from the pasture lands for mud plastering, as claimed by Mureed Hussain, P.W.6. In order to circumvent this circumstance, Mureed Hussain stated in his cross-examination that "we were to repair the roof of Imam Bargah and were to plaster Katcha wall. No repairs were made during the Muharram". This statement is patently at variance from that of complainant-Khadim Hussain. For the first time, this witness introduced the theory of leakage of earth (mud) from the Imam Bargah due to rains which required repairs so as to stop the leakage all over again. Both the witnesses are not clear as regards the motive for the occurrence. They have remained completely silent with regard to the exchange of hot words a few days before the occurrence or that both the deceased had hurled abuses at Manzoor Hussain Shah and village people had intervened. They did not support the motive part of the incident narrated in the F.I.R. To the effect that pasture lands had been demarcated for Seven Marlas Housing Scheme or that respondentManzoor Hussain Shah had demolished such demarcation by means of a tractor.
10. From the evidence of Haq Nawaz, Patwari, P.W.2, it is evident that water channel was about 2' high from surface of the land. It was about 2 1/2' high from Square No,50 which, being State land, was admittedly reserved for the construction of Government Girls Middle School. This witness further stated that water channel was fairly long and on the southern side of watercourse reeds/bushes about 10' to 15' high had grown up. He conceded that there were reeds/bushes on the banks of the fields of Square No,50. He was constrained to admit that points Nos.4, 5 and 6 were not visible from points Nos.1 to 3 in the site plan as reeds and bushes intervened. It may not be impertinent to observe that point No,1 denotes the place where deceasedKhadim Abbas was fired at by respondent-Manzoor Hussain Shah from point No,4. Likewise point No,2 reflects the place where deceased-Mureed Hussain sustained injuries statedly at the hands of Manzoor Hussain Shah and Shaheen Haider Shah from points Nos.4 and 5 respectively.
11. As regards the possession over the pasture lands, this witness stated that appellant-Khadim Hussain was in illegal possession of Square No,51 and that Muhammad Sadiq, a relative of the accused persons and a Headman of the village had moved an application against trespassers of Square No,50. This witness admitted that relatives of Khadim Hussain were trespassers and they were proceeded against by Sadiq Hussain. The 'witness added that Khadim Hussain used to sell the land in his illegal occupation and applications were moved against him as well. He went on to state that Muhammad Sadiq, Lambardar was still moving applications that the complainant and his relatives were trying to sell the land in their illegal possession sanctioned for school consisting of fields Nos.3, 4 and 5 of Square No,50. When called upon to substantiate his statement the witness, in reply to a Court question, explained that record regarding applications moved against trespassers was available in the Court of Assistant Commissioner, Khanewal. Learned counsel for the appellant seriously criticised the evidence of this witness on the premise that he had failed to produce the complaints received against Khadim Hussain and his relatives as regards trespass on the State land. Be that as it may, the witness unequivocally explained that the file relating to complaints against trespassers was available in the office of Assistant Commissioner, Khanewal.
Obviously he did not have domain over such record and it was for the Court to summon the same suo motu or on the application of any of the parties. It is an admitted position that Square No, 50/3, 4 and 5, in all measuring 21 Kanals, 10 Marlas was reserved for construction of Government Girls Middle School vide Mutation No, 377 dated 30-6-1991. Stance taken by prosecution is that since the Government Primary School had been upgraded, there was no occasion for the construction of a new school-building for which the scheme prepared through MNA's fund could not take off.
Similarly, the fact that this land was reserved of such school is supported by entry in Register Haqdaran Zamin for Chak No, 30/10-R, Tehsil Khanewal. The stance taken by complainant Khadim Hussain in his evidence appears to be that this piece of land was obtained on lease by his brother Muhammad Hayat in the year 1984-85. According to him, Muhammad Hayat died two or four years later. Kafayat Hussain had cultivated cotton crop on this land. Since the scene of offence and occurrence itself is not disputed, we are not persuaded to comment upon the nature and impact of possession over the pasture land. We find that since this piece of land did not belong to the complainant party, accused Manzoor Hussain Shah, a retired Master Warrant Officer from Pakistan Air Force, being an adjoining inhabitant, took an object to the excavation by the complainant party.
In fact, it is his case that the complainant wanted to construct a house on such land which was resisted by him as a respectable of the locality. The question whether the complainant party was legally justified in taking clay from the said lands for carrying out repairs to the Imam. Bargah on the ground that the same was in actual possession of the complainant party and whether respondent had no right to resist the course of action contemplated by complainant party, need not be commented upon in this case and we leave it open for a decision thereon in appropriate proceedings by competent Courts/fora.
12. On the merits of the case, we find that it was the stance of the complainant in the F.I.R. That the pasture land had been demarcated for 'Seven Marlas Scheme but Manzoor Hussain Shah had demolished such demarcation by means of a tractor. Later, both the deceased had gone to the site, exchanged hot words with Manzoor Hussain Shah and hurled abuses at him. Surprisingly, both the eye-witnesses in their respective statements have maintained complete silence on this vital aspect of the case and stated that complainant alongwith witnesses and deceased had gone to the lands for taking clay for repair to the Imam Bargah. Motive part of the occurrence was, thus, knowingly and intentionally omitted and abandoned by the prosecution, which remains unexplained and unaccounted for. Be that as it may, we may not be misunderstood to assume that since motive set up in the F.I.R. Was abandoned at the stage of evidence, it would affect the inherent quality of evidence furnished by the witnesses. The fact, however, remains that the ocular account of the incident is not supported by any circumstantial evidence relating to motive for taking the lives of two innocent persons. Put differently, omission and abandonment of motive does create a serious dent in the case of the prosecution and in all probability the complainant party, having an animus, against the respondents falsely involved them in this case. Moreover, the possibility of addition and substitution of the accused, thus, cannot be completely ruled out in the peculiar circumstances of this cause.
13. With regard to the contradiction between the ocular account and the medico-legal evidence, we are of the view that apparently medical evidence is consistent with the ocular account that Khadim Abbas sustained two firearm injuries as a result of a shot, one being entrance wound and the other being wound of exit whereas Mureed Hussain sustained two separate and distinct fire- arm injuries. Since no question was asked of the medical witness about the nature of weapon, we are not inclined to accept the far-fetched defence version that deceased Mureed Hussain sustained gun-shot injuries and not rifle shot injuries. The inference drawn by the learned Members of the Division Bench with regard to injury No,2 on the person of deceased Mureed Hussain, appears to be conjectural and without any support from the nature, size, seat and manner thereof or by any principle of Medical Jurisprudence in that behalf.
14. Adverting to the recoveries of two rifles from the possession of respondents Nos.1 and 2 and two shot-guns at the instance of respondents Nos.3 and 4, it is discernible from the record that this piece of evidence was disbelieved by the trial Court and that the High Court did not find any reason to differ with such appraisement of evidence. We do not find any good reason to deviate from the assessm ent of evidence done by the trial Court and affirmed by the learned Members of the Division Bench of the High Court, which is neither contrary to the material on the record nor against the settled principles for appraisement of evidence in criminal cases.
15. Admittedly, we are dealing with an appeal against a judgment of acquittal. There are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well- settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting 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 conclusive 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". The view taken by this Court in Ghulam Sikandar v.
Mamaraz Khan (PLD 1985 SC 11) is well-known that "in an'appeal against acquittal this 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 from that in an appeal against conviction when leave is granted only for the reappraisement 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.
The acquittal will not carry the second presumption and will also thus lose 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". This principle was also followed in Muhammad Iqbal v. Sanaullah (PLD 1997 SC 569) and State v. Farman Hussain (PLD 1995 SC 1).
16. We may refer to Ahmad v. Crown (PLD 1951 Federal Court 107), in which it was held that before an order of acquittal is reversed, it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. If two conclusions were equally possible, an order of acquittal should not have been reserved. This principle was reiterated in Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan (PLD 1964 SC 426), in which it was observed that "where he (trial Judge) had read the evidence fairly and has formulated grounds of doubt which are not perverse or illogical or unreasonable, there is a clear risk of departure from the rule of benefit of doubt in reversing his findings". More or less, similar view was expressed in State v. Bashir (PLD 1997 SC 408), laying down that in an acquittal appeal, superior Courts generally do not interfere unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on reappraisal of the evidence by the Court hearing the appeal simpliciter would not be sufficient to justify interference with the acquittal judgment. Precedents reported as Muhammad Sharif v.
Muhammad Javed (PLD 1976 SC 452), Shahzado v. State (PLD 1977 SC 413) and Farmanullah v.
Qadeem Khan (2001 SCM R 1474), in our view, are hardly relevant for the determination of this appeal and not advance the cause of the appellant.
17. In view of the aforesaid facts and reasons, we are of the considered view that the judgment rendered by the Division Bench of the Lahore High Court does not suffer from any error of law or jurisdiction. The conclusion drawn by the High Court is neither contrary to the evidence on record nor against the settled norms laid down by the superior Courts from time to time. In a case where the witnesses are inimically disposed towards the accused; have a motive against the accused for false implication and the manner of recovery of crime weapon is totally unreliable, the view taken by the High Court can neither be declared illegal nor upset in an appeal from acquittal. We hold that this appeal is without any substance. It is accordingly dismissed.