' SYED DEEDAR HUSSAIN SHAH, J.---This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 7-2-2000, passed in Criminal Appeal No,13 of 1998/BWP and Murder Reference No,4 of 1998.
2. Precisely stating facts of the case are that a case under sections 302/392/34, P.P.C. Was registered with Police Station Shedani, District Rahimyar Khan on the allegation that respondents Muhammad Murad and Ghulam Hussain while equipped with fire-arm weapons alongwith another, whose face was muffled, resorted to firing on Abdul Jabbar, his nephew Abdul Mannan and Haji Nisar Ahmad, first informant was sitting on the rear seat of the motorbike and were coming from the fields. On the way they were confronted by the accused, resorted to firing, as a result of which Haji Abdul Jabbar lost his life.
3. After recording formal F.I.R., Muhammad Afzal Lodhi A.S.-I. (P.W.12) went to the spot, prepared the inquest report (Exh.PK) and took the blood-stained earth into possession. He also took into possession Rs,574 and a CASIO Wrist-watch of the deceased vide memo. Exh.P.G. Two months after the occurrence i.e, on 16-5-1995 Haji Nisar Ahmad complainant produced before Muhammad Iqbal, S.-I. (P.W.8) an empty bag stained with blood P.10, a handkerchief P.11, Registration Book of the motorcycle P.12 and key of the motorcycle P.13 which were taken into possession. Bashir Ahmad Jamoo, Inspector (P.W.9), arrested Muhammad Murad and Ghulam Hussain accused on 22-4- 1995.
4. After completion of the investigation, both the respondents were challaned to face the trial.
Prosecution in order to prove its case produced in all 12 witnesses.
5. At the conclusion of the trial, learned Additional Sessions Judge, Liaquatpur, vide judgment, dated 4-2-1998, convicted the respondents and awarded death sentence to Muhammad Murad, whereas imprisonment for life was awarded to Ghulam Hussain. Both the convicts were further directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased or in default to suffer one year R.I.
6. On appeal, learned Division Bench of Lahore High Court vide its judgment, dated 7-2-2000 accepted their appeal and acquitted both the respondents.
7. Learned counsel for appellant, inter alia, contended that there has been non-reading of evidence; that ocular account was furnished by Haji Nisar Ahmad and Muhammad Ashraf P.Ws. 2 and 3 respectively, but learned Division Bench did, not consider their evidence, that the reasons given by the High Court to disbelieve the ocular account is nothing but misreading or non-reading of evidence. He further stated that during cross-examination of the material eye-witnesses, namely, Haji Nisar Ahmed (P.W.2) and Muhammad Ashraf (P.W.3) no suggestion was made to them to show that there was any enmity between the parties, which shows that there was no animus against the accused by the complainant party; that reason given by the learned High Court in acquitting the accused-respondents on the sole ground that boy Abdul Mannan aged 3 years, who was sitting on the motorbike, did not receive injury, in any case; is not tenable; that the judgment of the trial Court is based on proper appreciation of the evidence, which should be maintained setting aside the judgment of the High Court. Learned counsel further pointed out that investigation was not done honestly as police officers were close relatives of the accused party. In support of his contentions learned counsel relied on Jafar Ali v. The State (1998 SCM R 2669), Umar Hayat v. Jahangir and another (2002 SCM R 629) and Jan Muhammad v. Muhammad Ali (2002 SCM R 1586).
8. Ms. Afshan Ghazanfar, learned Advocate Supreme Court appearing on behalf of the State adopted the arguments of Mr. Aftab Farrukh, learned Advocate Supreme Court for the appellant and vehemently stated that appeal may be accepted
9. Mr. M.A. Zafar, learned Advocate Supreme Court for respondents Nos.1 and 2 stated that the entire case of the prosecution hinges on the testimony of P.Ws. 2 and 3, which has no corroboration whatsoever. He further pointed out that the medical evidence so adduced does not support the ocular evidence rather it is in conflict with the ocular account; that there is no recovery of empties from the Wardat; that Abdul Rehman (D.W.1) was introduced as P.W. At very belated stage because his name was not mentioned in the F.I.R., no doubt the prosecution got his statement recorded under section 164, Cr.P:C. In the absence of the respondents, in which he supported the prosecution's case, but his statement, in any case, is not admissible in evidence. As a D.W. He totally denied the prosecution version and further stated true facts that one of the assailants was present at the spot; that the prosecution made dishonest improvement; while recording evidence it is nowhere stated that blood-stained clothes of Murad were taken into possession at all; that there is no evidence that clothes if recovered were kept in safe custody; that it is also not forthcoming as to how the clothes were sent to the Serologist. Learned counsel further pointed out that trial Court while recording the statement of respondents under section 342, Cr.P.C. Put question No,5, which was not in accordance with the evidence so recorded and which should not have been put to the respondents; that both the parties are unanimous on the point that the alleged incident took place at 7-30 p.m. Whereas the time of sunset was 6-10 p.m. In those days which shows that there was sufficient darkness and the possibility of mistaken identity of the assailants cannot be ruled out. Moreover the motorcycle on which the complainant-party was riding was not secured; that both the eye-witnesses made dishonest improvement in their evidence to show their presence at the time of occurrence; that the P.Ws. Tried to establish the case after its registration, particularly after two months of the occurrence by pointing out that empty bag stained with blood was being carried by Haji Nisar Ahmed complainant and was taken into possession on 16-5-1995 vide Exh.P.10 Mr. Zafar further stated that no question about relationship of the Investigating Officers with the respondents was put to P.Ws. During trial in cross- examination, which shows that it is an afterthought and that contention in any case is not acceptable. He further stated in site plan (Exh.P.C.) prepared by the police the name of the accused are not mentioned, which also create suspicion, even in the inquest report Exh.PG names of the accused are not mentioned. In support of his contentions learned counsel has relied on Thoba v. State (PLD 1963 SC 40), Bashir Ahmad v. Muhammad Azam (PLD 1969 SC 469), Bagh Ali v.
The State (PLD 1973 SC 321), Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) and Muhammad Yaseen v. The State (2003 SCM R 231).
10. It would be advantageous to discuss here the important portions from the evidence of the P. Ws.
On the point of motive about the dispute of land P.W.2 Haji Nisar Ahmad stated as follows:-- ' "About 15/20 days prior to this occurrence, my brother Abdul Jabbar had purchased 7 Kanals of land from one Peer Bakhsh `Qassab' in Mauza Braran Sharif. Murad and Ghulam Hussain had threatened us about 5/6 days prior to this occurrence to return the land to the vendor from whom they had intended to purchase..."
' So far the conflict of medical evidence and ocular evidence is concerned, the said witness stated as under:-- ' About 5/6 fire-shots were made, out of which two were fired by Ghulam Hussain and Murad accused while remaining were made by said unknown person. The unknown person also possessed most probably pistol."
' It is strange to note that P.W.2 in cross-examination stated as follows:-- ' ".....I had met police at Chowk Khanbella. The written application Exh.P.B. Was first drafted by me and then produced before the police at the Chowk. I had fetched a paper from a shopkeeper of the chowk and had drafted said application."
' P.W.12 Muhammad Afzal Lodhi, Sub-Inspector, Police Station Shedani, deposed before the Court as under:- ' ".....The written application Exh.P.B. Was presented to me by the complainant at Chowk Khanbella. I was on partrol duty at Chowk Khanbella when the complainant came to me."
' The said version of P.W.2 that he had fetched a paper from shopkeeper is not plausible, logical and trustworthy, because according to P. W.12 Muhammad Afzal Lodhi, he was on patrol duty and usually while on duty police keeps investigation kits with it, which contains arms ammunition as well as necessary papers, carbons, pencils etc. P. W.12 Sub-Inspector did not say that paper was not available with him and the complainant obtained the same from a shopkeeper. It is strange to note that the name of the shopkeeper is not mentioned in the application/complaint. Actually the police in support of the version of the complainant should have also examined the shopkeeper. In our view, the story put forward by the complainant does not appear to be sound, convincing or plausible. So far as the contention of the defence that some columns of the Inquest Report were left blank and the same were not filled in, is supported through evidence of P.W.12, who on oath before the trial Court deposed as follows:- ' "The inquest report of the deceased was prepared by me at the spot while the written application of the complainant had already been sent to the police station concerned for registration of the case. In Column No,3 of inquest report only the date is entered while the remaining column is blank.
It is correct that Column -No,10 of the inquest report finds mention of two injuries. It is correct that I did not mention the specific name of the weapon in Column No,12 of the inquest report Exh.P.K."
In the site, plan Exh.P.G. It has rightly been pointed out by the defence that direct ion of the accused-respondents from which they came and fired at the deceased, is not mentioned, which also gets support from the evidence of P.W.12, who on oath admitted before the trial Court as under:-- ' "....It is correct that the direction from which the accused persons came and to which they went has not been shown in the site plan."
11. We have gone through the material available on record and have very carefully examined the case-law cited by learned counsel for the parties. Admittedly, the incident took place at 7-30 p.m. whereas during those days sun used to set at 6-10 p.m., as such darkness had been prevailed, therefore, the possibility of wrong identification of the assailants cannot be ruled out. We have also perused the medical examination conducted by Dr. Muhammad Yousaf P.W.11 on the body of Abdul .Jabbar deceased, which reads as under:-- "(1) it wound oval in shape over right side of upper arm.
(2) A wound oval in shape over right side of upper arm just above elbow-joint. There was fracture of right humorous (creptus could be elicited).
(3) An oval wound was over right side of chest with bleeding evidence on moments."
According to the doctor, rupture of right lung with rupture pulmonary vessels i.e, Injury No,3 were sufficient to cause death. Besides it, medical evidence does not corroborate the ocular account, because P.W.-Haji Nisar Ahmed stated before trial Court that:- ' "....Murad had fired from a distance of 5/6 feet, while Ghulam Hussain fired shot from a distance of 7 feet. The light of motorcycle had gone off."
Had the deceased been fired at a distance mentioned by P.W., then should have been blackening and tattooing around the wounds.
12. We have also gone through the judgment of the trial Court, who keeping in view the medical evidence and inquest report, in its wisdom observed as under:-- ' "..................... Inquest report Exh.P.K., in its Column No,10, reveals that two injuries have been mentioned; one on the right arm and the second on the right chest. The diagrams Exh.P.H./1 clearly reveal that injuries Nos. 1 and 2 are entry and exit wound which is one and the same while injury No,2 is in the chest.
This finding of the learned trial Court is not based on the proper appreciation of the evidence rather the medial evidence belies it as mentioned hereinabove.
13. No doubt the prosecution witnesses are closely related to the deceased, but there is no independent corroboration to their testimony, nor there is circumstantial evidence to connect them with the commission of offence. Even the motive in cross-examination as mentioned hereinabove was not proved.
14. We would now like to discuss the case-law cited by the learned counsel for the parties. In Jafar Ali's case (supra) it has been held by this Court that:-- ' "....The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/prosecution, provided the same have not prejudiced the accused in the fair trial."
' In Umar Hayat's case (supra), at page 632, it has been held as under:-- ' ...................... Admittedly, the incident took place in broad daylight, and the prosecution evidence, which was natural, convincing, trustworthy and of unimpeachable character, was not shaken in cross-examination and the trial Court with sound and cogent reasons appreciated the evidence in its proper perspective while convicting the respondent whereas the learned High Court without considering the prosecution evidence in its true perspective, allowed the appeal on surmises and conjectures."
' In Jan Muhammad's case (supra) it has been held as under:-- ' " Testimony of all the injured prosecution witnesses was impeccable which could not be even shattered in the cross-examination and was fully corroborated by medical evidence, recovery of blood-stained hatchet and evidence of ;motive-Trial Court on the basis of preponderant ocular testimony of injured witnesses coupled with medical evidence and recovery of bloodstained hatchet from the possession of accused including the injuries sustained by him and the presence of prosecution witnesses on the spot having been proved and confirmed even by the defence witnesses and also by the accused in his statement recorded under S.342, Cr.P.C. Had held the accused guilty of the charged offences---Said finding of the Trial Court did not stiffer from any legal or factual infirmity or glaring impropriety in the appraisal of evidence---High Court, however, have not evaluated the overwhelming ocular and other corroborative pieces of evidence in accordance with the norms of dispensation of criminal justice and acquittal of accused by it had resulted in grave miscarriage of justice---Acquittal of accused by High Court was consequently set aside and the judgment of conviction passed by trial Court against the accused was restored."
' In Bashir Ahmad's case (supra), referred to by learned counsel for the respondents, it has been observed that:-- ' "Ocular evidence creating a distrust in mind that story' put forward by prosecution is more conjectural than real---High Court on critical analysis rejecting such evidence outright as unworthy of credit."
' In Thoba's case (supra) it has been held that:- ' " In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available, it must be supported by some strong circumstances, such as might. 'serve to overcome the inherent doubt by which such evidence is necessarily affected."
' In Bagh Ali's case (supra) it has been ruled out that:-- ' "....Ocular evidence, in order to carry conviction on capital charge, must come from unimpeachable source or must be supported by some strong circumstance."
' In Ghulam Sikandar's case (supra) it has been observed that:-- ' "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 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 visualized 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."
' In Muhammad Yaseen's case (supra) it has been held as under:-- ' "To believe or disbelieve- a particular piece of evidence is primarily the function of the trial Court and the Appellate Court---Supreme Court usually does not interfere with the discretion exercised by the Courts below."
15. By now it is established law that conviction on capital charge may be passed only on unimpeachable ocular account, which is lacking in this case. Perusal of the recovery memos. And inquest report clearly shows that they were prepared after deliberation and consultation wherein the names of the respondents were not mentioned. It is not the case of the prosecution that during occurrence Muhammad Murad respondent received injuries and his clothes were blood-stained, its case is that he fired at some distance at the complainant party, so the recovery of blood- stained clothes of Murad in any case is not supporting the case of the prosecution rather it damages its case. Learned counsel for the respondents has rightly pointed out that report of the Serologist was not tendered according to Qanun-e-Shahadat Order.
16. We have also minutely gone through precedents cited by learned counsel for the appellant, which, in our considered view, are distinguishable from the facts and circumstances of the case in hand; whereas the case-law cited by learned counsel for the respondents fully supports his case.
The inferences drawn by the learned Division Bench of the. High Court are based on proper evaluation of evidence and there is nothing to indicate that the view taken by the learned Judges is either absurd or perverse or that the same is based on misreading of evidence or that any important factor in the case has been overlooked. Therefore, the said findings of fact do not warrant interference by this Court.
17. In the result the appeal is dismissed and the impugned judgment of the High Court is maintained.