IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal is by leave of the Court against judgment dated 10-5-2001 passed by Lahore High Court, Lahore.
2. Precisely stating the facts of the case are that vide F.I.R Exh.PG/1 dated 26-3-1993 a case under sections 302/379/148/149 P.P.0 was registered at.Police Station Malikwal, District Gujrat on the complaint of Mst.Jallan.Complainant alleged in the complaint that on the day of incident at about 9-00 a.m. She alongwith her son Muhammad Aslam (deceased) and P.W. Muhammad Anayat (not produced) left for their Dera. The deceased was having licensed .12 bore double barrel gun and a bag containing cartridges belonging to his uncle Muhammad Anayat. When at 9-00 a.m.
Deceased passed near from the house of Ali Muhammad, Muslim Sheikh, accused Muhammad Nawaz and Allah Yar sons of Mirza, armed with rifles, Umar Hayat son of Allah Yar, Muhammad Riaz son of Ahmad, Muhammad Akram son of Ali Muhammad armed with .12 bore guns emerged at the scene of incident. Muhammad Nawaz and Allah Yar respectively fired with their rifles at the back of her son. Whereas Umar Hayat also fired with shotgun on the rear portion of thingsof her son.
Muhammad Aslam deceased fell down on the road, Muhammad Nawaz, Allah Yar, Umar Hayat, Muhammad Riaz, and Muhammad Akram rushed towards him and tired with their respective weapons causing injuries on his arms; neck,' back, buttocks etc. When he was lying on the ground.
The incident was also witnessed by P.W. Sher son of Muhammad Yar who was also coming from the side of the village and on hearing the screams of the complainant and others came over there.
Muhammad Nawaz and others ran away from the place of incident alongwith .12 bore gun and bag containing cartridges possessed by the deceased. Muhammad Aslam deceased succumbed to the injuries at the spot. The motive as disclosed in the F.I.R was previous enmity between both the parties against each other. P.W. Barkat All S.-I./S.H.O. After having registered the case proceeded to the place of incident. He took into possession blood stained earth from the place of incident and also prepared rough sketch of the scene of occurrence. It may be noticed that no empties were recovered therefrom. Accused were arrested on 21st April 1993 by the police and on completion of investigation they were sent up to face trial alongwith Umar Hayat, and. Muhammad Akram. The accused facing trial did not plead guilty to the charge and claimed to be tried. As such prosecution led evidence of as many as 17 witnesses including the statements of eyewitnesses i,e, P.W. Mst.
Jallan and Sher. It may be noted that one of the P.W. Anayat could not be produced because after few. Days of the incident he was killed by the accused party. The statements of accused were recorded under section 342 Cr.P.0 wherein they denied accusation and pleaded innocence. They neither entered into witness-box to make statements on oath nor any witness was produced in defence. On completion of proceedings learned trial Court vide judgment dated 4-1-1996 convicted/sentenced Muhammad Riaz and Muhammad Nawaz to death whereas respondent Allah Yar was sentenced to life imprisonment under section 302(b) P.P.C. Muhammad Nawaz respondent was also sentenced to 2 years' R.I. With fine of Rs,2000 and in case of default in payment of fine he was ordered to further undergo three months' R.I. Under section 379 P.P.C.
3. The respondents challenged the judgment of trial Court dated 4-1-1996 before Lahore High Court, Lahore by filing Criminal Appeal No,76 of 1996 which has been disposed of alongwith Murder Reference No,4 of 1996 sent by trial Court for confirmation of death sentence of Muhammad Nawaz and Muhammad Riaz.
4. Learned Division Bench of the High Court vide impugned judgment rejected Murder Reference and on accepting Criminal Appeal filed by respondents acquitted them of the charge.
5. It may be noted that against acquittal of co-accused Umar Hayat and Muhammad Akram no appeal was filed either by the State or complainant before the High Court.
6. Leave to appeal was granted to examine whether learned High Court has not fully appreciated the evidence available on record according to the established principles regarding appraisal of evidence.
7. Learned counsel appearing for the appellant/complainant stated that prosecution produced incriminating ocular evidence through P.W. Mst.Jallan and Sher to establish accusation against the accused persons but their evidence has been disbelieved by the High Court for the reason that they are interested witnesses and there is no other material available on record to corroborate their statements, whereas according to him once a witness has given trustworthy evidence it can not be rejected merely for the reason that he had relationship with the victim/deceased. Reliance was placed in this behalf on the case of Nazir and others v. The State (PLD 1962 SC 269).
8. Learned counsel appearing for the respondents argued that the High Court has appreciated the ocular testimony of P. Ws. Jallan and Sher keeping in view the principles laid down by Superior Courts from time to time as they were interested witnesses and no other evidence was available on record to corroborate their statements, therefore, High Court rightly disbelieved their evidence.
As far as medical evidence is concerned it contradicts the statements of both the eye-witnesses due to which prosecution case has become doubtful. It has also prevailed upon the High Court that the manner in which the incident had taken place is improbable because Mst. Jallan failed to give explanation to accompany her son Muhammad Aslam on theday of incident being a lady of 70 years for cutting fodder from the fields which are not situated in the vicinity where the incident had taken place and presence of P.W. Sher was also found doubtful because there was no occasion for him to be present in the near vicinity because his house and land is situated at a considerable distance from place of incident on different direction.
9. Learned State counsel argued that the respondents have been acquitted by the High Court according to law and as no material produced by the prosecution has been kept out of consideration and the impugned judgment is not perverse in the eye of law, therefore, in view of the principles laid down by this Court in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) no interference is called for in acquittal order.
10. We have heard the parties counsel at considerable length and have also gone through the impugned judgment carefully. It would not be out of context to note that there is no cavil with the proposition that the parties have got long standing enmity against each other during course whereof they remained involved in cases of murder allegedly committed by them against each other. Learned High Court in view of such factual position rightly searched for independent corroboration. To ascertain whether the evidence furnished by both the P.Ws., i,e, Mst. Jallan and Sher rings truth or not. There is no gain in saying that the evidence furnished by interested witnesses ordinarily cannot be discarded merely for the reason that they had relationship with the victim/deceased. However, for safe administration of justice it becomes the duty of the Court to look forward for corroboration of such evidence from independent sources with a view to explore truth for the purpose of reaching at a just conclusion. Reference in this behalf may be made to the case of Nazir and other (ibid), Iqbal alias Bhalla and 2 others v. The State (1994 SCM R 1), Abdul Ghafoor v. The State (2000 SCM R 919), Raqib Khan v. The State and another (2000 SCM R 163), Muhammad Amin v. The State (2000 SCM R 1784), Abdul Majeed v. The State (2001, SCMR 90) and Muhammad Safdar v. The State (PLD 2002 SC 781). Applying the test laid down in these judgments we have considered the statements of both the eye-witnesses carefully alongwith other evidence available on record but we failed to get even an iota of independent evidence to support their version. So far as medical evidence is concerned as per the statement of P.W. Dr. Asif Ali Khan deceased Muhammad Aslam sustained injuries on his person with shotgun as the pellets were found in the seat of injuries whereas the consistent plea of the appellant Mst. Jallan and P.W. Sher was that respondents Muhammad Nawaz and Allah Yar used rifles to kill deceased as such inference can be drawn that contradiction in both the evidence i,e, medical ocular has created doubt in the prosecution case.
Learned counsel for appellants contended that the doctor in cross-examination had stated that the injuries received by deceased Muhammad Aslam could be inflicted either by rifle or shot gun, therefore, some allowance may be given to the witnesses who are illiterate as they were not in a position to differentiate in both type of weapons and the injuries may be treated to have caused with shot gun. We are afraid the contention is not correct because such contention itself give rise to doubt, benefit of which will not go to any one else except to accused person. Moreover contradictions in the medical and ocular evidence of P.W. Jallan and Sher has made the prosecution story doubtful, therefore, it can be held that as if they had not seen the incident.
Therefore, conclusion can be drawn that both the eye-witnesses failed to furnish reliable evidence to substantiate accusation against the accused.
11. It may also be seen that learned High Court after taking into consideration all aspects of the case has doubted the presence of both the eyewitnesses at the place of occurrence because according to the statement of P.W. Sher he lived at distance of 4 Kilas from the place of incident and he had no ownership at or near the spot, therefore, his presence at the relevant time at the place of incident seems to be impossible. Likewise P.W. Jallan has failed to produce convincing statement to believe that she being a lady of 70 years old accompanied her son Muhammad Aslam for the purpose of cutting fodder.
12. It is now well settled that once an accused has earned acquittal in his favour, he enjoys double presumption of innocence and the Courts while examining the case of such accused must be very careful and cautious in interfering with the acquittal order and normally should not set aside the same merely for the reason that some other view is also possible. However, interference can be made in exercise of powers conferred upon the Court under section 417 Cr.P.C. If it is proved that the Court whose judgment is under scrutiny has misread such evidence or received such evidence illegally as it has been laid down by this Court in the case of Ghulam Sikandar (ibid).
13. Learned High Court had considered the case of prosecution from all aspects and had rightly concluded that no case is made out against the respondents. Thus for the foregoing reasons we see no force in .This appeal which is dismissed.