ABDUL HAMEED DOGAR, J.---This appeal with leave of theCourt is directed against the judgment dated 18-7-1995 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal. Appeal No,212 of 1991 filed by respondent Ahmad Ali was allowed and the conviction and sentence of death awarded by the learned trial Court was set aside and the Murder Reference No,26 of 1992 was answered in negative and the sentence of death was not confirmed. P.S.L.A. No,3 of 1992 filed against the acquittal of accused Ahmad Hussain was also dismissed.
2. Brief facts of the case are that on 12-6-1989 at about 6-30 a.m.Muhammad Ashraf had gone to graze his cattle in the field when at about 7-00 a.m. While leaving the same, he reached near the land of Muhammad Usman, respondent Ahmad Ali armed with pistol, absconding accused Saif Ali armed with pistol and respondent Ahmad Hussain armed with double-barrel gun appeared on a tractor. Ahmad Hussain raised Lalkara that today Muhammad Ashraf should not be spared and be taught a lesson for casting vote to their opponent, whereupon respondent Ahmad Ali allegedly fired from his pistol which hit Muhammad Ashraf on front of left side of his chest whereafter, absconding accused Saif Ali fired at him which hit him on the left side of neck. Respondent Ahmad Hussain continuously raised Lalkara while firing in air forbidding anybody to come near.
Muhammad Ashraf fell there and then and died at the spot. Irrespective of the complainant, the incident was also witnessed by P.Ws. Ghulam Rabbani and Taj Muhammad. The respondents decamped after leaving their tractor at the spot.
3. The motive narrated in the F.1.R. Was that the deceased had voted against the wishes of the respondents to a candidate of Pakistan Muslim League.
4. Javed Nisar (P.W.10) recorded F.I.R., prepared memo of Wardat, injury statement, inquest report of the deceased and sent the dead body for autopsy. The said tractor was also taken into possession vide memo. Respondent Ahmad Ali was arrested on 3-6-1989 and he while in custody, led to the recovery of .32 bore pistol on 5-7-1989. He was sent up to face trial along with absconding accused Saif Ali who was subsequently declared as proclaimed offender.
5. The complainant being dissatisfied with the contents of the F.I.R., filed private complaint on 16-9- 1989 against the above mentioned respondent and absconding accused which was brought on record by the trial Court and the process was issued against them. In the private complaint, it was disclosed by the complainant that the police had pressurized him for compromise with the respondents side but he refused, as such, discharged respondent Ahmad Hussain from the case and declared absconding accused Saif Ali as innocent.
6. Dr. Tariq Mahmood, Medical Officer, (P.W.1) conducted autopsy on the dead body of Muhammad Ashraf on 12-6-1989 and found the following injuries:--
(i) Entry wound of fire-arm on the left side of chest interiorly 4 m.m. x 4 m.m. With blackening at the margins and margins were inverted having blackening on the cloth also. It is 6 c.m. From interior axillary fold and 13 c.m. From mid-line and 9 c.m. Above and lateral to left nipple, just at the level of second coastal cartilage.
(ii) Entry wound of fire-arm in left supera clavicular fossa at the level of cricoid bone. It is seven c.m.
From mid-line and 4 c.m. From upper border of clavical. It is 4 m.m. x 4 m.m. With blackening at the inverted margins and also on the clothes.
(iii) Exit wound superlateral to injury No,2-A, 1.5 c.m. Above injury No,2-A. It is 9 c.m. From mid-line and 5.5 c.m. Above from ciavial with everted margins of 7 m.m. x 5.5 m.m.
(iv) Entry wound of fire-arm on the back of side of chest at the level of 5th thorax vertebrae mid- way between vertebral colun and medial margin of scapula. It is 5 c.m. From the mid-line and 11 c.m. From lower scapular tip. Margins were inverted and blackening was present on the margin and on the clothes also.
7. At the trial, the prosecution examined Dr. Tariq Mahmood (P.W.1), Ashiq Hussain, A.S.-I., P.W.2), Mushtaq Ahmad, Constable (P.W.3), Munawar Abbas F.C. (P.W.4), Muhammad Banaras (P.W.5), Muhammad Afzal, Revenue Patwari (P.W.6), Muhammad Usman (P.W.7), Muhammad Azad (P.W.8), Ghulam Rabbani (P.W.9) and Javed Nisar,. Inspector (P. W.10).
8. In their respective statements under section 342, Cr.P.C. The respondents denied the case of the prosecution and pleaded innocence and stated that they were involved on account of old enmity.
They, however, neither examined themselves on oath nor produced any evidence in defence. At the conclusion of the trial, respondent Ahmad Ali was convicted and sentenced to death, whereas respondent No,2 Ahmad Hussain was acquitted, as stated above.
9.. This Court granted leave to appeal on 11th December, 1995, to ascertain as to whether proper appreciation of evidence has been made by the trial Court as well as the High Court while acquitting the respondents.
10. We have heard Sardar Muhammad LatifKhosa, learned Advocate Supreme Court for the appellant, Mr. Tariq Azam Chaudhry, learned Advocate Supreme Court for the respondents and have gone through the record and the proceedings of the case in minute particulars. Sardar Muhammad LatifKhosa, learned Advocate Supreme. Court at the very outset did not press the appeal against respondent Ahmad Hussain, which stands dismissed as not pressed. He, however, with regard to the acquittal of respondent Ahmad Ali, strenuously urged that the learned Lahore High Court has not only misread the evidence but also greatly miss exercised its jurisdiction by placing undue reliance on some extraneous considerations. He canvassed that the prosecution had succeeded in bringing on record sufficient evidence whereby the guilt of respondent Ahmad Ali and his active participation in the commission of offence is established. According to him,the ocular account furnished by Muhammad Azad (P.W.8) and Ghulam Rabbani (P.W.9) is fully corroborated from the medical evidence and the recovery of revolver at the instance of the respondent. He mainly stressed that the F.I.R. Was not correctly recorded, therefore, being dissatisfied with its contents, he filed private complaint. According to him the findings recorded by the trial Court are fully in consonance with the evidence adduced at the trial. It was emphasised that the learned Lahore High Court has unjustifiably drawn arbitrary inferences and conclusions contravening the established norms of justice in evaluation of evidence for criminal matters. The onus of non-production of the tractor during the trial on which the respondents appeared at the spot was erroneously laid upon the appellant by the learned High Court which in fact was the duty of the trial Court. It was for that Court to arrange its production at the trial as the same was given on Superdari to its owner. According to the learned counsel, background of incident and strong motive resulting in the sad incident was conspicuously reflected from material on record whereby direct involvement of respondent stood proved. In support of his contentions reliance was placed on the precedents of this Court in the cases of Allah Bakhsh and another v. Ghulam Rasool and 4 others 1999 SCM R 223 and The State v. Nazir Ahmad and others 1999 SCM R 610.
12. On the other side, the learned Advocate Supreme Court vehemently controverted the above contentions and stated that the learned High Court while acquitting respondent Ahmad Ali had advanced cogent reasons. According to him the ocular evidence is quite in conflict with the medical evidence as such; it lacks corroboration and is unworthy of credit and unbelievable. Even the recovery of revolver from the respondent would be of no significance particularly when no empty was secured from the spot.
13. We have given our anxious thought to the contentions raised at the bar and do not agree with the contentions of the learned Advocate Supreme Court for the appellant mainly for the following reasons:--
(i) Admittedly the private complaint on the basis which the cognizance was taken by the trial Court and the entire evidence was adduced against the respondent Ahmad Ali was filed belatedly i,e, after about three months and four days, for which no explanation of any sort was furnished either at the trial or thereafter.
(ii) Respondent Ahmad Ali was arrested on 3-6-1989 whereas a '32 bore pistol was recovered from his possession on 5-7-1989, but was sent up to face trial along with Ahmad Hussain in the month of July, 1989. In such circumstances, the fact that the private complaint was filed after due deliberation, consultation and in consonance with the injuries numerated in the post-mortem report cannot be ruled out. This gets further support from the fact that the complainant improved his case in the compliant by exaggerating the matter beyond the contents of the F.I.R. By attributing two fire shots to respondent Ahmad Ali whereas third to the absconding accused Saif Ali.
(iii) Similarly both the eye-witnesses Muhammad Azad and Ghulam Rabbani during the examination at the trial exaggerated their case while deposing that respondent Ahmad Ali fired two fatal shots at the deceased which was not the case as stated by the complainant in the F.I.R.
Whereby he was said to have fired a single shot on the front chest of deceased Muhammad Ashraf whereas second fire was attributed to Saif Ali which hit the neck on the front side. This improvement and exaggeration admittedly had been made in order to bring the case in consonance with the medical evidence furnished by Tariq Mahmood (P.W.1).
(iv) Case of the prosecution is further falsified by the version that the complainant party has not disclosed anywhere in their case that the firing was made from a very close range. Perusal of the medical evidence on the contrary reveals the presence of blackening over the wounds and the clothes of the deceased which factor when taken into consideration in juxtaposition to the above ocular version furnished by the eye-witnesses leads to a conclusion that the incident was unseen one.
14. This Court can only interfere with the findings of the acquittal recorded by the learned High Court when the same are either perverse, arbitrary or capricious. Learned counsel though repeatedly asked to point out any of the above instances, but failed.
15. Accordingly, we do not find any defect in the impugned judgment, the same is thus maintained and the instant appeal being devoid of force is dismissed.