KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.727 of 1996 filed by Mst. Sabiran Bibi, the appellant against the judgment dated 21-8-1996 rendered by learned Additional Sessions Judge, Faisalabad whereby respondents were acquitted of the charge under sections 302/148 and 149, P.P.C.
Before proceeding any further, it may be noted that this appeal was not pressed to the extent of Umar Hayat, Zohra and Bashir, respondents 3 to 5 and notice was issued against Nazir and Bashir, both sons of Shaman, respondents 1 and 2 respectively.
2. Briefly stated the facts of the case are that husband of Mst. Sabiran Bibi, the complainant had died 10/ 11 years prior to 22-7-1994 she had four sons. About 7 years prior to the occurrence, Nazir etc. Had murdered Mst. Shamim, the daughter of the complainant for which a case was got registered against 5 accused, that is, Nazir etc. In that fight, one Zohra of the opposite group was also murdered for which a case was got registered against six persons. Later, through intervention of the Baradari a compromise was arrived at and in terms of the compromise, Kameer gave the hand of his daughter Shahnaz to Umar Hayat son of the complainant. Upon making statement about compromise, Nazir etc. Had been acquitted 5/6 months prior to the occurrence. Four months prior to the occurrence, Kameer had taken back Mst. Shahnaz due to estrangement and handed her over to Nazir son of Shama The complainant asked for the return of Mst. Shahnaz but both Nazir and Kameer refused. Due to this grudge, Nazir etc. Injured Ahmad Yar and Mst. Sakina Bibi. For this firing a case was got registered. At noon on 22-7-1994, the complainant alongwith her son Umar Hayat, Ahmad Yar and Zafar Iqbal proceeded from the house to Jhok Ditta for purchasing iron girders when they reached in front of the house of Noor Nagi, Bashir Ahmad armed with .12 bore double-barrel gun, Nazir Ahmad armed with .12 bore single barrel gun, Umar Hayat armed with .12 bore single-barrel gun, Zohra armed with .12 bore single-barrel gun alongwith Bashir empty- handed emerged from ambush. Bashir raised Lalkara that Umar Hayat etc. Should not escape alive whereupon Bashir fired which hit on the back side of left knee of Umar Hayat and he fell down. The second shot was fired by Nazeer while coming close to Umar Hayat which hit on the tibia, above the left ankle of Umar Hayat. On the alarm of the P.Ws. Several persons gathered at the spot whereupon the accused while firing in the air left the spot. The injured Umar Hayat was shifted to hospital in injured condition but in the way he expired.
3. Investigation of the case was carried out by Muhammad Siddique, S.-I. (P.W.11). He after registration of the formal F.I.R. Went to hospital where the dead body of Umar Hayat deceased was lying. The investigating Officer prepared injury statement Exh. P.1, inquest report Exh. P.F. , then inspected the spot, took into possession the blood-stained earth vide memo. Exh.P.G., site plans Exh.P.B. And Exh.P.B.1 were got prepared from the draftsman and on 28-8-1994, arrested Nazeer, Umar Hayat, Zuhra and Bashir. While in custody on 2-9-1994, Nazeer got recovered .12 bore gun P/7 which was taken into possession vide memo. Exh.P.H. And similarly on 10-11-1994 Bashir led to the recovery of .12 bore gun P.5 which was taken into possession vide memo. Exh.P.D. And after completion of the investigation, all the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned S.P.P. Tendered in evidence report of the Chemical Examiner Exh.P.1, report of the Serologist Exh.P.I/1 and closed the case of prosecution. After that, statements the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. However, after conclusion of the trial, all the five accused were acquitted of the charge.
5. Learned counsel for the appellant in support of this appeal submits that prosecution has proved the motive set up in the F.I.R.; it was a case of promptly lodged F.I.R.; the occurrence had taken place in broad daylight; both the eye-witnesses though related but had no animosity to falsely depose against the respondents; there is no reason to disbelieve the testimony of the eye- witnesses namely Mst. Sabiran and Ahmad Yar; ocular account is fully corroborated by the medical evidence; the learned trial Court did not appraise the evidence correctly as required under the law and for safe dispensation of criminal justice and that grave miscarriage of justice has taken place due to the acquittal of respondents.
6. Learned counsel for the State submits that there are material contradictions in the statements of the P.Ws. So the trial Court was right in acquitting the respondents. He supports the judgment of the trial Court.
7. On the other hand, learned counsel for the respondents submits that both the eye--witnesses apart from being closely related to the deceased were interested and inimical towards the respondents rather they are chance witnesses; ocular account is contradicted by the medical evidence, the eye--witnesses made material dishonest improvements in their statements before the trial Court so as to make in line their statements with post-mortem report of the deceased; motive is always a double-edged weapon rather the prosecution failed to prove the motive and that so far as recoveries from the respondents are concerned they are of no avail to the prosecution as no crime empty was recovered from the spot. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the respondents and the judgment of the trial Court does not suffer from any infirmity so as to call for any interference by this Court.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance.
The motive behind the occurrence was that Mst. Sabiran the widow of Allah Ditta had four sons, seven years prior to the occurrence Nazir etc. Had committed the murder of Mst. Shamim daughter of the complainant, case was registered against Nazir etc., in the same occurrence, according to F.I.R., one Zuhra was also murdered so a case was registered against six persons from the side of the complainant, thereafter the brotherhood of both the parties got the matter patched up between them, Nazir etc. Were acquitted, Kameer father of Zuhra gave hand of his daughter Mst.
Shahnaz to Umar Hayat, 5/6 months prior to the occurrence, the said Kameer four months prior to the occurrence had taken away Mst. Shahnaz due to estrangement of relations and handed her over to Nazir, the complainant asked Karrieer and Nazir for the return of Mst. Shahnaz but they refused. This shows that it was Mst. Sabiran who was aggrieved from the alleged illegal act of respondents so now it was her turn to take the revenge and she took the revenge by getting this case registered against the present 2 respondents and 3 others who are also respondents but appeal to their extent was not pressed even by learned counsel for the appellant. Those three respondents were also found innocent by the Police. No case for handing over of Mst. Shahnaz to Nazir was lodged by Mst. Sabiran and Umar Hayat deceased who was husband of Mst. Shahnaz against Nazir and Kameer because a married woman cannot be handed over to other person and if in fact it was done, then a case should have been got registered. Nothing of any sort having been done, we are of the considered opinion that the prosecution has miserably failed to prove the motive.
Now, we take up the ocular account furnished by Mst. Sabiran P. W.9 (real mother of the deceased) and Yar Muhammad, P.W.10 (real brother of the deceased) According to Mst. Sabiran, the complainant she alongwith her son Umar Hayat, Zafar Iqbal and Umar Hayat (deceased), Ahmad Yar and one Zafar Iqbal who though was an independent witness having no relationship with the deceased but was given up, started from their house in order to purchase iron girder. In our view, there was no necessity of 4 persons going to purchase the girder. Even otherwise, how could the respondents come to know that at such and such time, the complainant party was leaving their house to purchase the iron girder. There is no evidence on record that the respondents were informed by somebody about departure of the complainant party from their house. They were chance witnesses. Moreover, both the eye-witnesses have made dishonest improvements in order to make their statements in line with the medical evidence. In this regard, we may refer here the statement of Mst. Sabiran and her confrontation which starts from page 23 of the paper book and goes up to page 24. The story of Mst. Sabiran in the F.I.R. Was that when they reached in front of the house of Noor Nagi, from ambush, the respondents armed with fire-arms came out. The first shot was fired by Bashir which hit Umar Hayat on the backside of his left knee but before the trial Court she stated that Umar Hayat turned back and the shot hit on the back of his knee. She was confronted with Exh.P.C. Where "he turned back as soon after he received the injury" was not mentioned. This was a dishonest material improvement on the part of complainant. There is further improvement and that is: "I stated before the police that Umar Hayat received injury at his ankle at the hands of Nazeer accused in the courtyard of aforesaid Noor Nagi, confronted, not so recorded".
It is very material improvement on the part of the complainant because according to case of the prosecution, the occurrence had taken place in front of the shop of Noor Nagi. There was no mention of deceased having entered into the shop of Noor Nagi and then in the courtyard after receiving first injury when according to F.I.R. Umar Hayat after receiving first shot fell down on the ground and second shot was fired by Nazeer from a close range which hit Umar Hayat on the upper part of his knee but there is no injury on the ankle in F.I.R. Which was allegedly caused by Nazeer, respondent and therefore, she made the following improvements before the trial Court: "I stated before the police that Umar Hayat received injury at his ankle at the hands of Nazeer accused in the courtyard of aforesaid Noor Nagi. Confronted not so recorded". The blood-stained earth was not taken into possession from Point No.1. There was no trail of blood between Points Nos.
1 to 3. The blood-stained earth was taken into possession from the courtyard of house of Noor Nagi but there is no mention in the F.I.R. That the occurrence had taken place in the courtyard of house of Noor Nagi. None from the house of Noor Nagi has been cited as witness in this case. Mst. Sabiran also stated in cross-examination that all the accused persons while standing in the courtyard of Noor Nagi also fired in the afire, confronted with Exh.P.C., not so recorded. There is no independent corroboration from any source to the tainted testimony of these interested and inimical eye- witnesses. Then there is conflict between ocular account and the medical evidence. Dr. Munawar Ali, P.W.7 had conducted post-mortem examination on the dead body of Umar Hayat deceased. He observed blackening on edges to be present and according to cross-examination of the said doctor blackening appears if shot is fired within a distance of 5 feet. Ahmad Yar, P.W.10 real brother of the deceased during cross-examination stated that the accused fired at the deceased from a distance of 22 feet and then stated 1 or 1-1/2 Kanals. Point No.3 in the site plan Exh.P.B. Is the courtyard of the house of Noor Nagi from where the blood-stained earth was taken into possession. The F.I.R. Was not recorded at E the spot but it was recorded at hospital. Nobody tried to inform the police. The police at his own came to hospital. No crime empty was recovered from the spot (sic) complainant that the accused while leaving the place resorted to aerial firing. Mere recovery of weapons on the pointation of the respondents is thus of no avail to the prosecution. The whole occurrence was shown to have taken place in the bazar in front of the shop of Noor Nagi but the blood-stained earth was taken into possession from inside the courtyard of Noor Nagi.
After scanning the entire prosecution evidence, that is of motive, medical furnished by Dr. Munawar Ali, non-recovery of any empty from the spot and in particular the testimony of two eye-witnesses namely Mst. Sabiran and Ahmad Yar, the findings of the trial Court are neither artificial nor shocking and ridiculous. It has been set at rest by the superior Courts of the country that the Court of appeal would not interfere with acquittal merely because on re-appraisal of the evidence it comes to a different conclusion from that of the Court acquitting the accused provided both the conclusions are reasonably possible. Reliance can be safely placed on Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 Supreme Court 11 guided by the principles laid down in the supra case as to re-appraisement of evidence, we do not find ourselves in a position to interfere with the well-reasoned judgment of the trial Court which is based on proper appreciation of evidence and also confirms to the judicial precedents set by the superior Courts. Resultantly, the appeal is dismissed. The respondent shall stand discharged from their bail bonds.