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Criminal Appeal No. 242 of 1984, decided on 22nd October, 1984.

---S.417‑‑Penal Code (XLV of 1860), 5.302‑‑Appeal against acquittal‑ Trial Court not violating any principle of law or ignoring any material fact in appraising evidence on record‑‑Conclusion drawn not suffering from any patent error or exception‑‑Even if different view on some of matters could be taken, that would, held, not justify interference with order of acquittal, ensuring safe administration of criminal justice.

Said Baghdad v. Said Mian 1983 S C M R 117 rel.

---S.417‑‑Appeal against acquittal, scope of‑‑Powers of superior Courts to interfere in appeal against acquittal, unlimited‑‑Yet conclusion arrived at by trial Court upon evidence merited proper weight and consideration, before disbelieving finding of fact arrived at by trial Court, who had advantage of seeing witnesses and hearing accused.‑‑[Appeal against acquittal].

Bakhat Baidar v. The State 1982 S C M R 420 rel.

Akhtar Shabbir, Assistant Advocate‑General for the State.

Date of hearing: 22nd October, 1984.

‑‑ Muhammad Amin alias Billa aged 30 years was tried for the murder of Muhammad Asif alias Bholi by learned Additional Sessions Judge, Lahore, who acquitted him vide impugned judgment dated 13‑12‑1983. This is a State appeal against said acquittal.

2. The prosecution case in brief is that complainant Muzaffar Iqbal alongwith his deceased brother Muhammad Asif and Salim P.W. was rerturning home from Anarkali, at about 12.30 mid‑night on 14‑1‑1983 When they reached near the shop of Majha Tandoorwala near Mayo Hospital Chowk, suddenly Muhammad Amin accused came there armed with Chhuri and inflicted injuries on the person of Asif deceased. The alarm attracted the complainant Muzaffar Iqbal and Salim P.Ws. who were following the deceased at some distance. On seeing the witnesses, the accused ran away. The deceased when still alive was taken to the Mayo Hospital, Lahore where he died at about 2.45 p.m., the same day. Muhammad Arshad A.S.I. came to know of this occurrence. He went to Mayo Hospital and recorded the statement of Muzaffar lqbal and registered the case. During investigation, the accused was arrested on 16‑1‑1983. He was produced for remand before a Magistrate on 17‑1‑1983. The said Court got Muhammad Amin accused medically examined at his request. On 19‑1‑1983, the accused got recovered Chhuri P.5 from underneath a heap of earth which was taken in possession vide memo. Exh. P.E. prepared by the Investigating Officer and attested by Rehmat Ali P.W.7 and Muhammad Aslam P.W.8. This was found to be stained with human blood vide report of the Chemical Examiner Exh. P.O. and Serologist Exh. P.Q. The accused was challaned after investigation.

3. The prosecution examined Muhammad Rashid P.W.6 as the Wajtakkar witness, Muzaffar Iqbal P.W.9 and Muhammad Salim P.W.10 as eye‑witnesses. Dr. Farooq Ahmad P.W.13 had examined Muhammad Amin accused on 17‑1‑1983 under orders of the Magistrate and had found four blunt weapon simple injuries on his person. He had also conducted post‑mortem examination on the dead body of Muhammad Asif deceased and had found seven incised wounds on his person. In his opinion, injury No.1 was sufficient in the ordinary course of nature to cause death. Dr. Nasim Mahmood P.W.15 had issued certificate Exh.P.W.15/1 regarding the death of Asif deceased in the hospital. Dr. Muhammad Iqbal Azhar P.W.16 had medically examined Muhammad Asif deceased when still alive and had found three incised wounds on his person. Injury No.1 was grievous and the remaining two injuries were simple in nature. Muhammad Arshad A.S.I. P.W.11 partly investi gated the case and Muhammad Zafar Ullah P.W.14 investigated the case and had challaned the accused.

4. The accused in his statement denied the charge and pleaded innocence. He denied the recovery of Chhuri P.5 and attributed this case on account of previous enmity. He produced five witnesses in defence. Dr. Abdul Hamid Jail Medical Officer had examined Muhammad Amin accused when he was admitted in jail. The other defence witnesses proved some previous F.I.Rs. to show that Muzaffar lqbal complainant and Asif deceased had been challaned in gambling cases before the present occurrence. The learned trial Judge after completing the trial, acquitted the accused vide impugned judgment. It was held by him that the prosecution has failed to prove motive against the accused; that the two eye‑witnesses were not present at the spot and even though Salim P.W.10 was present near the place of occurrence and had taken the deceased in injured condition to Mayo Hospital, was still not reliable because he had made self‑contradictory statement during the trial. It was further held that the eye‑wittnesses were not reliable becuase they had failed to explain the injuries on the person of the accused. The evidence of Wajtakkar witness and the evidence regarding the recovery of Chhuri was also not believed.

5. We have heard the learned Assistant Advocate‑General at great length. In this case we find that the only motive stated in the F.I.R. was that the accused had demanded some money as loan from the deceased but he refused to advance the same which annoyed the accused. In the F.I.R. the amount of loan demanded by the accused was not states. Muzaffar Iqbal P.W. for the first time stated the said amount to t. Rs.100 during the trial. It was further stated by Muzaffar Iqbal P.W, that his brother Asif deceased told him about this motive only fifteen minutes before the alleged occurrence. This story is improbable at, and as such, we find that the conclusion of the trial Court that the prosecution has failed to prove motive is correct.

6. The prosecution examined Muzaffar Iqbal P.W.9 and Muhammad Salim P.W.10, as the eye‑witnesses. The place of occurrence is a bus, thoroughfare near Mayo Hospital Chowk and only 100 metres away from Police Station, Gowalmandi. In spite of that, no witness of the locality has been examined or produced as an eye‑witness. Muzaffar Iqbal is resident of far‑off place. He has not given any reason as to why he had joined his brother at that time and that they were all coming from Anarkali at that odd hour of the night. It is proved from the defence evidence that Muzaffar Iqbal and his brother Asif deceased were gambler and they were prosecuted for gambling. Muzaffar Iqbal was, therefor, a chance witness. His mime was not entered in the register of the emergency ward of the hospital amongst the persons who had accompanied the deceased after the occurrence to the hospital. He was a real brother of the deceased and if present, his presence must have been noted the register. The Investigating Officer found the clothes of Asif deceased torn at the time of preparing the injury statement and inquest report. There is no explanation as to how the clothes of the deceased get torn. This also makes the prosecution case doubtful. Moreover, if Muzaffar Iqbal had been present at the spot and had taken his brother Asif after the occurrence to hospital, his clothes must have got stained with blood. No such stains were found to be present on his cloth. He has, therefore, been rightly disbelieved by the learned trial Court. Muhammad Salim P.W.10 though not related to the complainant part has made self‑contradictory statement during the trial. At one stage he stated that he could not identify the weapon in the hand of the accused at the time of occurrence. Then he changed his statement by saying that he only saw the accused running away from the spot. He again changed his statement by saying that he had seen the accused causing injuries to the deceased and finally, he stated that he did not see the accused inflicting injuries to the deceased. It was further stated by him that it was darkness arid when he reached the spot, he saw the deceased crying and his brother Muzaffar Iqbal present near him raising alarm. He further stated that the name of Muhammad Amit) accused was disclosed to him by Muzaffar lqbal complainant and that he had seen the accused from his back and was not able to identify him. We have perused his statement and get an impression that this witness is trying to favour both the parties which makes him a doubtful witness. Thus, the learned trial Judge rightly discarded his evidence against the accused. Muhammad Rashid P.W.6 is a Wajtakkar witness and had seen the accused running from the spot. It is stated by him that he had gone to the hospital before lodging of the F.I.R. In spite, of that, his name is not mentioned in the F.I.R. and as such, is not a reliable witness.

7. So fax as the recovery of Chhuri P.5 is concerned, it is support, by Rehman P.W.7 who was a co‑gambler with the complainant and his deceased brother. The second witness of recovery is Muhammad Aslam P.W.8. He is brother of the deceased. It is stated by Muhammad Aslam P.W.8 that he was himself interrogating Muhammad Amin accused in the Thana lock‑up. According to Muhammad Arshad A.S.I. there were many cuttings and over writings in the daily diary regarding his departure and arrival back in the Police Station. We have gone through the statements of these witnesses and find that they do not inspire confidence.

8. In our view, in acquitting the accused, the learned trial Court did not violate any principle of law or ignore any material fact in appraising the evidence on record nor we find that the conclusions drawn suffer from any patent error or exception. Even if different view on some of the matters is taken, that would not justify, interference with order of acquittal, ensuring safe administration of criminal justice in circumstances of this case. Reliance for this view is placed on Said Baghdad v. Said Mian 1983 S C M R 117. In another case reported as Bakhat Baidar v. The State 1982 S C M R 420, it was held by the Judges of the Supreme Court of Pakistan that no limitation although can be placed on power of Superior Courts to interfere in appeal against acquittal with findings recorded by trial Court, yet the conclusions arrived at by the trial Court upon such evidence merited proper weight and consideration before disturbing a finding of fact arrived at by the trial Judge who had the advantage of seeing witnesses and hearing accused.

9. In view of the above discussion, we find no merit' in this appeal which is accordingly dismissed in limine.

M. A. K. Appeal dismissed

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