1970 PLP 755 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioner in this case was tried along with another person on a charge under section 307/34 of the Penal Code by a Section 30 Magistrate who acquitted them both on the 23rd July 1969. On an appeal against acquittal by the State the High Court set aside the acquittal of the present petitioner, convicted him under section 308, P. P. C. and sentenced him to rigorous imprison ment for one year as also to a fine of Rs. 500 or in default further rigorous imprisonment for six months. The acquittal of the co- accused was, however, maintained. The petitioner now seeks special leave to appeal to this Court. The. prosecution case against the petitioner was that on the 22nd August 1965, at about 7‑30 p.m. he was found grappling with one Gut Ahmad (P. W. 6) while armed with a pistol. The Station House Officer, Hashnagri Police Station actually came upon the scene and with the assistance of two persons who were present at the place, disarmed the petitioner and arrested him. Gul Ahmad (P: W. I) then reported to the S. H. O. that the children of the petitioner had broken one of the glass‑panes of a window of his house by pelting stones. He protested to the petitioner and requested him to admonish his children. On this an altercation took place and the petitioner at once took out a pistol from the folds of his trousers and fired two shots at him one after the other. Then the petitioner and his co‑accused got hold of him but in the meantime the Police Officer arrived and saved him. The Police Officer also seized two empty shells and a bullet from near the spot and sent Gut Ahmad and both the accused to the hospital for examination. Five superficial abrasions were found on the person of Gut Ahmad, one on the person of the accused Abdul Aziz and ten on the person of the petitioner. The doctor also found smell of alcohol coming from the mouth of the petitioner. At the trial the prosecution cafe was supported by Gul Ahmad (P. W. 1), Nauroz and Bahadur (P. Ws. 2 and 6), the S. H. O. Mohammad Yaqoob Khan (P. W. 4) and Head Constable Mohammad Yousaf (P. W. 5): The Magistrate disbelieved Nauroz and Bahadur, because, their names were not mentioned in the First Information Report but he failed to notice that the S. H. O. had already mentioned their names in his own report. The other evidence was disbelieved, because, he thought it to be contradictory and discrepant. The Magistrate was also of the view that the defence of the petitioner that the pistol went off accidentally in the course of the grappling was more probable. The High Court took the view that when the incident was admitted by the petitioner himself, the only question that arose for consideration was as to whether the pistol had gone off accidentally during the grappling or was deliberately fired, as suggested by the prosecution. The circumstances established in the case clearly negatived the possibility of the pistol going off accidentally, because, then there would not have been two shots nor would the two shots have hit the wall near the place where the victim was standing at points in close proximity to each other. No cogent reasons were, however, given for disbelieving the disinterested witnesses like the S. H. O., the Head Constable, and Bahadur, particularly when their oral testimony was corroborated by the circumstances of the case. If the pistol was in the pocket of the petitioner or in the folds of his trousers and it had gone off accidentally there would have been corresponding holes in his pocket or his trousers. No l evidence was led to show that there were such corresponding holes. The suggestion that the pistol went off accidentally, therefore, was clearly not tenable. The trial Court had 'also not taken into account the fact that the petitioner had possibly consumed alcohol before the incident, as the smell of alcohol was coming from his mouth even when the doctor 'examined him. The superficial abrasions both on the petitioner's person as well as on the person of Gut Ahmad, however, confirmed that there was grappling. In the circumstances the High Court was also right in taking the view that it is quite possible that the complainant might have abused the petitioner first and due to this provocation the petitioner took out his pistol and fired. The shots missed the victim possibly because the petitioner was under the influence of alcohol. Then the victim Gut Ahmad grappled with the petitioner. The offence was therefore, rightly held to be one under section 308 of the Pakistan Penal Code. Learned counsel, appearing in support of this petitioner contends that this was not a fit case in which the High Court should have interfered with an acquittal. We are unable to agree, for, in an appeal against acquittal under section 417, Criminal Procedure Code the whole case is open before the High Court and L) the High Court is entitled to come to its own independent assessment of the evidence although it must give due weigh: and consideration to the views of the trial Court which had the privilege of observing the demeanour of the witnesses while they were giving evidence. Having heard the learned counsel and perused the judgment of both the Magistrate as well as the High Court we have no hesitation in coming to the conclusion that the Magistrate had not given cogent reasons for acquitting the petitioner. The High Court was, therefore, clearly right in reviewing the evidence and coming to a different conclusion in the interest of preventing a miscarriage of justice. We see no ground for interference in this matter. This petition is, accordingly, dismissed. Petition dismissed.