1991 P Cr (PLP)

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal has been directed against the order of the Shariat Court, dated 6-2-1990 whereby the order of acquittal passed in favour of the respondents by the District Criminal Court, Kotli was maintained. Before dealing with the merits of the case it may be observed that initially the appellant, herein, filed an appeal to the Shariat Court against the order of the acquittal passed by the District Criminal Court but on the objection by the counsel for the respondents that the appeal was not competent, the same was treated and disposed of as revision petition by the Shariat Court. We are of the view that an appeal by son of the deceased was competent to the Shariat Court; and as such the appeal filed by the appellant, herein, should not have been treated as revision; rather the same should have been disposed of as appeal. First we deal with the question as to whether an appeal by a private person, in view of the provisions contained in the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, is competent or not. For appreciating the point, it would be expedient to reproduce the relevant provisions contained in the Islamic Penal Laws Enforcement Act as amended from time to time. Originally section 25 of the said Act was worded as under: Initially there existed no Tehsil Criminal Courts and Shariat Court. However, subsequently, the said Courts were established, by virtue of law and consequently the necessary amendments were made from time to time in section 25 of the Islamic Penal Laws Enforcement Act, 1974, regarding appeals and revisions to the District Criminal Court, Shariat Court and to this Court. Consequently, subsections (1) and (2) of section 25 were amended as under: Finally section 25 was further amended whereby subsections (1) and (2) were substituted as under: The perusal of the above provisions would reveal that neither in the original Act of 1974 nor in any subsequent amendment, the `right of appeal' was stipulated in terms of an order of `conviction' or any order of `acquittal'. The right of appeal was given against the `decision' of the Tehsil Criminal Court and District Criminal Court etc. Even in the original provisions as contained in subsection (2) of section 25, it was not stipulated that the right of an appeal against the order of acquittal was available only to the State. The phraseology used in subsection (2) of section 25 as originally worded was as under: Subsection (1) of section 25 did not make distinction between the right of an `appeal against the order of an acquittal or an order of conviction. Subsection (2) only envisages that the Government can direct the Public Prosecutor to file an appeal in case of acquittal and in that case the period of limitation would be ninety days and not thirty days as was stipulated in case of subsection (1) of section

25. In other words the appeal against an order of District Criminal Court t could be preferred not only by the State but also by a private person irrespective of the fact whether the order was that of conviction or acquittal. Original subsection (2) of section 25 only stipulated that in case of appeal against the order of acquittal passed by the District Criminal Court, the period of limitation for Government would be 90 days and not thirty days, as was the case under subsection (1) of section

25. Subsequently, subsections (1) and (2) of section 25 were amended in terms as indicated above, but again no restriction was placed in subsection (1) that an appeal was competent only against the order of `conviction' and not the order of `acquittal', nor it visualised that the right of appeal was available to a particular person, i.e., accused or the State. The right of appeal was given against the `decision' generally. However, subsection (2) of section 25 stipulated that the right of appeal against an order of acquittal passed by the Tehsil Criminal Court was to be exercised within the period of ninety days. Subsection (2) did not detract from the right of appeal, which was available to the accused or the complainant or the Government under subsection (1) of section

25. Subsequently, by another amendment, the period for filing appeal against the order of the District Criminal Court was enhanced to six months in subsection (1) of section 25 and original subsection (2) was deleted and was substituted by anew subsection whereby provision for lodging appeal against an order of acquittal passed by the Tehsil Criminal Court was made. Evidently, the appeal, against the order of acquittal or conviction could be preferred by any aggrieved person, by the complainant or by the Government. Had the law-giver intended that the appeal in case of acquittal by the Tehsil Criminal Court could only be filed by, the Government, it would have said so in clear terms especially so when previously the original provision in subsection (2) to the effect that Government could direct the Public Prosecutor to file an appeal against the order of acquittal passed by the District Criminal Court was deleted. Thus, in our view, the original provision incorporated in subsection (2) of section 25 that the Government could file an appeal against the order of acquittal or subsequent provision that an appeal against the order of acquittal of the Tehsil Criminal Court was to be preferred within six months did not debar the complainant to file an appeal against an order of acquittal under section 25 of the Islamic Penal Laws (Enforcement) Act. It is settled principle of law that while interpreting a statutory provision words or phrases are to be assigned their ordinary meanings unless the same are defined in the relevant law; besides no word or phrase should be added to or subtracted from the statutory provision. Had the law-makers intended that the appeal in case of an order of acquittal was not competent except by the Government, it would have expressed its intention in clear terms. Besides, there would have been a distinction between the right of appeal against an order of conviction and acquittal. The original provision contained in subsection (2) of section 25 to the effect that the Government could direct the Public Prosecutor to file an appeal in case of order of acquittal appears to have been incorporated to give an extended period of limitation of ninety days as against to a period of thirty days stipulated in subsection (1) of section

25. The aforesaid view is further supported by the fact that subsequently when subsections (1) and (2) were substituted, the period of limitation for filing an appeal under subsection (1)_ of section 25 was retained but the provisions that an appeal against the order of acquittal could be filed by the Public Prosecutor on the direction of the Government were omitted; similarly it was not envisaged under subsection (2) that an appeal against the order of acquittal passed by the Tehsil Criminal Court could only be filed by the Government. The arguments advanced by the learned counsel for the respondents that as there is no, specific provision for filing an appeal against an order of. acquittal in the Islamic Penal Laws Act, the provisions contained in section 417, Cr. P.C. are to be resorted to is not tenable for the simple reason that section 25 clearly stipulates that an appeal against the `decision' of the District Criminal Court, Tehsil Criminal Court and the Shariat Court, as the case may be, is competent. It does not visualise that it is competent only in case of conviction or it is not competent against an order of acquittal. The plain meanings conveyed by the phraseology employed in section 25 of the Islamic Penal Laws Enfocement Act cannot be restricted by surmises or conjectures. The intention of the law giver is to be gathered from actual words used and not on the basis of extraneous considerations or by reading the words or phrase s which are not there. The scheme of the Criminal Procedure Code is different from that of Islamic Penal Laws Act. Section 404 of the Cr.. P.C. says that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in-force. The aforesaid provision restricts the right of appeal. Thus, an appeal against the order of conviction or acquittal is only competent as provided in Chapter XXXI of the Cr. P.C. The provisions contained in sections 404 to 416, Cr. P.C. stipulate appeal against orders of conviction; only section 417, Cr. P.C. envisages appeal against an order of acquittal by the State. Thus, the scope of right of appeal under the Code of Criminal Procedure is restricted as compared with the said right under the corresponding provisions contained in Islamic Penal Laws Act, 1974. The provisions contained in section 25 of the Islamic Penal Laws Act, 1974, postulate an unrestricted right of appeal irrespective of the fact whether the order is that of conviction or acquittal. The word ` A1,a-.s ' used in subsections (1) and (2) of section 25 of the Islmic Penal Laws Act cannot be interpreted to mean that the right of appeal is available only against the order of conviction and not acquittal; the. word ` ' is comprehensive enough to include the case of acquittal and conviction and scope of the right of appeal cannot be narrowed down by resorting to the scheme of the Criminal Procedure Code. Moreover, in case of `Qissas' falling within the ambit of Islamic Penal Laws Enforcement Act, 1974, the Government, under section 27, is not empowered to pardon or remit the sentence awarded under the provisions of the said Act. Needless to say in case of punishment of `Diyyat' the same is to be paid to the heirs of the deceased or the persons injured, as the case may be. Thus, in view of the scheme of the Islamic Penal Laws Enforcement Act, it cannot be said that the right of appeal in case of acquittal is available to the State and not to the complainant or any other aggrieved person. Therefore, we are not impressed by the argument that there being no specific provision regarding the right of appeal in case of an acquittal, one has to fall back on the provisions contained in section 417 of the Code of Criminal Procedure. The distinction between the right of appeal against an order of acquittal and conviction envisaged in the Code of Criminal Procedure is not recognised by the provisions contained in the Islamic Penal Laws Enforcement Act, 1974. Thus, we hold that a complainant or an aggrieved person is not debarred from preferring an appeal against an order of acquittal. The Shariat Court should have disposed of the appeal as such instead of treating the same as revision. The view taken in case reported as Abdul Karim v. Tahir-ur-Rehman 1990 PSC 735 so far as it conflicts with the view taken in the case in hand stands overruled. Brief facts giving rise to the present appeal are that a F.I.R. was lodged by Muhammad Ayub, P.W., at Police Station Pallandri, stating that on 15-9-1982 he had gone to the house of one Amir Muhammad Khan and subsequently, when he along with said Amir Muhammad was on his way to his house and reached near a `Nullah'' at about 6-30 p.m., he saw that Sattar Muhammad, deceased, was being attacked by respondents, Muhammad Afsar, Nazir Ahmad and Khadim Hussain. Muhammad Afsar was armed with a hatchet and he started inflicting injuries on the person of Sattar Muhammad while Khadim Hussain and Nazir Ahmad respondents were exhorting Muhammad Afsar to put the life of Sattar Muhammad to an end. It is further stated in the F.I.R. that the deceased raised hue and cry on which, apart from him and Amir Muhammad Mst. Farooq Jan and Muhabbat Khan, P.W s., were also attracted to the spot and reached there. The motive of the murder is stated to be the previous enmity between the parties as one Mst. Rashida Begum who was previously married to Muhammad Afsar, respondent, subsequently got a decree for dissolution and was married to Ourban Hussain, the son of deceased Sattar Muhammad. Mst. Rashida Begun was the sole heir of the property belonging to her father and, thus, Qurban Hussain the son of Sattar Muhammad, deceased, was constructing a new house at the site where previously the house of the father of Mst. Rashida Begun stood constructed. According to the F.I.R. the incident of the second marriage and the fact that Ourban Hussain, the son of Sattar Muhammad, deceased, was to have gains from the estate of the father of Mst. Rashida Begun gave rise to the feeling of enmity in the minds of respondents and, thus, they took vengeance from Sattar Muhammad, the father of Ourban Hussain, by putting his life to an end. The F.I.R. further reveals that after the incident a cot was brought at the spot and Sattar Muhammad was taken to his house where his dying declaration was recorded by Muhammad Avub, the first informant; shortly afterwards Sattar Muhammad succumbed to the injuries. Muhammad Ayub, first informant, Amir Muhammad, Mst. Farooq Jan and Muhabbat Khan are stated to be the eye witnesses of the occurrence. The members of the District Criminal Court, Kotli, i.e., the Sessions Judge and the District Oazi, wrote separate judgments and acquitted the respondents holding that, the prosecution failed to prove the charge against the respondents beyohd reasonable doubt. Subsequently, the appeal preferred to the Shariat Court by the appellant was treated as revision and was dismissed. We have heard the arguments and gone through the file. Before adverting to the other crucial points involved in the case, it may be observed that the statement of Muhammad Ayub, P.W., who was, the first informant, was recorded twice. In his first statement, he supported the prosecution case and owned the contents of the F.I.R. but subsequently an affidavit sworn by the said Muhammad Ayub, P.W., was brought on the record on 23-9-1983 wherein he resiled from his original statement and deposed that his previous statement was incorrect and neither he nor Amir Muhammad had witnessed the occurrence. After the arguments had been heard by the trial Court, it took note of the affidavit and summoned Muhammad Ayub and again recorded his statement as a Court witness. The order of the trial Court pertaining to recording of the statement of Muhammad Ayub as Court-witness was challenged by way-,of a revision in the Shariat Court but the revision petition was dismissed. In his second statement, Muhamad Ayub categorically stated that he was not an eye-witness of the occurrence and that the contents of the F.I.R. and his previous statement wherein he had stated to have witnessed the accused-respondents committing the murder of Sattar Muhammad were incorrect; he also denied the authenticity of the dying declaration written by him. The trial Court opined that the latter statement of Muhammad Ayub, P.W., was trustworthy and his former statement was not true and was a fabrication. However, the Shariat Court, in view of the two contradictory statements of Muhammad Ayub, expressed the view that none of the statements of the witness was trustworthy. We have given our due thought to the question as to whether in the circumstances of the case the statement of Muhammad Ayub should have been recorded by the trial Court as Court witness. We have come to the conclusion that the trial Court, in the circumstances indicated above, should not have recorded the statement of Muhammad Ayub second time. It is correct that the trial Court has discretion to exercise under section 540, Cr. P.C. to recall a witness and record his statement but such a discretion is subject to all just exceptions; it should not be exercised to fill the lacuna in a case or to encourage a witness to change his loyalty as a result of any pressure or for ulterior motive. The second part of section 540, Cr. P.C. envisages. that the Court shall recall or examine a witness if his evidence appears `essential to just decision of the case'. It is correct that first part of section 540, Cr. P.C. does, not place any such embargo on the powers of the Court but all the same the reason for recalling a witness must be based on sound judicial principles. In the instant case the affidavit placed on the record by Muhammad Ayub, P.W. showed that he had resiled from his previous statement recorded by the Court. The trial Court could decide about the reliability of the witness one way or the other in view of the affidavit and his statement, which had been recorded by the Court. The procedure followed by the Court may open a flood gate for facilitating the practice of winning over the witnesses. If such a procedure is encouraged, there would be no end to a criminal trial. In the instant case, Muhammad Ayub had filed an affidavit in the Court wherein he had deposed that his previous statement recorded by the Court was nothing but lie; the Court should not have called him to record his statement afresh as Court witness because the witness, on his own saying, was not a truthful witness and, thus, his testimony could not be regarded as essential to the just decision of the case; nor there was any other valid reason to recall him as Court witness. The Court, if it was in any doubt, could have summoned the witness only to ascertain as to whether the affidavit was deposed by him. There was no justification for recording the statement of witness and elicit explanation as to why he had resiled from his previous statement. The Shariat Court also committed error in dismissing the revision petition against the relevant order of the trial Court without appreciating the correct connotation of section 540, Cr. P.C. Next, it is to be seen as to whether the order of the acquittal of the respondents is sustainable. The learned Sessions Judge, in his judgment, has observed that it was not possible for the eye-witnesses together at the place of occurrence in the manner in which they stated to have gathered. Somewhat similar observations have been made by the Shariat Court while rejecting the testimony of the eye-witnesses, especially, that of Mst.Farooq Jan and Muhabbat Khan. The houses of Mst. Farooq Jan and. Muhabbat Khan- are only at a distance of few yards from the place of occurrence. They stated that they were attracted towards the place of occurrence by the hue and cry raised by Sattar Muhammad, deceased, when he was attacked by the respondents. The trial Court has discarded the testimony of the aforesaid two witnesses because in its view they were related and inimical, to the respondents. Mst. Farodq Jan,, the daughter-in- law of Sattar Muhammad deceased, stated that her father-in-law had visited her house and she heard hue and cry shortly after he had left her house for his own house. The enmity, which is attributed by the Sessions Judge to Mst. Farooq Jan is that her elder sister, Mst. Sabir Jan, was previously married to Inayat Khan, the son. of Sattar Muhammad, deceased. Subsequently Inayat Khan had divorced her and married the sister of respondents who is still living with him. The learned Sessions Judge has observed as under: According to the learned Sessions Judge she was inimical to the respondents because after the divorce of her sister, Inayat Khan, the son of the deceased, married the sister of the respondents and that relation still existed means that the deceased and the .respondents were related because the sister of the respondents is married to one of the sons of Sattar Muhammad deceased, and that relationship was in existence at the time when the statement of the witness was recorded. It implies that the deceased and the respondents are also related because the sister of the respondents, according to the learned Sessions Judge, was the daughter-in-law of the deceased. Obviously, the relationship would add to the reliability of her statement and not detract from the same. The husband of Mst Farooq Jan could not afford to earn displeasure of her husband by falsely implicating the respondents and thus destroying the matrimonial peace of his brother. Anyhow the factum of the enmity attributed to Mst. Farooq Jan in the circumstances of the case needs reconsideration. As stated earlier, the Courts below have disbelieved the testimony of Mst. Farooq Jan and Muhabbat Khan on the ground that they were related to the deceased and inimical to the respondents. We could not find anything which could be regarded to constitute `enmity' between the respondents and the aforesaid two witnesses. At the most it can be said that the relations between the aforesaid two witnesses and the respondents were not cordial or were strained but even in that, eventuality the question arises as to whether mere relationship with the deceased or strained relations between the*witnesses and the respondents, in the circumstances of the present case, are sufficient to discard the evidence of the aforesaid two witnesses outright. It was for the trial Court to attend to this aspect of the case. We are of, the view that the trial Court has not properly appreciated the statements of Mst. Farooq Jan, Muhabbat Khan and Amir Muhammad, the eye-witnesses, and has taken a superficial view of their statements. It appears that the trial Court returned the verdict of innocence of the accused-respondents after having been unduly influenced by the subsequent statement of Muhammad Ayub, the first informant; who had resiled from the original statement and also denied that he had recorded the dying declaration of Sattar Muhammad, deceased. The testimony of a witness may be held to be untrustworthy if his statement does not inspire confidence, irrespective of the fact as to whether he was a related to a party or inimical to it. The testimony of a witness in criminal trial is to be judged keeping into consideration the overall circumstances of the case and the inherent value of his statement. Even an independent witness may tell lie, whereas an inimical witness may state truth. There cannot be any mathematical formula that a witness is necessarily to be disbelieved merely because he is related or his relations with the opposite party are not cordial inflexible rule of appreciation of evidence can be laid down as to when a witness is to be believed or disbelieved. The statement of witness is to be read as a whole in the light of the circumstances of each case and it should be decided whether the witness is reliable or not. There is yet another aspect of the matter. There has been controversy in the Courts below as to whether Sattar Muhammad, when he was taken to his house after sustaining injuries, , was capable of making dying declaration. However, the perusal of the record shows that there was no controversy that when Sattar Muhammad was taken to his house after sustaining injuries, he was alive and expired some time afterwards. Even Muhammad Ismail, a defence witness, has stated that when he had reached the house where Sattar Muhammad was lying on the cot he was alive. But the Shariat Court expressed the view that in all probabilities Sattar Muhammad had expired on the spot and not in the house where he was taken after sustaining the injuries. This erroneous assumption further prompted the Shariat Court to disbelieve the testimony of the eye witnesses. The aforesaid finding of the Shariat Court shows that it failed to consider the facts of the case iii their true perspective and made the inferences and deductions which cannot be supported from the record. According to the statement of doctor who performed post-mortem Sattar Muhammad could have been alive. after sustaining injuries about four hours. This also implies that the findings of the Shariat Court are without any evidence on the record and runs counter to the admitted stands of both the parties. The question as to whether in fact any dying declaration was made by Sattar Muhammad and was recorded by Muhammad Ayub is altogether a -different matter from the question as to whether Sattar Muhammad was alive when he was taken from the place of occurrence to his house or was dead because that would independently reflect upon the testimony of the eye-witnesses. The learned counsel for the appellant has contended that the Shariat Court has not given any cogent reason for disbelieving the testimony of eye witnesses, particularly that of Mst. Farooq Jan, Muhabbat Khan and Amir Muhammad. He has cited some authorities in support of the proposition that mere relationship is no ground to discard the testimony of a witness and even if it is found that corroboration is necessary in case of a witness who is found inimical to the accused that is furnished in the instant case by recovery of the hatchet which was found blood-stained at the time of recovery. He has also assailed the view of the trial Court that as the witnesses of the recovery memo. of the hatchet were the same who are stated to be the witnesses of the occurrence, the recovery of hatchet is doubtful. The learned Sessions Judge has opined that as the recovery of the hatchet was not made by the Investigating Officer but was made by a Head Constable on the direction of the Investigating Officer, it was doubtful. However, he did not refer to any law in support of his view. The question as to whether the recovery of an article would become doubtful merely because it was not made by investigating Officer himself but was made by his subordinate, on his direction also needs reconsideration. The learned counsel for the appellant has cited some authorities in support of his contention that the Shariat Court, in exercise of its provisional jurisdiction, should have remanded the case back to the trial Court for rehearing arguments in the case. In Khan . The Crown 1971 S C M R 264, retrial was ordered because the trial Court in acquitting the accused had left the evidence untouched and acted in a perverse manner. In Mst. Sardar Begum v. Fazal Hussain P L D 1986 Azad J&K 210, it was observed that provisional powers conferred on the High Court are exercisable in case where the order is found to be illegal. It was further observed that in such a case the Court is -competent to remand the case and direct the hearing of arguments (sic) evidence which (sic) was held that where the acquittal is based on complete record, the retrial would mean reconsideration of the evidence already on the record and to give fresh judgment. In Muhammad Hussain,, v. Muhammad Imsail 1969 S C M R 697, the. judgment of the Sessions Judge was set aside and the case was remanded with the direction that appeal filed by the aggrieved person should be heard afresh by the Sessions Judge. The learned counsel for the respondents vehemently argued that the order of acquittal passed by the trial Court cannot be set aside until and unless the judgment is perverse or the acquittal has resulted in miscarriage of justice. The learned counsel has referred some authorities in support of his contention. In the matter of Sh. Abdul Kareem, an Advocate P L D 1950 Lah. 439, it was observed that where the Government has not appealed, the retrial could be ordered only where the acquittal is based on a view of evidence, which no reasonable judicial officer, anxious to do justice, could possibly take. In Shera v The Crown P L D 1954 FC 141, it was held that section 439, Cr. P.C. authorises the High Court to enhance the sentence. This, however, was subject to the qualification that the High Court cannot reverse the finding of the acquittal into one of conviction. It was opined that the provisions contained in sections 423 and 439 of the Code -of Criminal Procedure should not be availed in such a manner as to reverse the finding of acquittal under the cloak of merely altering the sentence. ' In the State v. Limed Ali P L D 1967 Kar 440, it was observed that in case of acquittal the view of the trial Judge is to be given weight and the finding of acquittal should not be ordinarily interfered with, In Feroze Khan v.. Captain Ghulam Nabi Khan P L D 1966 SC 424, the facts were that one Feroze Khan was convicted under section 307 Pakistan Penal Code. He was acquitted, on appeal, by the Additional Sessions Judge who gave effect to his plea of private defence of person. The Provincial Government declined to appeal against the acquittal. However, the complainant moved the High Court by way of a revision and a single Judge in the High Court set aside the order of the acquittal and directed a rehearing of the appeal by the learned Sessions Judge. The appellant obtained special leave to appeal to the Supreme Court. It was held by the Supreme Court that the view taken by the Courts below was reasonable on the consideration of the facts and the evidence and the mere fact that alternative view could betaken is not sufficient to justify the remand of the appeal for rehearing. In State v. Muhammad Afsar Khan 1985 P Cr. L J 495, it was observed that the Supreme Court would not interfere with the verdict of innocence in favour of the accused -by the High Court unless the judgment demonstratively shows that none of the ground upon which the High Court acquitted the accused was available, though a different view of the matter can be possible. Apart from the above-cited authorities, the learned counsel has also referred to the cases reported as Ali Hyder v: The State 1984 P Cr. L J 2673, Allah Ditta v The State 1985 P Cr. L J 1234, Arshad alias Ashraf v The State 1985 P Cr. L J 1728 and Talib v The State 1985 P Cr. L J 2025. However, these latter authorities show that in the said cases the appeals were 'riled against the orders of conviction and. thus, we need not comment upon the principle enunciated in the said authorities. Those authorities basically pertain to the point as to whether there was sufficient material for conviction of accused persons or not. We have. no quarrel with the proposition that an order of acquittal should not ordinarily be disturbed but at the same time we may point out that if an acquittal order is found to be contrary to the settled principles of law, the High Court or the Shariat Court, as the case may be, can definitely set aside such an order. Apart from misreading or non-reading of material evidence, wrong approach to case in appreciating the evidence or discarding the evidence on the grounds not recognised by law would constitute valid grounds for setting aside an order of acquittal Whether an order of acquittal is preserve or not would depend upon the nature of the illegality committed by the Court while recording the order of acquittal. If the mistake committed by the Court is of such a nature that it has resulted in the miscarriage of justice, the acquittal order would fall within the ambit `perversity' and the same should be set aside in exercise of provisional jurisdiction. As has already been indicated above, we have come to the conclusion that the trial Court has made an erroneous approach to the case while deciding the question of innocence or guilt of the accused, and the Shariat Court, instead of correcting the mistake committed by the trial Court, has drawn conclusions which cannot be supported from the record. In the instant case, as indicated above, there was no material whatsoever to infer that Sattar Muhammad had expired on the spot and he was found dead at the place of the occurrence by the witnesses. There is no material to support such findings. In fact that findings of the Shariat Court are contradictory to the record. Similarly, we are at the loss to understand as to how the Shariat Court affirmed the findings of the trial Court that it was not possible for the eye-witnesses `to gather on the spot in the manner in which they have stated to have done so'. We could not find out as to what were those circumstances, which weighed with the trial Court and the Shariat Court to come to the conclusion that the witnesses could not be attracted to the spot in the manner in which they have stated. It can be said about Muhammad Ayub and Amir Muhammad that they being casual witnesses, their testimony is open to doubt but no such argument is available nor was advanced so far as Mst. Farooq Jan and Muhabbat Khan, P.W s. are concerned. Their houses are situated at a short distance from the place of occurrence and according to their statements, they were attracted to the spot by the hue and cry raised by Sattar Muhammad when he was assaulted by the respondents. Whether they state truth or not is a different matter but they cannot be regarded as unnatural or casual witnesses. We would have dealt with some other aspects of the case which have been overlooked by the Courts below but we refrain to do so because that may prejudice the case of any of the rival parties and, thus, we confine ourselves to observe that we are of the considered view that a miscarriage of justice has resulted in this case due to wrong approach to the case and misreading of the record. In the light of what has been stated above, we accept the appeal, set aside the orders of acquittal passed by the trial Court and the Shariat Court and remand the case back to the trial Court with the direction that it shall rehear the arguments in the light of the observations made above and decide the case afresh according to law. The bail bonds and personal bonds previously executed by the accused-respondents, if any, are hereby cancelled. However, in view of the circumstances of the case we allow bail to respondents, Nazir Ahmad Zia and Khadim Hussain in the sum of Rupees one lac consisting of two sureties each and personal bonds in the like amount to the satisfaction of any Magistrate 1st Class failing which they shall be detained in the judicial lock-up. So far as Muhammad Afsar Khan, accused-respondent, is concerned, he shall be detained in the judicial lock up Before parting with the case we may observe that the members of the District Criminal Court who passed the order shall not hear this case after remand. It may be further observed that during the course of arguments the learned counsel for the appellant has argued that the purgation of the witnesses has not been performed. It has been recorded by the Sessions Judge in his order that the purgation had, in fact, been performed and there is also a letter on record which was written to the `Muaaki' to do the purgation. As we are otherwise remanding the case, the trial Court shall also look into this aspect of the matter too. N.H.Q./289/S.CA. Case remanded,