1996SCMR390 (PLP)

For the reasons the appeal is allowed, the judgment and order of the Courts below as regards Muhammad Idrees and Muhammad Hussain are set aside and the case is remanded to the Sessions Judge, Kasur, for re‑trial of the accused and decision afresh on merits. The question of additional evidence is to, be considered by the Trial Judge. SAIDUZZAMAN SIDDIQUI, J FAZAL ILAHI KHAN. J SAAD SAOOD JAN, J. ‑‑‑I regret I am unable to support the judgment proposed to be delivered by my learned brother Fazal Ilahi Khan, J.

2. Bashir Ahmad and his sons, Muhammad Idrees and Muhammad Hussain, were tried by the Sessions Judge at Kasur on the charge under section 302, read with section 34, Pakistan Penal Code for causing the death of Zulfiqar alias Kala, deceased. The learned Sessions Judge found them not guilty and acquitted them of the said offence. The State accepted the judgment of the trial Court but Khushi Muhammad, father of the deceased, filed a revision petition in the High Court. A learned Single "Judge reappraised the evidence on the record and affirmed the findings of the trial Court; accordingly, he dismissed the revision petition. Khushi Muhammad then approached this Court for leave to appeal. The leave was granted with the following observations:‑‑ "After going through the record we feel that the submissions made by the learned counsel required examination. Accordingly leave is granted against Muhammad Idrees and Muhammad Hussain respondents but the petition in so far as it relates to Bashir Ahmad respondent is dismissed without prejudice to the case of aforesaid respondents on this ground."

3. The occurrence took place on 30‑7‑1988 at 11‑00 a.m. A day earlier, according to the prosecution, there had been a quarrel among the children of the parties. At the relevant time the deceased along with his brother and father was returning to his house from a garden which he had taken on lease. When he reached near the Haveli of Bashir Ahmad the latter with his two sons Muhammad Idrees and Muhammad Hussain, came out. Muhammad Idress was armed with a shot‑gun, Muhammad Hussain was carrying a Dang and Bashir Ahmad was empty‑handed. As soon as they confronted the deceased Bashir Ahmad raised a Lalkara. Immediately thereafter Muhammad Idrees fired at the deceased who was hit in the left flank. Muhammad Hussain then struck the deceased on the head twice with his Dang. The deceased fell down while Bashir Ahmad and his sons ran away. Apart from the father of the deceased the occurrence was also witnessed by one Muhammad Zafar.

4. Soon after the occurrence the deceased was removed by his father and some others to the local civil hospital. He died before any medical assistance could be given to him.

5. Police Station City Kasur was at a distance of six furlongs from the scene of occurrence. After hearing about the occurrence Sub‑Inspector Noor‑ul Hassan reached the hospital. Khushi Muhammad (P.W.6) made a statement before him on the basis of which a case was registered at the said police station on the same day at 12‑30 p.m.

6. The post‑mortem examination of the deceased was performed by Dr Rafiq Hussain who was posted as Medical Officer in the Civil Hospital at Kasur. The deceased had three injuries on his person. One was a fire‑arm wound on the left lateral side of the chest. The other two were lacerated wounds on the top and back of the head. One of the lacerated wounds, the doctor opined, could be caused by a fall on a hard surface. There was blackening around the fire‑arm injury.

7. After their arrest recoveries of the weapons of offence were made from Muhammad Idrees and Muhammad Hussain but these are of no significance as there is nothing on the record to show that the weapons so recovered were used to inflict injuries on the deceased during the course of occurrence. Bashir Ahmad held a licence for the gun allegedly produced by Muhammad Idrees.

8. Bashir Ahmad and his sons pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceased and alleged that they had been falsely implicated on account of business rivalry.

9. The case of the prosecution against Bashir Ahmad and his sons rests entirely upon the ocular testimony provided by Khushi Muhammad (P.W.6) and Muhammad Zafar (P.W.7). Their presence at the scene of occurrence was sought to be confirmed by the prosecution from the statement of Allah Wasaya (P.W.5) who allegedly reached there shortly after the attack on the deceased. As already pointed out Khushi Muhammad . (P.W.6) was father of the deceased. Allah Wasaya (P.W.5) was a ether of Khushi Muhammad (P.W.6). Although Muhammad Zafar denied 'that he had Any connections with Khushi Muhammad (P.W.6) but Allah Washya admitted that Khushi Muhammad (P.W.6) and Muhammad Zafar (P.W.7) were partners in procuring leases of gardens. The trial Court as well as the High Court subjected the testimony of these witnesses to close scrutiny and thought that it was not of the quality upon which conviction of the accused on a capital charge could be founded.

10. The law governing appeals against acquittal has been reviewed at some length by this Court in the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). The conclusions at which this Court arrived are: "(I) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re‑appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well‑accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the Trial a Court below confirmed the assumption of innocence. (2) The acquitted will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis‑read such evidence; (c) received such evidence illegally. (3) In either case the well‑known principles of re‑ appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on re appraisal‑ of the evidence it comes to the conclusion different from that of the Court acquitting the‑accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. " I have kept these observations before me in recording my judgment.

11. As stated in the First Information Report the motive for the occurrence ‑was a quarrel among the children of the parties. The only witness who deposed about the quarrel was Khushi Muhammad (P.W.6). He admitted in his cross-examination that he was not present at the time of‑the quarrel. There is thus no direct evidence about it. However when appeared in the Court‑he gave a more detailed version about the incident which had taken place a day earlier. He '1r stated:‑‑ "A day before the occurrence there had been a quarrel between the children with Idrees accused. Idrees and a Badmash; came to our house in the evening. Myself and Zulfiqar (i.e., the deceased) had gone to the police post. My report was entered at the police post and the police accompanied me to the house of the accused. When they were at the door of the house of the accused, the accused ran away on seeing them. " A copy of the report recorded by the police was not produced at the trial. In his cross‑examination Khushi Muhammad (P.W.6) stated that he had reported the incident to a fat police officer. The said fat police officer was admittedly Sub Inspector Noor ul Hassan (P.W.10). This police officer did not utter a word about the report allegedly made to him a day before the occurrence. In the circumstances the Trial Court and the High Court could not be said to have erred in holding that the motive had not been established by the prosecution.

12. As stated earlier the occurrence took place near the Haveli of Bashir Ahmad which is situate, as the Investigating Officer reluctantly admitted, in a blind street. Neither Khushi Muhammad (P.W.6) nor Muhammad Zafar.(P.W.7) lived in that street. If the statement of Khushi Muhammad (P.W.6) with regard to motive, as reproduced above, was to be believed the venom of the accused party should have been directed against him for it was he who had first gone to the police station to lodge a report and later taken the police to their house. The deceased played merely the minor role of accompanying his father to the police station. It is therefore surprising that even though Khushi Muhammad (P.W.6) was present on the spot tie had been spared and instead the deceased was made the main target of attack by the accused party. In the circumstances the presence of Khushi Muhammad (P.W.6) at the scene of crime at the relevant time becomes somewhat doubtful.

13. Zafar (P.W.7) lived, in Basti Inayat Shah which according to the Investigating Officer was five or six acres from the place of occurrence. On his own showing he was a chance witness and, as earlier stated, he was a business associate of Khushi Muhammad (P.W.6).

14. The statement of Allah Wasaya (P.W.5) with regard to the presence of Khushi Muhammad (P.W.6) and War (P.W.7) at the spot, on account of his relationship with Khushi Muhammad, can hardly be placed at a higher footing than that of his brother.

15. If the occurrence is reconstructed entirely in the light of the medical evidence it will appear that the deceased was struck in the head first by a blunt weapon. On receiving the‑blow he fell down on a hard surface when he suffered his second lacerated wound. As he lay prostrate in the street the assailant armed with the gun approached him and by placing the barrel a few inches away from his body fired, hitting him in, the left flank. This picture drawn from the medical evidence is somewhat different from the ocular account which states that on seeing the assailant the deceased tried to turn back; before he could retreat, he was fired at and given Dang blows. This discrepancy in the two pictures also makes it necessary that the ocular account should not be acted upon unless it is corroborated by independent evidence.

16. From the side of the complainant party much reliance was placed on an alleged admission by the accused party in a bail application filed on behalf of Muhammad Hussain in the Court of Session at the pre‑trial stage. The relevant extract from the application reads as follows:‑‑ Now this application was not pari of the evidence on the record. The attention of none the accused was drawn to it during the course of his examination under section 342 of the Criminal Procedure Code. Apart from that the version contained in this admission is at variance with the case of the prosecution, for besides raising pleas of private defence of person and accidental death it admits tire presence of Bashir Ahmad alone on the scene of occurrence at the relevant time. In view of this position the prosecution is not likely to rely upon it in the retrial as directed by my learned brother.

17. For the reasons stated above I am of the opinion that the Courts below were justified in not accepting the ocular evidence on its face value. I would accordingly dismiss the appeal. COURT ORDER In view of the majority opinion this appeal is allowed, the judgment and order of the Courts below as regards Muhammad Idrees and Muhammad Hussain are set aside and the case is remanded to the Sessions Judge, Kasur, for retrial of the accused and decision afresh on merits. N.H.Q./K‑293/S Appeal allowed