P L D 1969 Supreme Court 101 (PLP)

The occurrence in which eight persons lost their lives and three others were injured by gun shots took place over a trivial dispute concerning a kotha built by the grandfather of Yara P. W. 18, a non proprietor on common land appertaining to Patti Qaimana in village Jhawarian, District Sargodha. Both‑ the complainant party and the accused persons other than Khuda Bakhsh and Rafique belong to this Patti, the former being the members of the Hittama n family and the latter members of the Qaimana family. In accordance with usual Riwaj‑i‑am the site of the kotha was to revert to the proprietors of Patti Qaimana in case of abandonment of residence by the non‑proprietor owner. About two years before the occurrence Yara aged 12 years having lost his parents abandoned his residence in village Jhawarian and went over to live with his sister in village Hadali. The super‑structure of the kotha was not removed by Yara and it became the bone of contention between Hakamana and Qaimana families. The accused persons managed to take possession of the kotha and on the 17th November 1964, they started constructing boundary walls around it. By Juma Peshi time (1‑30 p. m.) they had constructed the eastern wall measuring 55 feet in length and 4 feet in height and western wall 34 feet in length and 3 feet in height. Haji Muhammad Khan and Allah Bakhsh (P. Ws.) who lived nearby came to the site and asked Ghulam Muhammad alias Gulla, accused, not to raise construction on the common land. The accused persons, however, were adamant. In the meantime Bhai Khan son of Haji Muhammad Khan P. W. 28, arrived there and started demolishing the western wall from the southern end. The accused persons thereupon entered the kotha of Yara and each of them came out armed with a gun. Haji Muhammad Khan and Allah Bakhsh (P. Ws.) at once retreated and took cover behind the corner of the street adjacent to the house of Fazal Ilahi Marassai to the South. Bhai Khan too retreated about two paces when Ghulam Muhammad alias Gulla, accused, fired from the gun which he carried and hit him in the chest. Bhai Khan was brought to the ground anti died instantaneously. On hearing the report of the gun Mst. Jallan, mother of Bhai Khan, deceased, Muhammad Bakhsb, Khanjar Ali, Lalla and Wali arrived on the scene and beseeched the accused persons not to commit any more aggression. The reply was a volley of gun shots fired by Bhai Khan, Muhammad Hayat, Allah Bakhsh, Rehman, Allah Dad and Umar Hayat, accused. All the six were hit as a result of which Muhammad Bakhsh and Mst. Jallan died on the spot, while Ali and Khanjar succumbed to their injuries on the same evening in the local Civil Hospital. Lalla suffered only a minor injury, but Wali was hit by a large number of pellets and both were brought to the ground. Thereafter Muhammad Yar, Shera, Jalal and Dost Muhammad who too lived in the neighbourhood and were'' related to the victims of the assault unwarily arrived on the spot to intercede with the accused persons. They too were fired upon by Dost Muhammad alias Dossa, Muhammad Yar, Rafique, Khuda Bakhsh and Rehman, accused. The first three were hit and died on the spot while the last‑mentioned suffered a large number of injuries and along with others dropped on the ground. The accused persons then picked up the empty cartridges and went away raising lalkaras and firing more shots at random. Thereafter Allah Bakhsh (P. W. 27) leaving behind Lalla (P. W. 29) to guard the dead bodies of the deceased persons and the injured prosecution witnesses left for the Police Station at a distance of 3/4 mile and lodged there the first information report, Exh. P. S., at 2‑15 p.m. He gave therein the details of the occurrence and claimed that Malik Allah Yar, Pleader, with whom the complainant party had certain disputes was responsible for the assault by the accused persons. After recording the first information report Chau dhri Abdur Rehman, S. H. O., arrives on the spot at 3‑55 p.m. and remained busy in the preparation of the inquest reports of the five dead persons and injury statement of Lalla (P. W.) who was present there. He then went to the Civil Hospital and prepared the inquest reports of the remaining three dead persons and the injury statements of the other two prosecution witnesses. Later on he inspected the place of occurrence from near the newly constructed compound walls of the kotha of Yara Machi, took into custody blood‑stained earth from nine different places which were located sufficiently apart from one another indicating that each of the deceased and injured persons was hit by separate shots. No empties were recovered from the spot. During the trial the prosecution case was supported by the direct evidence of Allah Bakhsh (P. W. 27), informant, Haji Muhammad Khan (P W. 28) father of Bhai Khan, deceased, and husband of Mst. Jallan, deceased, Lalla (injured) P. W. 29, Wali (injured), P. W. 30, and Dost Muhammad (injured), P. W.

31. The trial Judge did not accept the presence of Allah Bakhsh and Haji Muhammad Khan, P. Ws., for the reasons: (i) that the statement made by Allah Bakhsh (P. W.) to the Police that he along with Haji Muhammad Khan was the first to arrive at the spot and had tried to pursuade the accused not to raise the construction on the common land was incorrect; and (ii) that Allah Bakhsh being the leader of the complainant party if he along with Haji Muhammad Khan was present on the spot, the accused persons would not have spared his life. The evidence of the remaining three witnesses who were injured was considered to be trustworthy, but was not relied upon in case of Bhai Khan, Umar Hayat, Khuda Bakhsh and Rafique, who as seen above, were in view of the plea of alibi given the benefit of doubt and acquitted. The convictions of the remaining nine accused was rested by the trial Judge on the findings set out in paragraph 32 of his judgment:

‑ " Para.

32. So far as the other nine accused are concerned the evidence of three eye‑witnesses remains unshaken against them. The number of injuries inflicted on the deceased persons and these witnesses was so large that these injuries could well have been inflicted by nine gunmen. All these nine accused are Jhawaris and are related to each other. They had a common interest in seeing that Gulla accused and others succeeded in constructing the walls around the disputed place. It may be urged that the injuries found on the deceased persons and the injured witnesses could well have been inflicted by a lesser number of gun men than nine and that consequently the case against all these nine accused also becomes doubtful. Such contention does not appear to me to have any such force. This argument can be advanced in every case in which the number of the accused is numerous. When the eye‑witnesses are positive that these accused did fire the shots and when what they state is not improbable in the nature of things the mere fact that there is a possibility of some one or more of these persons being innocent and having been falsely involved does not in my opinion make the case doubtful against any of them. The burden of proof in such a matter shifts to the accused who has failed to prove his innocence or who has failed to bring on record any such material which would make the case against him doubtful. If there is no such material on the record which either prove the innocence of these accused or renders the case against them in any way doubtful the sweeping type of argument that there is a possibility of one or more of them being innocent does not cut any much ice. If any of these accused were not present amongst the gunmen they must be present some where else. They could have produced some sort of evidence to prove that at the time of occurrence they were not present at the spot, but were present somewhere else. No such evidence has been produced. I considered that the prosecution have absolved themselves of their duty in proving beyond any manner of doubt that these nine accused committed the offence for which they have been tried." The learned Judges in the High Court concurred with the view expressed by the trial Judge that the evidence led in proof of the charge of criminal conspiracy was not trust worthy, but disagreed with the finding that Allah Bakhsh and Haji Muhammad Khan, P. Ws., had not seen the occurrence or that the evidence of the remaining three eye‑witnesses on whom the trial Judge had relied was in the light of the evidence in support of the plea of alibi set up by Bhai Khan, Khuda Bakhsh and Umar Hayat, accused, not free from doubt. On a proper analysis of the statements made by Aurengzeb, P. W. 4, Ghulam Abbas, P. W. 5, and D. Ws. 2 to 4 on which the defence relied in support of the alibi of the aforesaid accused, the learned Judges in paragraphs 21 and 24 of the judgment in appeal found as follows :‑ " Para.

21. We have examined the evidence on this issue. Aurangzeb, Head Constable, P. W. 4, is a formal witness. He deposed that he was not in a position to contradict the suggestion that Bhai Khan and Khuda Bakhsh, accused, accompanied Gul Muhammad, a Member of the Union Council, to the Police Station. He admitted that Bhai Khan and Khuda Bakhsh accused were not known to him and therefore, he could not say who accompanied Gul Muhammad. He admitted that Gul Muhammad offered to produce some documents of title in connection with the disputed plot of land and when he was presenting those documents to him, he heard some one saying in the deohri of the police station that murders had taken place in village Jhawarian, whereupon Gul Muhammad and his two companions left the police station. He is belied by F. G Ghulam Abbas, P. W. 5 and Ch. Abdur Rahman, S. H. O., P. W. 23 Ghulam Abbas, P. W., in cross‑examination deposed that Ghulam Muhammad alias Gulla accused was supervising the construction. He told Gulla accused that he was wanted at the police station by the M. H. C. Ghulam Muhammad told him that he had documents of title about that land with him arid that he would shortly be coming at the police station along with those documents. On his return he started saying his Juma prayer in the mosque of the police station and that he did not see Gulla, Bhai Khan or Khuda Bakhsh accused, in the police station. Ch. Abdur Rehman, S. H. O. in cross‑examination deposed that he had gone to Sargodha on the morning of 17th November 1964 and had reached back at the police station at about I1‑45 a.m. He again left the police station at 12 noon mid‑day for the checking of the traffic and reached back at the police station at 12‑30 p.m. Thereafter he remained at the police station in his office till the‑writing of the first information report. He stated that he did not see Bhai Khan, Khuda Bakhsh, accused, and Gul Muhammad, Member, Union Council, or Haji Muhammad Khan, P. W. at the police station on the day of occurrence before the incident. Bhai Khan accused in his statement before the committing Magistrate did not plead that at the time of the incident he was at the police 6tation. At the trial he stated that he went to the police station along with the documents of title of property accompanied by Gul Muhammad, a Member of Union Council, and Khuda Bakhsh accused also joined them on the way at the Bus Stand. While he was busy in talking with the M. H. C. he learnt of the incident. Khuda Bakhsh accused in his statement before the committing Magistrate stated that he went to the police station with Gul Muhammad and Bhai Khan accused joined them there. In the police station he learnt about the incident. At the trial he stated that he went to Sargodha a day preceding the day of occurrence. When h was back to his village on 17th November 1964, and got down from the Bus at the Bus Stand Jhawarian and was about to proceed for his Dera which is at a distance of two miles from the place of incident he met Bhai Khan accused and Gul Muhammad who asked him to accompany them to the police station as one Mst. Roshanai had made an application to the police against Gul Muhammad. He accompanied them to the police station and it was there that he came to know about the present crime. Both Bhai Khan and Khuda Bakhsh made inconsistent statements as to their presence at the public station. The evidence of H. C. Aurangzeb, P. W., does not inspire confidence that Khuda Bakhsh and Bhai Khan accused were at the police station at the time of incident. The up‑shot of the whole discussion is that it is difficult to sustain the finding of the learned Sessions Judge that Bhai Khan and Khuda Bakhsh, accused, respondents, were at the police station at the time of incident. " Para.

24. According to the time‑table of the P. W. R. for the year 1964 there was only one train "Chanab Express" which used to leave Bhalwal in the evening at 4‑18 a.m. Bhalwal is at a distance of 13 miles from Jhawarian Town. Umar Hayat accused before Committing Magistrate stated that he left Jhawarian on 16th November 1964, for his Unit at Channari in Muzaffarabad (A. K.) and reached there on 17th November 1964, and that he was not present in his village on the day of occurrence. At the trial he stated that he was employed in the Army and was on duty at Channari in Azad Kashmir on the day of occurrence. He left the village in the evening of 16th November 1964, and had boarded a train at Bhalwal. He sent a telegram Exh. P. S. S., to his officer on 16th November 1964. The defence did not make any attempt to produce that voucher to show the departure of Umar Hayat for the obvious reason that Umar Hayat had boarded the train on the evening not of the 16th of November but of the 17th of November 1961, by Chenab Express which left Bhalwal for Rawalpindi at 8‑30 p.m. and reached Rawalpindi at 4‑18 a.m. As such it was quite easy for him to reach Channari by 12 noon on the 18th November 1964 which is at a distance of 120 miles from Rawalpindi. Furthermore, if he intended to leave on the 16th of November 1964, he would not have sent the telegram. In view of the documentary evidence on the file it would be difficult to accept the oral testimony of Naik Muhammad Yusuf D. W. 2, and Sub‑Major Gul Muhammad D. W.

4. The evidence of alibi is tissues of lies." The plea of private defence of property raised by the defence was also ruled out by the following discussion appearing in paragraph 12 of the judgment: "Para.

12. In this case it is also admitted by the prosecution and the defence that the dispute occurred over a plot of shamilat land. Yara, P. W. had deposed that he was duped in affixing his thumb impression on some blank paper and this blank paper was converted into a written statement and that fraudulently a decree was obtained against him by Allah Yar accused. The learned trial Court took the view that the file of the civil suit shows that Yara, P. W. (sic) and confessed judgment in his written state ment before the Court and that the decree against him was not obtained fraudulently and it was a consent decree. We further held that Allah Yar accused sold this property to Bhai Khan accused through a sale deed, Ex. P. O. and Bhai Khan accused thus stepped into the shoes of Yara P. W. We, therefore, held that Yara, P. W., is a non‑proprietor in the village. Therefore, he was competent to sell the site in dispute and that he could only dispute of the material of the house and that the site belongs to the proprietors of Patti Qaimana. He finally concluded that the accused who constructed the boundary wall in front of the house of Yara, P. W., were therefore not at all within their right in entering upon the physical possession of the shamllat land to the exclusion of other proprietors and those who took exception to the walls being built were justified in doing so. It is in the evidence of Ch. Abdur Rahman, Sub‑Inspector, P. W., that Karam Dad accused produced key P. 48 with which the door of the house of Yara, P. W., was opened while Yara, P. W. had also deposed that he left the possession of the house with Karam Dad accused. Karam Dad also admitted, when examined that he produced the key of this house to the police. He admitted further that he was in possession of this room since the grand‑mother of Yara, P. W., had given the possession of this room to him and that this area was part of Patti Qaimana of which he was also one of the proprietors. From this it can be spelled out that Bhai Khan accused was not in possession of the kotha at the material time. The circumstances under which Yara, P. W., confused the judgment also look suspicious. The civil suit was instituted on the 15th of July 1964 and Yara, P. W., defendant confessed judgment in favour of the plaintiff' on 23rd July 1964. There is nothing in this record to show that Muhammad Yar, P. W. actually appeared before the civil Court and confessed judgment in favour of Allah Yar accused. The assertion of Muhammad Yar, P. W. that his thumb‑impression was obtained on some blank paper and that paper was converted into a written statement in that case may be true. The question whether it was a consent decree or a decree obtained as a result of fraud has no bearing on the decision of this case, as it is a case of both the parties that the land in dispute where the walls were being constructed forms part of the shamilat land. Therefore, it is obvious that the accused were not justified in raising the four walls without the, permission of the other proprietors of Patti Qaimana. In the cir cumstances, the appellant could not claim the right of defence of property." In appraising the testimony of the eye‑witnesses the learned Judges conceded that the testimony of witnesses who are partisans or are inimical to the accused should be examined with care and the Court should guard against the possibility of the implication of innocent persons. Keeping this rule in view they proceeded to examine the testimony of the prosecution witnesses and placing it side by side with the defence evidence reached the conclusion that the eye‑witnesses did not lie on any material point and that their conduct after the incident was quite natural. It was observed: "In the light of the surrounding circumstances of the case even if it is said that the evidence is of partisan nature which we do not accept we find there is nothing inherently improbable to accept their presence". The reasons for which the trial Judge disbelieved Allah Bakhsh and Haji Muhammad Khan were replied by the learned Judges in the following view: "

18. The finding of the learned Sessions Judge that Allah Bakhsh and Haji Muhammad Khan, P. Ws. would have been done to death if they would have been seen by the accused, at first, appears to be automtive and convinc ing, but on examination we find it difficult to sustain this finding. In this case the parties 'did not come prepare to measure their strength against each other. It is a case where the complainants came empty handed and were shot at by the accused like ducks. Both Allah Bakhsh and Haji Muhammad, Khan, P. Ws., naturally would have tried to save themselves when the attack was opened by the opponents. These wit nesses were not expecting armed opposition and their presence was quite natural as they were opposed to the construction of the boundary wall on the shamilat land. It is quite possible in an attack where there is indiscriminate firing that several people may escape unhurt. Walli, P. W., also escaped with one pellet. It is difficult to accept as a general rule, that one who does not suffer injury in the course of such like incident, was not present at the spot. If Allah Bakhsh, P. W., would not have been present at the spot, it was not possible for him to give the detailed account of the gruesome drama in the first information report. It was suggested by the defence that Haji Muhammad Khan, P. W., on the day of the incident went to the police station to complain against the construction of the walls. This gives also an implied impression that he was very much interested in the affairs and his presence at the scene of crime would be natural. The statement, Exh. D. E., recorded by the Inspector of Police shows that Allah Bakhsh, P. W., claimed in his statement that he had seen the incident anal also collected the facts from the spot. Both these wit nesses are mentioned in the inquest reports. We are of the view that both these witnesses were present at the spot at the time of the incident." The evidence given by the three injured eye‑witnesses was sum moned up as follows: "Lala, Walli and Dost Muhammad, P. Ws., bore injuries on their persons and their presence at the spot cannot be disputed. The main argument against them is that they are the relations of Allah Bakhsh and Haji Muhammad Khan P. Ws, and are under the influence of Allah Bakhsh, P. W., and (sic) would tow his line. Allah Bakhsh, P. W., is the grandson of Langar Khan, Lala is the grandson of Zaida, father of Walli. P. W., was assaulted by Rahman son of Jalal, Dosa and Shera accused, maternal uncles of Allah Dad accused. If it was so the defence would have brought a copy of the first information report or copy of the judgment to establish this fact. No endeavour was made in this behalf. Dost Muhammad, P. W., in cross‑examination stated that he went to the place of occurrence as he was not afraid of the accused as he had no enmity with them. No direct enmity has been established against this witness. There appears to be no reason to disbelieve those witnesses. Their evidence also finds corroboration from the medical evidence." As seen in the first information report Allah Bakhsh had stated that the firing by the 13 accused took place from within the newly constructed compound walls of the house of Yara Machi. However, in the supplementary statement of Yara purported to have been recorded on the same evening it was said that the accused had fired from the roof of the house of Bhai Khan, etc. across the lane to the East of the house of Yara Machi. Dealing with this inconsistency the learned Judges observed:‑ "We found that the prosecution witnesses of the occurrence have deposed before the Committing Magistrate and at the trial that the firing took place from the ground and not from the kotha. There was no occasion to introduce this change in the version by the complainant the very first day of the incident, as it cannot be said that these witnesses wanted to reconcile the story to fit in the medical evidence, as the medical evidence was not available that day. Apart from this, the medical evidence does not warrant this change. It has come to in evidence that the accused wielded influence in the area. Allah Yar, Tehsildar, brother of Muhammad Yar, Pleader, was posted in those days at Jhang and that Mehr Allah Bakhsh, Inspector of Police, who investigated the case also hailed from Jhang. As such, as suggested by the complainant the possibi lity that the police officer might have introduced this version of his own to damage the prosecution case cannot be excluded. The eye‑witnesses from the very beginning insisted in their stand that the firing took place from the ground. They adhered to this position before the Committing Magistrate and at the trial. He also knew from experience that the police officers while recording the evidence usually do not read out the statements to the witnesses nor under tire Code of Criminal Procedure the witnesses are required to sign their statements. The claim of Allah Bakhsh, P. W., that he came to know about 2 and 2J months after the inspection of the case file that the venue had been shifted from the ground to the top of the house may be true. On the record there are also two applications, Exhs. P. W. 23/1 and P. W. 27/1, which do go to show that the complainant was not satisfied with the investigation' of the case. He was driven to make complaints to the higher police officers knowing full well that the police may destroy his case. If the evidence on the file show that the investigation was mala fide, and the police has not correctly recorded a statement under section 161, Cr. P. C., the Court may prefer to rely on testimony of a witness m Court on oath and a witness should not be considered unreliable on the point on which he is so contradicted. In the instance case, we chose to rely on the testimony of the witnesses made on oath in the Court." The suggestion made by defence that the incident occurred when the complainant party started demolishing the newly constructed compound walls of the house of Yara Machi was also considered as wholly untenable. It was remarked by the learned Judges: "The case which the accused sought to set up in cross- examination of this witness is of self‑defence, but there is no statement to this effect, yet we, have examined the allegations for the prosecution and those for the defence in juxtaposition against the proved facts to consider whether the case of the defence set up in cross‑examination, 'was reasonably possible one. Not a vestige of evidence was offered in support of this suggestion nor anything substantial was eluci dated in cross‑examination to support it. In support of this ocular evidence we are of the considered view that it was ridiculous to accept the story of assault as suggested by the defence." In the result the convictions and sentences of the nine condemned accused were confirmed, the State appeal against Bhai Khan, Umar Hayat, Khuda Bakhsh and Rafique, accused was allowed, but in view of the time which had elapsed since their acquittal by the trial Judge they were sentenced to transpor tation for life each. In support of Criminal Appeals Nos. 15 and 39 Chaudhri Nazir Ahmad Khan contended that: (i) the manner in which the occurrence was alleged by the prosecution witnesses to have taken place was inherently false; and (id) it was unsafe to accept the oral word of the eye‑witnesses who were admittedly inimical to the accused and the High Court did not give due weight to the reasons on which the acquittal of Bhai Khan, Umar Hayat and Khuda Bakhsh was based. In this connection the learned counsel maintained that as the trial Judge had the first hand opportunity to watch the demeanour of the prosecution witnesses his appraisal of evi dence should not have been lightly interfered by the High Court. Mr. A. R. Changez who appeared in support of Criminal Appeal No. 16 by Khuda Bakhsh and Rafique argued that his clients belonged to a different caste; resided at a different place and had no common motive to participate in the attack on the deceased persons and the injured prosecution witnesses. It was accordingly maintained that as the acquittal by the trial Judge was based on a view which on the materials brought on the record fully sustained the High Court was not justified in allowing the State appeal against the said accused. Our examination of the record does not disclose an inherent improbability in the prosecution version as claimed by Chaudhri Nazir Ahmad Khan. The learned counsel firstly urged that as fuel‑wood was stored in the kotha of Yara Machi it was not possible for the 13 accused persons to enter it together as stated by Allah Bakhsh, P. W. 27, and the other eye‑witnesses. He relied for this purpose on the evidence of Ch. Abdul Rehman, S. H .O., that he had found some fuel‑wood and miscellaneous articles in the kotha of Yara Machi which covered about 2/3rd of the space at a time. In cross‑examination the S. H. O., further conceded that in his inspection note it was stated that only one man could stand inside the kotha. There is only one inspec tion note on the record which does not contain any such recital. The admission made by Chaudhri Abdur Rehman, on which the contention raised by the learned counsel is based was thus factually incorrect. The learned counsel found it difficult to believe that after Bhai Khan was shot dead, the other members of his family arrived unarmed and beseeched the accused persons not to commit any more aggression. The contention raised was ruled out on the view that the rest of the deceased persons and the injured prosecution witnesses had come to the scene of firing without apprehending any danger to them and were shot down as soon as they arrived. There is no denying the fact that 8 persons were killed and three injured by the use of fire‑arms. The circumstances also do not disclose that any one of them was armed or that they threw brick‑bats on the accused persons. None of them was injured by a brick‑bat nor were any brick‑bats found near the place of occurrence. The conclusion that the deceased and the injured persons came to the house of Yara Machi unwarily was, in the circumstances, irresistible. Chaudhri Nazir Ahmad Khan next drew our attention to the supplementary statement of Allah Bakhsh, P. W. 27, purported to have been recorded by Chaudhri Abdur Rehman, S. H. O., on the evening of the 17th November 1964, to the effect that the firing had taken place from the roof of Bhai Khan, Rehman and Dossa accused, which lies to the east of the house of Yara Machi across the lane. Allah Bakhsh denied having made the supplementary statement and he was supported by the circumstance that if the firing had taken place from points Nos. 15 and 16 on the roof of the house of Bhai Khan, Rehman and Dossa shown in the site plan no pellet marks would have been found in the back wall of the kotha of Yara Machi at point No.

14. Further the newly constructed compound walls of the house of Yara Machi would have come between the victims and the assailants if the firing had taken place from points Nos. 15 and

16. It was also inexplicable that the supplementary statement of Allah Bakhsh, P. W. 27, should have totally belied the version given by him in the first information report, Exh. P. S. It was suggested on behalf of the complainant party that Chaudhri Abdur Rehman, S. H. O., had under the influence of Mehr Allah Bakhsh, Inspector Police, deliberately created contradictions in the prosecution case by fabricating the supplementary statement of Allah Bakhsh. Mehr Allah Bakhsh belongs to district Jhang, where a brother of Muhammad Yar, Pleader, since deceased, was posted in Jhang as Tahsildar at the relevant time. The learned Judges in the High Court agreed with this view and relied for this purpose on the applications Exhs. P. W. 23/1 and P. W. 27/1 made by Allah Bakhsh, P. W. 27, expressing dissatisfaction with the course of investigation conducted by Chaudhri Abdur Rehman, S. H. O. One of the grievance made by Allah Bakhsh was that although a large number of shots were fired no recovery of any fire‑arm was effected since Ch. Abdur Rehman, S. H. O. was not cross -examined by the prosecution on this point. Mehr Allah Bakhsh, Inspector Police, repudiated the suggestion that he had influenced the course of investigation under the influence of Muhammad Yar, Pleader, and took up the position that he came to know him only during the course of investigation in the case and was not even aware of the fact that his brother was posted as Tahsildar, at Jhang. Ch. Abdur Rehman, S. H. O., was not asked any question by the Public Prosecutor on this point. It was, therefore, not safe to express a positive opinion that the supplementary statement of Allah Bakhsh was fabricated, but as seen above the circumstances were conclusive of the fact that the firing had not taken place from the roof of the house of Bhai Khan, Rehman and Dossa, accused. As seen Allah Bakhsh denied having made the supplementary statement and it was enough to rule it out on this ground. Chaudhri Nazir Ahmad Khan lastly relied or, the findings by the Courts below that the evidence led by the prosecution in support of the charge of criminal conspiracy against Karam Dad and Muhammad Afzal, accused, was false. It was claimed that the prosecution witnesses were not worthy of credit inasmuch as Allah Bakhsh (informant), P. W. 27, who deposed in support of the criminal conspiracy was proved to be a liar. It was omitted from consideration by the learned Judges in the High Court as well as the trial Judge that in the first information report Allah Bakhsh did not charge Muhammad Yar, Pleader, Karam Dad and Muhammad Afzal with the offence of a criminal conspiracy. He did allege that the assault had taken place at the instance of Muhammad Yar, Pleader, who was an enemy of the complainant party and that Karam Dad and Muhammad Afzal, Lambardar, were his collaborators in instigating the accused persons to commit aggression against them, but this was merely the expression of an opinion on the part of Allah Bakhsh. He did not mention the names of the prosecution witnesses who during the trial deposed in support of the charge of criminal conspiracy or even allude to the nature of the information they had about the complicity of Muhammad Yar, Karam Dad and Muhammad Afzal in the assault by the remaining accused persons on the deceased and the injured prosecution witnesses. Allah Bakhsh, P. W., was therefore in no mannar belied by the finding by the Courts below that the evidence led in support of the charge under section 120‑B was false. As to the inimical character of the eye‑witnesses Allah Bakhsh, P. W. 27, admitted in cross‑examination that about six or seven years before the occurrence two of his cousins and the maternal uncles of one of them were prosecuted under section 307, P. P. C. for a murderous assault on Ghulam Muhammad alias Gulla, Bhai Khan and their father Jalal. 7 he accused were convicted and sentenced to imprisonment for three years each by the Magistrate, but on appeal their sentences were reduced to 11 years each. After serving their full term of imprisonment the accused had come back to Jhawarian two or three years before the present occurrence. The other item of enmity suggested in cross‑examination of Allah Bakhsh was that Mammon father of Rehman, accused, and Khuda Bakhsh, accused, were cited as prosecution witnesses in a criminal case against his brother Muhammad Yar, deceased, which was pending trial at the time of occurrence. Allah Bakhsh had no knowledge of the said persons were to appear for the prosecution in that case and no material was brought on the record to substantiate the suggestion. The rest of the cross‑examination of Allah Bakhsh was directed to the details of the party faction in Jhawarian between the complainant party and the party of Muhammad Yar, Pleader, which had no direct bearing on the relations inter se the accused and the primary witnesses in the case. Out of the remaining eye‑witnesses Haji Muhammad Khan, P. W. 28, conceded that about 15 years ago a quarrel had taken place between his son and some near relatives on one side and Rehman, accused, and his father Mammon on the other side over the turn of canal water. The incident was reported to the police" but no action was taken on it because the parties he elves had arrived at a compromise. No other enmity with any one of the accused persons was suggested to Haji Muhammad Khan or to any one of the three injured eye‑witnesses. On this analysis the plea that the oral word of the eye‑witnesses should not have been relied upon without confirmatory evidence does not hold good. The last ground raised by Chaudhri Nazir Ahmad Khan is likewise without substance. It is true that a Court of appeal should not lightly interfere with the appreciation of evidence by the trial Judge who is in the position to watch the demeanour of a witness which reflects on his credibility. However, if the B appreciation is not based exclusively on the materials placed before the trial Court, but on reasoning which is found to be faulty or on speculation and surmises then the Court of appeal would be justified in forming its own view of the evidence. In the instant case the trial Judge acquitted Bhai Khan, Umer Hayat, Khuda Bakhsh and Rafique, accused, by extending to them the benefit of doubt in the light of concessions made by Aurangzeb Khan, P. W. 4, Ghulam Abbas, P. W. 5, and the defence witnesses examined by Umer 1‑layat. The first witness was Aurangzeb Head Muharrir of the Police Station, Jhawarian, and was examined by the Public Prosecutor to depose about the safe custody of the parcels sent to him by the S. H. O., in the Malkhana, till 23rd November 1964, when he made them over to Ghulam Abbas Foot Constable for delivering them to their proper destination. In cross‑examination Aurangzeb (P. W.) deposed that on 17th November 1967, at about 10 or 11 a. m. Haji Muhammad Khan and one other person came to the Police Station and complained to him orally that Ghulam Muhammad alias Gulla, accused, and his brothers were construct ing a wall on shamilat land, whereupon he sent Ghulam Abbas Shah, P. W. 5, Foot Constable, to bring Gulla and others with him to the Police Station. An hour later Ghulam Abbas Shah came back and told him that Gulla and his brothers would be coming soon along with the documents of title relating to the place in dispute. Later on Gul Muhammad, Member, Union Council, Jhawarian, came there accompanied by two or three persons and offered to produce documents of title before him in connection with the disputed place. He was presenting those documents when some one in the deohri of the Police Station said that murders had taken place in Jhawarian town. As he did not know Khuda Bakhsh and Bhai Khan. Aurangzab was not in a position to repudiate the suggestion that they were the companions of Gul Muhammad. In reply to the Court question Aurangzeb admitted that he made no entry in the Register Roznamcha about the complaint of Haji Muhammad Khan nor did he mention in any one of the registers the visit of Gul Muhammad and his two companions. Ghulam Abbas Shah, P. W. 5, Foot Constable, also a formal witness in the case stated in cross‑examination that he was directed by Aurangzeb, Head Muharrir, to go to village Jhawarian and to bring with him the persons who were constructing the walls around the korha of Yara Machi. He accordingly went there and told Gulla to accompany him to the Police Station. The latter, however said that he would come soon and bring with him the documents of title of the land in dispute. Thereafter Ghulam Abbas Shah returned to the Police Station and went to the mosque to offer prayers. He did not see Gulla, Bhai Khan and Khuda Bakhsh coming to the Police Station after his visit to village Jhawarian. In reply to the Court question Ghulam Abbas admitted that he did not make any entry in the Daily Roznamcha at the time of his departure for village Jhawarian or about his return to the Police Station. The trial Court took the view that as Aurangzeb was not in a position to repudiate the suggestion that Khuda Bakhsh and Bhai Khan had accompanied Gut Muhammad to the Police Station, the possibility that they were present in the Police Station when the occurrence took place could not reasonably be ruled out. Gut Muhammad did not appear as a defence witness. In the absence of any evidence to that effect it could not be said that there was any material before the trial Judge to come to the conclusion that Bhai Khan and Khuda Bakhsh accompanied Gut Mohd to the Police Station when the firing took place. As seen Ghulam Abbas Shah did not support Aurangzeb on this point. The trial Judge also failed to notice that Khuda Bakhsh, accused, in his statement under section 342 of the Code of Criminal Procedure had given an entirely different account of his visit along with Gut Muhammad to the Police Station on the afternoon of the 17th November 1964. In reply to the question whether he wanted to add anything to his statement Khuda Bakhsh stated as follows :‑ "I had come to Sargodha one day preceding the day of occurrence. I went back to my village on 17th November 1964. When I got down from the bus at the bus‑stand Jhawarian and was about to start for my dera which is at a distance of about two miles from the bus‑stand I met Bhai Khan, accused, and Gut Muhammad, Member, Union Council, who asked me to accompany them to the Police Station because one Mst. Roshanai had made an application to the police against Gut Muhammad. I accompanied them to the Police Station. It was there that we learnt that the present occurrence had taken place. Haji Muhammad Khan, P. W. and Muhammad Khan, son of Langar were also present at the police station when we went there. I was a prosecution witness in a case under section 307, P. P. C. in which Gulla accused and some others had been injured. Muhammad Yar, deceased, of this case was prosecuted for theft. I was a prosecution witness in that case." The two versions one given by Aurangzeb and the other by Khuda Bakhsh were mutually contradicting. The learned Judge was in this view clearly in error in relying on the testimony of Aurangzeb and Ghulam Abbas in support of the alibi of Bhai Khan and Khuda Bakhsh. The evidence in support of alibi raised by Umer Hayat, accused, was equally untrustworthy. He is an army personnel and was on leave up to the 17th November 1964. On the 16th of November he sent a telegram to his Unit at Chanari that due to transport strike he was unable to join in time. On the morning of the 17th of November he called at the Post Office to inquire from the Post Master Mr. Nasir Ahmad, P. W. 12 if any reply to the telegram he had sent on the previous day was received. Umer Hayat joined his Unit at mid‑day on the 18th November 1964, but claimed to have reported at the Head Quarter of his Unit in Muzafarabad on the evening of the 17th November 1964, at 6 p. m. Naik Muhammad Yousuf, D. W. 2 and Havaldar Mohammad Rafi, D. W. 3, supported Umer Hayat, but it was significant that no record was produced by either to confirm the arrival of Umer Hayat at Muzaffarabad on the evening of the 17th. There was no reason to disbelieve the testimony of the Post Master that Umer Hayat had called on the morning of the 17th November at 8 a. m. The railway time‑table shows that after 8 a. m. the only train which could take Umer Hayat from Bhalwal to Rawalpindi left in the evening. The view expressed by the trial Judge that Umer Hayat could thus at the earliest reach Rawalpindi on the morning of the 18th and that appears to be true as according to Subedar Major Gut Muhammad, D. W. 4, reported himself on duty at Channari at 12 o'cloek on that day. The High Court was in view of these conclusive facts justified in disbelieving the alibi of Umer Hayat and allowing the State appeal against him. The case of Khuda Bakhsh and Rafique, accused, however, stood on a different footing. Their acquittal by the trial Judge was not entirely based on the plea of alibi, but also on the additional circumstances that they belonged to a different caste; resided in their dera at a distance of 11 miles from the place of occurrence; and had no common motive to join in the assault. Mr. A. R. Changez, accordingly, maintained that the acquittal of the said two accused was not liable to be set aside merely on a different view of the evidence taken by the learned Judges in the High Court. The argument raised by the learned counsel is not without substance. In the above view Criminal Appeal No. 16 by Khuda Bakhsh and Rafique, accused, is allowed and their respective convictions and sentences are set aside while Criminal Appeal No. 15 by Bhai Khan and Umer Hayat and Criminal Appeal No. 39 by Ghulam Muhammad alias Gulla and eight others are dismissed. No argument was addressed by Mr. Mahmud Ali Kasuri in support of Criminal Petition for Special Leave to Appeal No. 146 preferred by Allah Bakhsh, P. W. 27, to call in question the lesser penalty of transportation for life awarded by the High Court to Bhai Khan and, others on the State appeal. As seen the High Court did not impose the extreme penalty of death on these accused because considerable time had passed since they were acquitted by the trial Judge. We see no reason to differ with the view taken by the learned Judges in this behalf and dismiss the petition . . . . K. B. A. Appeal dismissed.