1972 PLP 672 (SCMR)

SAJJAD AHMAD, J.‑Faizullah Khan, the appellant herein, was acquitted by the Sessions Judge, Derajat, of the charge of having murdered his relation Muhammad Azim. On appeal by the State under section 417, Cr. P. C., a Division Bench of the former High Court of West Pakistan, Peshawar Bench, found him guilty and sentenced him to transportation for life. This appeal by Faizullah Khan is as of right, and there is a cross petition for leave to appeal (No. 21‑P of 1970) filed by Ghazi Marjan, a brother of the deceased, by which he has sought the enhancement of the appellant's sentence to death. This judgment will dispose of both the appeal and the leave petition mentioned above. The appellant's brother named Khan Zaman was also named as co accused in this case. He has absconded and is stated to be still at large. Muhammad Azim, deceased, and the appellant were related to each other. They were also co‑sharers in agricultural land along with P. W. Sher Jang and his son P. W. Mashal Khan, who were related to both the parties in varying degrees. Sher Jang's father is the real brother of the grand‑father of the appellant, and he is a uterine brother of the deceased. According to the prosecution case, the parties had collected in the chowk (Hujra) of P. W. Slier Jang for the distribution of the wheat which was harvested from their joint fields. The distribution was to be done by Muhammad Akbar, the village Imam, and two gunny bags were brought for this purpose from the house of the deceased to the hujra of Sher Jang. It appears that an altercation ensued between the dec6amd and Faizullah Khan and Khan Zaman on account of the possession and produce of some land, which, at one time, belonged to the father of the accused but had been purchased by one Gulla Khan when it was auctioned for the recovery of arrears of land revenue. The father of the appellant had transferred this land to the deceased who litigated with Gulla Khan and ultimately succeeded. Muhammad Azim alleged that he had spent Rs. 500 on litigation and was willing to return the land to Faizullah Khan and his brother on payment of the litigation expenses. At that time, the deceased was unarmed while the accused were each carrying a single barrel shot‑gun. The respective shares of the deceased and the accused had been put into two gunny bags separately and were brought out in the courtyard of the hujra of Sher Jang. Leaving his bag at the spot, the deceased went out of the kotha, followed by the appellant and his brother, Khan Zaman. They grappled with the deceased and then the appellant fired a shot, hitting the deceased on the face and back of the head. Khan Zaman also fired a shot at the deceased, hitting him on the face. The deceased suffered 18 fire‑arm entrance wounds and 13 exit wounds. Both the appellant and ‑his brother had absconded after the occurrence. The appellant was arrested on the 27th of August 1965, i.e. after about 15 months of the murder. Khan Zaman has not been traced. The occurrence was reported by P. W. Mashal Khan at 8‑40 a.m. within almost an hour of the occurrence at Police Post Chowk Kakki, which is at a distance of 2 miles from the scene of the crime. During investigation, the Police recovered one blood‑stained pellet, two card‑board discs, two wads and two bags of wheat, one full and the other half, from the spot. A nose ring, which P. W. Mst. Jan Bibi, the wife of the deceased, claimed to be hers, was also recovered from the spot. The ocular evidence in the case was supplied by P. W. Mashal Khan, his father, Sher Jang, and Mst. Jan Bibi, the widow of the deceased. The abscondence of the appellant and the recovery of the wheat bags as well as the nose ring of Mst. Jan Bibi from the spot, were relied upon by the prosecution in corroboration of the guilt of the appellant. The learned trial Judge rejected the ocular evidence because he considered it to be of an interested character, which required independent the corroboration. The testimony of Mit. Jan Bibi was rejected on the ground that her name did not appear in the F. I. R. However, a point which weighed with the trial Judge but was rejected by the High Court, is that she being a purdanashin lady, it was highly improbable that she would come out to the spot from her house although it was quite near. The evidence of Sher Jang was discounted on the ground of his admission that he had not seen Faizullah Khan or his brother Khan Zaman firing at the deceased but had only seen them running away after the report of the two fires. Mashal Khan, the main witness, was disbelieved because of the conflict of leis testimony with the medical evidence. He had stated that the shots were fired from a distance of 5 paces, whereas the presence of charring round the wounds of the deceased showed that the shots had be‑en fired from a distance of only a few feet, Another factor, which had influenced the decision of the learned trial Judge is that in the F. I. R., there was no mention of the fact that the deceased had been pushed into the house of Eid Muhammad by the two assailants, but which fact was later stated by the witnesses at the trial in order to explain the blood and the presence of the dead body of Azim in the courtyard of Eid Muhammad. Finally, the trial Judge has drawn an adverse inference against the prosecution for the non‑production of Muhammad Akbar, the Imam of the mosque, who had done the distribution of the wheat. The learned Judges in the High Court have reversed the decision of the trial Judge on the view that the reasons given by him for rejecting the ocular evidence were not at all satisfactory. Mashal Khan, Sher Jang and Mst. Jan Bibi were no doubt related to the deceased but they had no motive or enmity to falsely implicate the appellant on a capital charge. It was a daylight murder which took place outside the hujra of Sher Jang, where his presence as well as of his son P. W. Mashal Khan was quite natural. The origin of the quarrel, as stated by the prosecution, is supported by the recovery of the gunny bags from the spot. The recovery of the nose ring of Mst. Jan Bibi from the spot, which has not even been adverted to by the learned trial Judge does prove that Mst. Jan Bibi had come out of her house and seen the occurrence, as stated by her. She could not have possibly remained shut up in the house notwithstanding her being a purdanashin lady after hearing the report of gun‑fire from near her house. The evidence of persons who are related to the deceased cannot be rejected on the ground of relationship alone, and even where corroboration is to be looked for, it is not to be furnished by the production of corroborative evidence which by itself is sufficient to form the basis of conviction. The learned counsel for the appellant has argued that the acquittal as recorded by the trial Judge, should not have been disturbed by the High Court unless it was found that the view adopted by the learned Sessions Judge was perverse or foolish, and not merely because a different view of the evidence was responsible. Under section 417, Cr. P. C. where the State exercises its right of appeal against the order of acquittal, and the appeal is admitted for hearing, the entire case is re‑opened both on facts and law. No limitations are laid down in the Code of Criminal. Procedure on the appellate powers of the High Court against, the orders of acquittal, although as a matter of prudence and established practice now, the High Court will not interfere with an order of acquittal, if the evidence supports the view formed by the trial Court, although a contrary view may also be possible from that evidence. But, if the reasons given by the trial Judge in rejecting the prosecution evidence are of a speculative and artificial nature, or the findings recorded are based on no evidence or misinterpretation of evidence, thus resulting in miscarriage) of justice, it becomes necessary for the appellate Court to re‑examine the whole evidence and to draw its own conclusions there from. In the present case, we are in agreement with the learned Judges of the High Court that the evidence of the witnesses was rejected by the trial Judge on unsound reasoning, and due weight was not at all given by him to the corroborative evidence furnished by the prosecution. The long absconsion of 15 months of the appellant in this case, which was not explained by him at the commitment stage, and which he tried to explain unsatisfactorily at the trial by stating that he had gone to Sukkur for work for some contractor, has rightly been considered by the High Court as a valuable piece of corroborative evidence to support the ocular evidence in the case. Curiously, the learned trial Judge has not at all referred to it, presumably because he rejected the ocular evidence erroneously as wholly unbeliev able. The result is that we uphold the judgment of the High Court and dismiss this appeal. The petition for leave to appeal (No. 21‑P of 1970) is also dismissed, as the High Court has given very valid reasons for imposition of the lesser penalty, and there is no ground for our interference. Appeal dismissed.