P L D 2003 Supreme Court 368 (PLP)

4. Submissions of learned counsel who appeared for the appellant at the time of leave grant in the petition were that the trial Court accepted the evidence of Mst.Shazia Parveen injured against the appellant to the extent of causing injuries to her and committing the murder of Muhammad Amir but her statement in respect of the murders of Muhammad Aslam and Mst.Hajran Bibi was not believed and the appellant was acquitted from the charge of their murders, however, learned Division Bench of the High Court without seeking independent corroboration to the evidence of Mst.Shazia Perveen converted his acquittal into conviction in violation of principle laid down by this Court to Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11). His further contention was that the prosecution evidence was full of doubts and it was not known as to from which place the appellant/accused was arrested. after commission of the offence as the complainant deposed that he was arrested from the place of incidence whereas P.W. Ghulam Fareed, S.H.O was completely silent on the said point.

5. Admittedly Mst. Shazia Perveen is injured, natural eye‑witness being inmate of the house where the incident of murders had taken place. She has implicated the appellant as under:‑‑ "At about 12‑30 night I woke up on hearing some noise I saw in the light of electric bulb Shabbir Hussain accused, present in the Court standing on the side of Mst. Hajran having a Kassi in his hand. I tried to get up, upon which accused gave me a Kassi blow which I warded off at my hand but the same landed on my head. On my raising hue and cry my father got up when the accused repeated the blow of Kassi, which hit on my left shoulder. Shabbir Hussain accused inflicted Kassi blow on the person of my father (deceased) hitting on his head who after receiving the injury fell down on the ground. I ran outside the house and started raising hue and cry which attracted Manzoor, Nazar Muhammad and Muhammad Idrees and one Iqbal, our neighbourer who also witnessed the occurrence. The accused tried to decamp from the place of occurrence but was caught at the spot by the P.Ws. The accused also committed the murder of Muhammad Aslam, Mst.Hajran and that of my father and also gave injuries on my person with similar intention." In the cross‑examination she has stated:‑‑ "My cot was spread near the cots of my uncle Aslam and Mst. Hajran deceased. When the accused gave Kassi blow on the person of Mst.Hajran I was just close to her. As the accused gave first Kassi blow, I got up and raised hue and cry. Muhammad Aslam deceased was done to death prior to that. No noise was heard when Aslam deceased was inflicted the injuries by the, accused. Accused inflicted Kassi blows on the neck of the deceased. However, I cannot tell exact number of blows... Accused gave 2/3 blows on the person of Hajran and it is incorrect to suggest that Hajran got up on receiving first injury. I had seen the accused when he inflicted the third blow on the person of Hajran deceased It is incorrect to suggest that accused was apprehended from Lehranwala but he was actually apprehended at the place of occurrence." P.W.4 Manzoor Hussain in his testimony has deposed that on the hue and cry of injured Mst. Shazia Perveen he was attracted hence he alongwith Nazar Muhammad and Muhammad Idrees P. Ws. reached at the spot where Iqbal also came there. They reached in the courtyard of the house where on the light of electric bulb they saw Shabbir accused was giving Kassi blows on the person of Amir deceased near the stair case when the accused on seeing them decamped from the place of occurrence but was apprehended by them and they took accused to Muhammad Anwar Lumberdar of the village and kept him there. They also saw Mst.Hajran and Aslam having died on their respective cots. P.W.5 Nazar Muhammad in his testimony has deposited that at the hue and cry of Mst.Shazia Perveen he, Manzoor and Idrees went to the scene of occurrence where they saw Mst.Shazia Perveen standing in injured condition and after entering the house they saw in the light of electric bulb that accused was giving Kassi blow on Muhammad Amir who tried to decamp but was apprehended.

6. Prosecution evidence on record would show that F.I.R. was promptly lodged wherein name of the appellant/accused was stated who was also apprehended at the spot alongwith blood‑stained Kassi when the blood stained clothes of the appellant/accused were also secured from his person.

7. P.W. Mst. Shazia in her testimony has fully implicated the appellant for commission of murder of her father Muhammad Amir by deposing that the appellant gave Kassi blows to her on left shoulder and on the head of her father who fell down on the ground. So far Mst. Hajran, she deposed that she saw the appellant standing on her (Mst. Hajran) side. She did not state in examination‑in‑chief that she saw the appellant hitting Kassi blows upon Mst.Hajran and Muhammad Aslam. Further in the cross‑examination she did state that when. the appellant gave Kassi blow she was close to her (Mst.Hajran) and further that she got up on giving first blow to Mst.Hajran. She in the cross‑examination .stated that Muhammad Aslam deceased was done to death prior to that and no noise was heard when Muhammad Aslam deceased was inflicted injuries by the appellant/accused. She in the cross examination has further stated that the appellant/ accused gave 2/3 blows on the person of Mst.Hajran and that it was incorrect that Mst.Hajran got up on receiving first injury. She further stated in the cross‑examination that she saw the appellant when he inflicted third blow on the person of Mst.Hajran. P.W.4 Manzoor Hussain and Nazar Muhammad corroborated Mst.Shazia that they saw the appellant/accused giving Kassi blow to Muhammad Amir and further that Mst.Hajran and Muhammad Aslam were lying dead on their respective cots. The said P. Ws. did not depose having seen appellant inflicting Kassi blows upon Mst.Hairan and Muhammad Aslam. Mst.Shazia is not corroborated by P. W s: Manzoor Hussain and Nazar Muhammad on the point that appellant also inflicted Kassi blows on the person of Mst.Hatran and Muhammad Aslam. Mst.Shazia who being inmate of the house and injured witness is also corroborated by P.Ws. Manzoor Hussain and Nazar Muhammad on the points that the appellant was apprehended at the spot and was given in custody of Muhammad Anwar, Lumbardar where he was confined in a room where from on the arrival of S.H.O. Ghulam Farid appellant was arrested and further that blood‑stained Kassi which was left by the appellant on the place of occurrence was secured. There is no explanation from the appellant as to how he happened to be at the place of occurrence from where he was apprehended by the P. Ws. and thereafter was given in custody of Muhammad Anwar Lumbardar who handed over him to police when he was arrested by P. W.8 S. H. O. Ghulam Farid, therefore. there could sot be said to be any mistaken identity of the appellant so also doubt or suspicion about the place of arrest of the appellant. The ocular testimony of P.W. Mst.Shazia is corroborated by P.Ws. Manzoor Hussain and Nazar Muhammad to the extent of inflicting injuries upon her and of causing murder of Muhammad Amir which testimony is further corroborated by recovery of the blood‑stained Kassi, (ii) blood‑stained clothes from the person of the appellant which were found to be so by the chemical examiner as per his report, and (iii) apprehension of the appellant at the spot. The prosecution has brought confidence‑inspiring and unimpeachable evidence against the appellant so tar the murder of Muhammad Amir and of causing injuries to Mst. Shazia and is further strengthened and corroborated by medical evidence of P.W.9 Dr.Riaz Ahmad mentioning the nature and locate of injuries on her and on the person of deceased Muhammad Amir. The prosecution has proved its case beyond reasonable doubt against the appellant so that the murder of Muhammad Amir and causing of injuries to Mst.Shazia, therefore, to the said extent conviction and sentence maintained by the learned Division Bench of the High Court would require no interference by this Court, considering that the evidence on record has been appreciated in I the light of the law laid down by this Court.

8. So far the next contention that whether there existed sufficient evidence on record to connect the appellant with the commission of murders of Mst. Hajran and Muhammad Aslam when the trial Court held that there was no confidence‑inspiring sufficient evidence to hold him guilty of the murders of the said deceased persons and thereby acquitted whereas the learned Division Bench held him also guilty of the said murders and convicted and sentenced him to death on two counts. The learned counsel has placed reliance upon Ghulam Sikandar v. Mamaraz Khan and others (PLD 1985 SC 11) where this Court observed: "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 from 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 initial, that, till found guilty, the accused is innocent: and two that again after the trial a Court below confirmed the assumption of innocence. The acquittal 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) misread such evidence and (c) received such evidence illegally. 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 view expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason. 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 the 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 conclusive and irresistible conclusion: and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized 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."

9. In view of the principles laid down by this Court in the above cited case it would have to be seen whether in the instant case interference by learned Division Bench with the finding of acquittal of the Court acquitting the appellant was justifiable and whether the trial Court disregarded the material evidence. (ii) whether there was misreading of such evidence on the part of trial Court and (iii) whether the trial Court received such evidence illegally with a view to avoid grave miscarriage of justice. The learned Division Bench held the appellant to be guilty of the murder of Muhammad Amir and of causing injuries to Mst.Shazia Parveen and also of two murders of Muhammad Aslam and Mst.Hajran in para. 7 of its judgment in the following terms:‑‑. "

7. The learned trial Court on surmises and conjectures acquitted the appellant for the murder of Muhammad Aslam and Mst.Hajran but convicted the appellant for the murder of Muhammad Amir. All the murders were committed in one Ahata, no other accused conjointly assembled at the place of occurrence to facilitate the appellant for commission of the murders. He was a single accused. Mst.Shazia injured witness in her cross‑examination stated as under:‑‑ 'I had seen the accused when he inflicted the third blow on the person of Hajran deceased. Mst.Hajran did not raise any hue and cry during the occurrence.' The evidence of this injured eye‑witness clearly indicates that she saw all the murders committed in her view. Resultantly Criminal Appeal No.28 of 1996/BWP succeeds, the appellant is convicted for the murders of Muhammad Aslam and Mst.Hajran and sentenced him to death on two counts. He shall also pay compensation of Rs.50.000 to be shared jointly with the heirs of deceased Mst. Hajran and Muhammad Aslam. On his failure to pay compensation he shall suffer S. I. for six months."

10. The learned trial Court in its judgment in para. 21 at page 13 observed:‑‑ "Although Mst.Hajran Bibi and Muhammad Aslam were found dead lying on their respective cots during the occurrence but yet one cannot say with clear conscience that the accused had committed their murders, because this portion of the case lacks direct evidence. I also cannot connect the accused with the commission of their murders on the assumption that it was the accused who had committed their murders because he was seen standing towards the cot of Mst.Hajran Bibi deceased and thereafter he was arrested at the spot and the weapon of offence was also recovered from near their dead bodies. In such‑like cases at least there should be direct evidence to the effect that any P.W. had seen the accused while committing the actual act. Here I quite agree with the learned defence counsel that there is no direct evidence available on the file to connect the accused with the commission of the murders of Mst. Hairan Bibi and Muhammad Aslam deceased." In para. 24 at page 16 the trial Court observed:‑‑ "However, I feel that the prosecution has not been able to prove clearly and fairly the commission of murders of Mst.Hajran Bibi and Muhammad Aslam deceased at the hands of the accused. I, therefore, while extending benefit of doubt, acquit the accused from the charge of the murders of Mst.Hajran Bibi and Muhammad. Aslam deceased."

11. From the above observations made by the learned Division Bench and that of the learned trial Court it would appear that the trial Court had considered all the material evidence on record in proper prospective according to law laid down by this Court but the only point for consideration was whether the learned Division Bench could have interfered with acquittal of the appellant merely because on re‑appraisal of evidence it came to the conclusion different from that of Court acquitting the appellant only because P.W. Mst.Shazia an injured eye‑witness without any independent corroboration deposed that the appellant was found standing over Mst.Hajran when she had not seen appellant inflicting Kassi blow upon Muhammad Aslam when in the case of deceased Mst.Hajran, in the cross‑examination stated that she had seen when appellant inflicted third blow upon her. It is true that Met.Hajran and Muhammad Aslam were also found lying murdered on their respective cots but it could be possible there might nave been other assailants at the place of occurrence who might have murdered Mst. Hajran and Muhammad Aslam who could have succeeded in running away. We regret to concur with the finding of the learned Judges of the Division Bench of the High Court in holding the appellant also guilty of commission of murders of Mst.Hajran and Muhammad Aslam considering that the trial Court did not disregard the material evidence on record and that there was no misreading and further that there was no illegality in considering and appreciating the evidence on record. Mere fact that the appellant was apprehended at the spot with Kassi which was blood‑stained so also with his blood‑stained clothes would not lead to presumption in law that he was the only accused who had also caused murders of said deceased persons in addition to that of Muhammad Amir. The finding of the trial Court in acquitting the appellant for the murders of Mst.Hajran and Muhammad Aslam could not have been interfered with considering said finding could not be brushed aside lightly on mere assumption and presumption. It is true that High Court has full power. to review the evidence upon which an order of an acquittal is founded, yet, the presumption of innocence of the accused being reinforced by his acquittal by the trial Court, the findings of that Court which had the advantage of seeing the witnesses and hearing their evidence not be reversed only for very substantial and compelling reasons. We have not been able to find that any compelling or substantial reasons existed for reversing the acquittal order in view of principles laid down by this Court for safe administration of criminal justice.

12. The rule of 'res gestae' in terms of provisions of Article 19 of Qanun‑e‑Shahadat is not attracted in the instant case as P.W. Mst. Shazia has not deposed having told to P.Ws. Manzoor Hussain and Nazar Muhammad immediately after the occurrence that she saw the appellant also murdering the deceased Mst. Hajran and Muhammad Aslam, so also said P.Ws. have not G deposed that they were so told by P.W. Mst.Shazia. In order to attract the application of Article 19 of Qanun‑e‑Shahadat it is important to bear in mind that the facts, which are connected with the fact in issue as "part of the transaction" under investigation,. are admissible as relevant fact. In order to apply the said rule the point for decision will always be whether the said facts do form part or are too remote to be considered really part of the transaction before the Court. The Illustration (a) of Article 19 of Qanun‑e Shahadat will always be guide to decide whether what was said or done by the bystanders before or after the incident was within so short a time as to form part of same transaction. Expressions, utterances and outcry of the persons standing there have been admitted or considered to be relevant when immediate, for they then form part of the 'res gestae' or main fact in issue. Further when the said utterances, expressions and outcry are made after the accused had fled to the bystanders or the persons who happened to be there. Court would exclude them as being hearsay or res inter alios, The H statements, utterances and declarations in order to be admissible/relevant as res gestae should be contemporaneous with the occurrence/ incident in issue i.e. interval should not be such as to give time or opportunity for fabrication and they should not amount to be mere narrative or past occurrence. Declarations, statements, utterances which do not satisfy the above said test I are rejected as hearsay. There is no evidence on record that P.W. Mst.Shazia and injured eye‑witness immediately after actual occurrence made a statement simultaneously with regard to the incident implicating the appellant for having given Kassi blows to deceased Mst.Hajran and Muhammad Aslam, she being under stress and excitement caused by having seen the incident would state the truth. In fact in the instant case, F.I.R. was lodged by P.W.4 Manzoor Hussain who has not stated therein that Mst.Shazia soon on their arrival declared/stated/uttered that appellant had inflicted also Kassi blows upon deceased Mst.Hajran and Muhammad Aslam. It would be observed that Mst.Shazia even in her deposition in the Court in her examination‑in‑chief did not state that she saw the appellant inflicting Kassi blows upon Mst.Hajran and Muhammad Aslam. P.Ws. Manzoor Hussain Nazar Muhammad and Muhammad Iqbal when arrived saw only appellant inflicting Kassi blow upon Muhammad Amir and only heard Mst.Shazia saying 'Mar Dya, Mar Dya'. Accordingly there cannot be said to be any declaration or utterance connecting the appellant with the main fact of commission of murders of deceased Mst.Hajran and Muhammad Aslam in the cross. The fact that deceased Mst.Hajran and Muhammad Aslam were found lying dead would not constitute a statement/declaration to form part of 'res gestae'. There was no immediate statement of Mst.Shazia implicating the appellant for commission of murders of Mst. Hajran and Muhammad Aslam. It may be observed that prosecution has also not brought any evidence through P.W.8 Ghulam Farid, Inspector/S.H.O. who investigated the case that while recording the statement of P.Ws. under section 161, Cr.P.C. any of the witnesses including Mst.Shazia stated before him that she had soon after incident made a declaration or statement that appellant during the course of incident inflicted Kassi blows upon deceased Mst.Hajran and Muhammad Aslam, therefore, other pieces of evidence viz. (i) apprehension of appellant, (ii) recovery of blood‑stained Kassi and (iii) blood‑stained clothes and other ocular testimony on record connecting the appellant with commission of K murder of Muhammad Amir cannot be treated relevant facts as 'res gestae' to main issue with regard to the murders of Mst.Hajran and Muhammad Aslam for connecting the appellant with said murders as well.

13. In view of above discussion, reasoning and the law laid down by this Court, the finding of learned Division Bench of the High Court holding the appellant to be also guilty of the murders of Mst. Hajran and Muhammad Aslam is reversed maintaining the only finding of the appellant guilty of the L murder of Muhammad Amir and of causing injuries to Mst. Shazia Perveen thereby the appeal is dismissed restoring the conviction and sentence passed by the learned trial Court. We also find no mitigating circumstance in the instant case warranting reduction in the sentence. N.H.Q./S‑270/S Order accordingly.