P L D 1964 Supreme Court 26 (PLP)

CORNELIUS, C. J.‑This is the appeal of one Siraj Din brought by special leave to reconsider a judgment of the High Court acquitting the respondent Kala of the charge of murdering Abdur Rashid, alias Sheeda, who was a son of the appellant. The case presents certain unusual features, which have been placed before us with care by learned counsel for the appellant as well as the respondent. An Additional Advocate‑General appearing for the State has supported the appeal. Sheeda was murdered on the evening of the 19th January 1961, in a street in Lahore city known as Moti Bazar of which the width is given as 14 feet, and it is also in evidence that there are double storeyed houses lining the street on both sides. On the 19th January 1961, sunset was at 5‑25 p.m. There is no indication that there was any artificial light at the time. No mention is made of any street lights nor of any lamps being lighted in any of the shops on either side of the street. It was urged by the accused that at the particular timed electric power had failed in that area of the city. He had sought to produce evidence of this, but there was delay in summoning the witness who was to speak on the matter, and on the last day of the trial it was represented on behalf of this witness that he could not appear without the permission of his superior officers. It seems that such permission might have been obtained without great delay, and the accused had asked that the Court should wait until the witness could appear, but the request was refused on the ground that "according to the prosecution evidence the incident has taken place at about the time of sunset and the P. Ws. do not claim to have identified the culprit in the electric light". The question of visibility is of some importance, for twilight is short in the depth of the winter and the existence of high buildings on both sides of a narrow street is apt to bring on darkness towards the evening very quickly. Two witnesses, namely the complainant Siraj Din, P. W. 11 and Gulzar Hasan, P. W. 12, say the incident occurred at 5‑30 p.m., adding that the sun was "about to set" while three others, namely, Muhammad Aslam, P. W. 13 Muhammad Siddiq, P. W. 14 and Ashiq, P. W. 15, say, it was "about 5‑30 or 5‑45 p.m." The report was made by Siraj Din at Police Post Masti Gate only a furlong away from the spot at 6‑30 p.m. Head Constable Miraj Din, P. W. 16, who recorded it stated that Siraj Din reached the Police Post at five minutes after 6 p.m. At that time, of course, it must have been completely dark. Sheeda died as a result of at least 18 and possibly more blows of a knife. On his face and head there were 5 wounds of which one was a multiple wound, there being several cuts, the longest being 6" in length, deep to the bone and the shortest an inch in length skin deep. There was a cut 5" in length in front of the neck under which all the blood vessels etc. had been cut. There was a stab wound on the left side of the chest, two stab wounds on the left side of the abdomen, another stab wound on the right side of the abdomen, and an incised wound also in that region. There were three incised wounds on the back and another on the back of the right shoulder. There was a cut on the left forearm and another on the right thigh. Looking at the injuries, the impression gained is that if the victim was in an open place and enjoyed freedom of movement, then this number of injuries could not have been caused to him unless he was either surrounded by several assailants, or was cornered by a single assailant so that he was unable to move. The evidence is that Sheeda was a pehlawan. He was no stranger to the Criminal Courts, for some four years earlier, he had been tried for the murder of one Totli (whose relatives live in the vicinity of the scene of this murder) but was acquitted at Sessions. He and his brother had been arrested under the Safety Act some time in 1958. Clearly, he was not a person to be easily disabled by a single assailant. And it would be an altogether extraordinary assailant who could manage, in daylight, within a few feet of a row of open shops in a narrow bazar, where people were going about, to give an able‑bodied pehlawan 18 or 20 blows with a knife, to cut his throat, and drag his body an appre ciable distance. Kala is alleged to have done all this in full view of the people in the bazar ; it has to be said, however, that on the prosecution version, not a sound was raised, nor did any one move a finger in the bazar to interrupt or interfere with the execution of this crime. In this context, an admission made by Siraj Din at the close of his cross‑examination may be thought to have special relevance. He said :‑ "Moti Bazar is a congested area and there are large number of inhabited shops and houses. Owing to terror, however, there is not much of traffic in the evening." There was here a half‑admission that traffic had almost ceased at the time of the occurrence. The point was noted, and a con clusion drawn therefrom, by the learned Judges in the High Court. The story told to the Police by Siraj Din was as follows:- He gave the time of the occurrence as 5‑45 p.m. which is somewhat later than that he gave at the trial. He said he and his son were proceeding from Chauk Surjan Singh where he has a fruit shop towards his house in Kucha Kundigaran which is at a short distance from the scene of the occurrence, when at the corner his son Sheeda left him saying he would get some cigarettes from Moti Bazar. Siraj Din waited for him at the corner, although his house was only a few paces away. Before his eyes, the accused Kala "who was already present in front of the shop of Bashir Ahmad, green‑grocer" took out a dagger from his dub and plunged it into Sheeda's right hip and thereafter gave him some more blows also on the back. Sheeda fell down and the accused "then applied the same dagger on his neck" and after giving him further injuries on his face and in the belly, he seized the body by one of the legs and dragged it into the chauk of Moti Bazar saying in a loud voice that he had avenged the murder of his brother. This brother was one Maja and in his initial report, Siraj Din said that some 8 years earlier his son Labha and others as well as Sheeda had murdered the aforesaid Maja in this very bazar. (It appears that the mention of Sheeda in connection with the murder of Maja was erroneous). Later Labha was sentenced to transportation for life, but in appeal the imprisonment was reduced to three years. Siraj Din said that as he was empty handed he stayed away, but raised a hue and cry. He mentioned only two persons as eye‑witnesses namely, Gulzar Hasan and Ghulam Mohyuddin whom he described as chance passers‑by. In the report full particulars of each of these two men were included. The learned Judges in the High Court examined the circum stances in which the names of Gulzar Hasan and Ghulam Mohyuddin were mentioned as eye‑witnesses with particular care. They pointed out that Ghulam Mohyuddin was not examined as a witness. It was said that he could not be found. They pointed out that Siraj Din had said in his evidence that he did not know Gulzar Hasan and Ghulam Mohyuddin previously, and that he had only enquired their names before leaving for the Police Post and also had requested them to stay with the dead body. This seems natural enough, and Siraj Din was perfectly clear that he had not asked Gulzar Hasan and Ghulam Mohyuddin to give him particulars of their parentage, caste and residence before he left for the Police Post. The learned Judges drew two conclusions from these circum. stances. The first is that mention of two passers‑by as the only witnesses of the occurrence "undoubtedly indicates that there was no one in the shops". From the fact that in the first information report, full particulars concerning Ghulzar Hasan are contained, they drew as "legitimate inference" the conclusion "that the names of both of them in the first report were recorded afterwards". In other words, the first information report was not recorded at the Masti Gate Police Post, but in fact the Police officer came to the spot and there recorded the report, entering in it particulars of Gulzar Hasan and Ghulam Mohyuddin which he obtained from these two persons themselves. The conclusion that there was no one in the shops might well be thought to receive powerful confirmation from the other conclusion, inasmuch as if the Police officer being on the spot had seen that the shops on the two sides were open and shopkeepers were present there, it would have been natural for him to have made enquiries and ascertained whether any of them was a witness, and in those circumstances, it would have been expected that the names of such persons as were able to give evidence would have been included in the first information report. When there is deviation from fact, in recording the place of the making of such reports, one does not look for scrupulosity in regard to any other details. The case developed at the trial by the evidence of the witnesses already named, including the complainant Siraj Din, is so different from that set out in the initial report that a grave doubt arises whether Siraj Din at all saw the incident, and if that be so; it must have an effect upon the question whether any one at all saw the incident. For, there are strong indications that the Police Officer recorded the first information report on the spot. If so, he would not have hesitated to verify the details from persons present in the bazar, before he drew up the report, and the fact that the names of three eye‑witnesses, each of them known to the complainant, and one of whom was actually talking to Sheeda when he was assaulted, do not appear in the report, therefore becomes significant. Two of these are shop keepers, in front of whose shops, the attack was commenced. The third is a resident of the vicinity, who was out for a natural purpose. Why these names were not mentioned ,,"in the initial report, and instead were mentioned two casual passers‑by, is a point requiring explanation. The story told by Siraj Din at the trial was this. After leaving him at the corner, Sheeda walked up to the shop of Bashir Ahmad, where Muhammad Aslam, P. W. was standing and Aslam and Sheeda greeted each other. (Other witnesses say they shook hands with each other) Kala was then standing in the bazar near Bashir's shop, and coming from behind Sheeda, he struck him a blow on his right flank followed by another blow in the same region, whereupon Sheeda fell down, and imme diately Kala "gave a blow on the neck of Sheeda like slaughtering an animal", and followed with further blows on his chest and face, and then shouting that he had avenged the murder of his brother, he dragged Sheeda to a place 6 or 7 paces away, which Siraj Din identified as the very spot on which Kala's brother Maja had been killed. At the trial, Siraj Din said he saw Ashiq, P. W., present at Bashir's shop and Siddiq, P. W., in the adjacent shop. Siraj Din admitted that in the initial report he never said that his son had come to his shop that day to see his mother and sisters, or that he had been at his shop since 4 p.m. If this be not true, then Siraj Din need not have been in Sheeda's company at the time of the murder. He admitted also that he knew Aslam who resides in the same Mohallah, and acknowledged that he had not mentioned Aslam's presence on the spot in the initial report. He acknowledged also that he had not mentioned either Siddiq or Ashiq in the initial report giving a half‑excuse, namely, that he knew them by their faces, but not by their names, and as to this the learned Judges in the High Court have pointed out that both Siddiq and Ashiq have stated that Siraj Din knew their names. Taking all these matters into account as well as the circum stances that Siraj Din had no reason to delay his arrival home merely because his son had gone to buy cigarettes, and that his conduct in standing at the corner and watching his son being slaughtered without doing anything to help him was unnatural, the learned Judges in the High Court came to the conclusion that "Siraj Din appears to have come to know about the incident soon after it had occurred, but had not witnessed it himself." They went on to observe that "Siraj Din's evidence alone cannot be relied (upon) for basing the conviction of the appellant on it". The reason for this observation is that the Judge in the trial Court had observed that although Siraj Din admitted that Sheeda had other enemies and was once involved in a murder case, yet "there is no ground whatever for believing that Siraj Din had falsely substituted the present accused for the real culprit". He went on to observe that "indeed substitution is rare and when only one culprit is named then he can be convicted on the testimony of an enemy witness, if it is established that the witness had really seen the incident". Proceeding then to say that Siraj Din's shop and house are close to the spot, and he can be relied upon as a natural witness, the trial Judge expressed the opinion "that Siraj Din's statement alone was sufficient evidence for convicting the accused'". The learned Judges of the High Court were at pains to point out that Siraj Din's evidence was affected by numerous doubts, and they went to the length of saying that they did not regard him as a witness of the occurrence at all. They thought he leant of the occurrence and went to the spot soon after. This being an appeal against an acquittal in which by the practice in this Court, a full examination of the evidence is allowed, it is necessary that I should state my views regarding the evidence of Siraj Din, when taken in conjunction with the other evidence and circumstances of the case, and bearing in mind the views formed thereon by the Courts below. The first information report is undoubtedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the Police. It may not be evidence by itself, but it certainly furnishes a clue to the possible truth of the allegations against the accused. When it is made by an alleged eye‑witness, its truth or falsehood falls to be judged in relation to the facts and circumstances established by the evidence in the case. Instances are not unknown where the prosecuting Police have found the first information report to be totally false, and in such a case it is their practise, as well as their duty, to show how and why they came to that conclusion, and it is necessary also that in presenting their own case, they should disown that which is set up in the first information report. Here, it is true that as in the first information report, so in the rest of the evidence, it is only one man who is alleged to have committed the crime and the scene of the crime is also the same. But the question remains whether Siraj Din was in fact an eye‑witness, and there are ample circumstances which serve to confirm the view of Siraj Din's evidence taken in the High Court. Two main grounds are the following, namely, if he were an eye witness why did he not mention the name of the witness Aslam, or that Sheeda was shaking hands with Aslant, when he was treacherously attacked, and secondly, if the shops were open and shopkeepers were present why did he not mention the name of the shopkeepers in front of whose shops the crime was committed. Why did he have to name two alleged passers‑by and how does it happen that full particulars of these passers‑by which were unknown to Siraj Din appear in the first infor mation report ? The scene of the crime was easily capable of location, for a great deal of blood flowed, somewhere the body was found and some where the injuries were first caused. The investigating officer, in cross‑examination, said he saw a trail of blood between these spots. He did not speak of any signs of dragging of the body from one spot to the other. The trail of blood may as well have been left if the victim ran from one spot to the other. This leads to another factor of doubt to which reference has already been made, namely, since the case is that Sheeda was standing in the open and his movements were unobstructed, how was it possible that a single assailant with a weapon like a knife, giving him a reach of no more than 3 feet with extended arm, could inflict so many injuries on so many different parts of the victim's body? Did he not try to move at all and if he moved, how was it possible for the assailant to strike so many blows? The really fatal injury was the one in the neck and that gives the impression that the victim was finished off at leisure, by a person or persons who had no apprehension of being interfered with, such as would arise if within a few feet there were observers all round. Finally, as to the time of the occurrence, the learned Judges in the High Court have thought that the shops were closed, when the incident occurred, and that might be any time after say 6.30 p.m. or 7 p.m. A point which does not appear to have been noticed in the judgments of the Courts below is a statement by the doctor who performed the post‑mortem examination that the deceased ate his last meal some 2 or 3 hours before his death. About 4 ounces of semi -digested food consisting of rice etc. were found in the stomach. If the death be placed at 5‑45 p.m. then the last meal might on the doctor's evidence be placed at either 2‑45 or 3‑45 p.m. and that is no time for the taking of a meal, according to the habits of the people. On the other hand, assuming that the meal was eaten at or about sunset which is much nearer the usual time, then the crime may be thought to have been committed at 8 or 9 p.m. and this would be more consistent with the bazar being deserted and also with the assailant or assailants being able to deal with their victim as they pleased. Against this, of course, may be set the fact that all the witnesses placed the occurrence at 5‑45 p.m. but the evidence of each one is subject to a serious discount. There is doubt whether Siraj Din is an eye‑witness at all. Gulzar Hasan is a chance witness, whose mention in the first information report is, from the start tinged with doubt, as is that of the second witness Ghulam Mohyuddin, who was never produced, and also was a mere passer‑by. The three remaining witnesses are persons whose presence on the spot is rendered subject to doubt by their non mention in the report although they should certainly have been mentioned, if they were there. The prosecution have allowed the evidence of Siraj Din to go on the record as a genuine eye‑witness, and have not disowned him in that capacity, although he furnished no explanation whatsoever for his failure to mention a considerable number of facts which the remaining evidence was produced to establish, and which if he was present he could not have failed to observe. In my opinion that constitutes a weakness in the prosecution case to which full weight must be given in the application of the rule of reasonable doubt. It must necessarily affect the appre ciation of the evidence of the remaining witnesses. As to Gulzar Hasan, the trial Judge merely said that he could not reject his testimony on the sole ground that he was not a resident of that area and did not know the accused previously, because firstly he was named in the initial report, and secondly, he had no interest to give false evidence against the accused. In the light of what has already been said that is plainly a superficial estimate of the value of Gulzar Hasan's evidence. In the High Court judgment, it is pointed out that Gulzar Hasan's excuse for being on the spot was thin. His house is a mile away and he had finished his work for the day and said he was going to visit the mazar of a Pir in Begum Shahi Mosque which is in the vicinity of the spot. He was unable to give the name of the Pir whose shrine he intended to visit. As Gulzar Hasan was not acquainted with the accused, in view of the light being at least dim, since it was after sun‑set in a narrow street bounded by high walls on both sides, it was necessary that he should be put to an identification test and this was not done. As to the remaining three eye‑witnesses, the trial Judge felt that he could not disregard their evidence merely because they were not mentioned in the initial report, since he thought that Siraj Din had been so quick to report. the occurrence to the Police that he "did not make any effort on the spot to ascertain the names of all the persons who had seen the incident". It is not even mentioned in the report that there were any persons round about the spot except the chance witnesses, Gulzar Hasan and Ghulam Mohyuddin, so that the explanation offered by the trial Judge is hardly adequate. He thought that it was the duty of the investigating Police to examine the shop‑keepers and this duty had been performed. He regarded Ashiq and Siddiq as "the most natural witnesses" because the incident occurred in front of their shops. Aslam too was thought to be a natural witness because being a resident of the neighbourhood, it was natural for him to go to Bashir's shop to buy vegetables. The learned Judges in the High Court took the contrary view basing on the absence of these three names in the first information report, and pointing out that admittedly Siraj Din knew Mvhammad Aslam and despite Siraj Din's denial, both Siddiq and Ashiq had said that he knew them both by name as well as by face. Muhammad Aslam's evidence was that when the attack took place he at once ran away to his house out of fear, and was later called to the spot by a constable at about 10 p.m. It was suggested to him that being a Mohalladar of Siraj Din he was giving false evidence in support of the latter. Muhammad Siddiq a man of 35 supported the prosecution story by saving that Aslam was at his shop to buy vegetables and the attack on Sheeda was made when he was greeting Aslam in front of Bashir's adjoining shop. He said nothing about having run away from the spot. He said that a number of other shop‑keepers were present at their shops, and named two of them, whose shops were open, namely, Hakim Nazir Husain and Haji Karim Bakhsh. It was suggested to him and he denied that he was deposing in favour of Siraj Din in return for having been entertained by him at Murree for the past month. Neither Siddiq nor the investigating officer, Mr. Abdur Razzak Khan, P. W. 17, stated at what time Siddiq appeared before the Police. Aslam and Ashiq were summoned by a constable and reached the spot at about 10 p.m. according to the Thanedar. Ashiq supported the case for the prosecution and said that he ran to the house of his master Bashir out of fear. Bashir's mother sent him back with another boy to close the shop, and when he got back, the Police were already there. This conflicts with the allegation that be was brought to the spot by a constable. Since all the witnesses say that after finishing with Sheeda, the accused ran away, it is difficult to understand why any of those present on the spot should have got frightened and wanted to run away, when the solitary assailant had disappeared, and with the Thana only a furlong away, it could be only a few minutes before the Police would arrive at the spot. It might have been otherwise if the crime had been committed by a gang of criminals. If there had been no doubt whatsoever that this crime was committed in Moti Bazar at a time when the shops were in fact open, there might conceivably have been less ground for caution in receiving the evidence of witnesses such as Siddiq and Ashiq, beat as has been seen, there are several circumstances of considerable significance, which would tend to show that the murder may well have been committed at a considerably later hour when the Bazar was deserted. It being the depth of winter, one may imagine that by g p.m. all shops may well have been closed. The absence of artificial light is admitted, and the doubt indicated above would exclude also the possibility of natural light. The mere fact that from the front of Bashir's shop, the Police picked up some potatoes and some spinach bearing stains of blood, is in my opinion, not sufficient for holding that the shop was in fact open. It may be that such articles may have been left carelessly lying in the open after the shop was closed, and indeed if there be a doubt of a substantial nature whether the time of the occurrence has not been brought forward to a period of good visibility in order to give strength to the case, the production of a few such articles from a neighbouring shop showing stains of blood when so much blood was available would clearly offer no difficulty. The central factor of doubt in the case is provided by the initial report, which clearly gives the impression that the crime was committed in a deserted bazar, where besides the principals, only two chance passers‑by were present. Without offering any explanation for the averments and omissions which give rise to this impression, the prosecution evidence presents a totally different picture of a populated bazar, introducing three persons as witnesses, who would naturally be there, if the time of the occurrence were correctly given. But there being good reason to think that the initial report was written at the spot, where the Police arrived very quickly, if these three witnesses did indeed see the incident, the natural thing to expect would be that their names would be mentioned in that report, for they were all known to Siraj Din. It has to be borne in mind that the production of false witnesses is no more difficult in a city than it is in the villages. Indeed, in a recent murder case from this very area in Lahore City, namely Police Post Masti Gate and at about the same time this Court, in a published judgment viz., Sikandar Ali v. The State (P L D 1963 S C 17) found it necessary to reject the evidence of a witness (that of the other eye‑witnesses having been disbelieved by the Courts below) by reason of patent doubt as to the time when he first appeared before the Police. The presence of Sheeda's body on the very spot where Kala's brother was murdered by Sheeda's brother some years before was itself a clue to the motive behind the murder of Sheeda, and therefore furnished an indication as to who the murderer or murderers might be. But, in the absence of good evidence to identify the culprit, this clue could create no more than suspicion, for this circumstance might have been created by the murderer or murderers to put the investigation on a false scent. The prosecution relied on the following circumstances to identify Kala as the culprit, namely, (a) Kala's absence from his house for a number of days following, the occurrence, (b) the recovery at his instance on the 26th January of a dagger buried in the ground under a culvert which was proved to still bear human blood seven days after the occurrence and (c) the presence of several small cuts on his left hand. The first of these circumstances is easily explained. A person who has been named as al murderer, whether rightly or wrongly, usually makes himself scarce. As for the recovery of the knife, the trial Judge was so t fully satisfied regarding the truth of the direct evidence that lie did not find it necessary to rely on, or even to discuss the value of this evidence. In the High Court, this recovery was treated as if it was the only evidence in the case after the eye‑witnesses had been disbelieved, and relying on a decision of the Federal Court, they held that the mere production of this weapon was not sufficient for the conviction of the accused. They pointed out also that Kala had been in Police custody for 5 days before he produced the dagger. Since it is not alleged that the murderer was pursued from the spot, he had ample opportunity to clean the knife before he disposed of it. Kala was not arrested until two days after the occurrence. The High Court were, in my opinion, justified in regarding this recovery with suspicion. As for the cuts on Kala's left hand, which it is suggested he received from his own knife in the course of striking blows with it, the allegation that he struck the first blow at Sheeda's right flank from behind, makes it clear that the knife was held in the right hand. The cuts are, in any case not characteristically such as could not be received otherwise. I have considered the entire evidence and all aspects of the case from the point of view that to reverse the acquittal by the High Court and replace it by a conviction are possible only if the Supreme Court be satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction of the offence charged. I have also considered it from the aspect of discovering whether the doubts, felt by the learned Judges of the High Court were doubts arising out of and inhering in the evidence and circumstances of the case, or whether on the other hand, they were doubts of an artificial character which resided more in the minds of the learned Judges than in the matters which had been established by the evidence in the case. My conclusion is that the doubts which induced the learned Judges in the High Court to set aside the conviction of Kala and to acquit him were substantial doubts affecting the possibility of belief in the truth of the prosecution case. I find myself in agreement with them and at the same time on independent examination of the evidence, I am clear in my mind that this is not a case in which a finding of guilty can be reached with confidence. I would accordingly dismiss this appeal. S. A. RAHMAN, J.‑The respondent Kala was tried for the murder of Abdur Rashid, alias, Sheeda and sentenced to death. On appeal and reference, the High Court of West Pakistan set aside his conviction and sentence and ordered him to be acquitted of the charge. Special leave to appeal from the order of the High Court was granted to Siraj Din, father of the deceased Sheeda, as it was felt that there were certain features in the evidence in the case, which would justify its review by this Court. The prosecution story was that the deceased Sheeda lived in Qila Lachhman Singh on Ravi Road, but had come to the shop of his father, Siraj Din, P. W. 11, in Chowk Surjan Singh near Mod Bazar, on the afternoon of the 19th January 1961. He intended to see his mother and sisters, who were residing with Siraj Din in Kucha Kundigaran, off Moti Bazar. At about 5‑30 p.m., it is stated, the father and son left the shop for the former's house. They bad reached the junction of Moti Bazar and Kucha Kundigaran and were about to turn towards the latter lane when the deceased asked his father to wait for him as he wanted to go and purchase some cigarettes from the bazar. The father, therefore, tarried at the entrance to the Kucha Kundigaran while the deceased proceeded through the bazar and when he was opposite the shop of Bashir, green grocer, he was suddenly attacked by Kala respondent with a dagger. At that moment the deceased was exchanging salutations with Aslam, P. W., who was in front of the shop of Siddiq, P. W., next door to that of Bashir. Sheeda had felled down with two blows of the dagger in his right side and then done to death with further blows. The culprit is alleged to have dragged the body of Sheeda to a short distance where he left it shouting that he had avenged the murder of his brother. The respondent's brother, Maja, had been killed some ten years before, by a brother of the deceased who had been awarded the sentence of transportation for life by the trial Court but whose sentence had been reduced to three years' rigorous imprisonment only on appeal, by the High Court. The present murder, therefore, was represented to be an act of reprisal on the part of the accused respondent. The first report of the incident was lodged at the Mast' Gate Police Post at 6‑30 p.m., by Siraj Din, the father of the deceased. It was recorded by Head Constable Mehraj Din, P. W.

16. In that report, the only witnesses of the incident mentioned, were Gulzar Hasan, P. W. 12 and one, Ghulam Mohyuddin, who was not examined in the case. The venue of the occurrence was represented to be a place opposite Bashir, green‑grocer's shop, but there was no mention in the report that any of the shopkeepers in the bazar were eye‑witnesses of" the occurrence or that Aslam P. W. was close to the deceased when the latter was attacked. The Head Constable went to the spot soon after 6‑30 pan. He had, however, sent a copy of the report to the Yakki Gate Police Station and Abdur Razzaq Khan, S. H. O., had already therefore arrived at the spot before the Head Constable did. This was despite the fact that the Police Post was only a furlong from the site of the crime, whereas the Police Station was some five furlongs distant. The Station House Officer at once took up investigation and examined several shopkeepers. The accused was searched for during the night but was not arrested till the 21st of January 1961. In consequence of certain information received by the Investigating Officer, the latter went and found the accused sitting under the Ravi bridge. On the 26th of January 1961, the accused produced a blood‑stained dagger from where it lay buried beneath a culvert in the Minto Park area. The stains on this dagger were proved by expert evidence to be those of human blood. Similar stains were found on the sheath of a dagger that had been picked up from the site of the crime by the Station House Officer. A cap and shoes of the deceased were also found there just near the spot. Some vegetables belonging to Bashir green‑grocer, were also taken into possession as they were blood‑stained. The autopsy on the deceased's dead body showed that there were some 18 incised wounds on his person, one of them being described as a multiple incised wound on the right side of his face. They included a big incised wound 5" x 1 1/8", deep to the vertebral column, in front of the neck, under which all blood vessels, the trachea and the oesophagus were cut. The number and nature of the injuries clearly establish that the attack was homicidal in character. Kala accused was also examined by the doctor on the 21st January 1961, and found to bear three superficial cuts, two on the left thumb, palmer surface, and one on the palmer surface of the left middle finger. He also had an abrasion, " x 1/8'', on the inner aspect of the right index finger. All these were simple injuries. When examined by the Committing Magistrate the accused admitted that Labha, brother of Sheeda, had murdered his own brother, Maja, several years prior to the present occurrence, that Labha was sentenced to transportation for life by the trial Judge and that his sentence was reduced to three years' rigorous imprisonment only by the High Court, on appeal. He denied that he had led to the recovery of a blood‑stained dagger as alleged by the prosecution or that the dagger, Exh. P. 1, belonged to him. He assigned the case against him to the enmity of the P. Ws. At the trial, he adhered to this statement and added that he had not absconded from his house in Moti Bazar as was being suggested by the prosecution. According to him, he did not learn of Sheeda's death on the night of the 19th January 1961, but coming to know of it next morning, he appeared before the D. S. P. at about mid‑day. He was then sent to the Police lock‑up of the Kotwali where on the, 21st of January 1961, Abdur Razzaq, S. H. O. caused some minor injuries on both his hands with a dagger. They then got him medically examined and he was formally arrested. He asserted that the prosecution witnesses were under the influence of the complainant, Siraj Din, who had enmity with him. He had called in defence the record of the Electricity Office to prove that in the Moti Bazar area, electric lights were off from 5‑30 p.m. to 7‑15 p.m. on the day of occurrence. The records were not brought to Court before the trial was concluded and the Line Superintendent of the Electricity Department having been summoned at the request of the accused only one day earlier, declined to appear as he had not been summoned through proper official channels. The learned trial Judge did not think it necessary to wait for that record or to re‑summon the Line Superintendent as he took the view that the prosecution witnesses claimed to have identified the culprits not by electric light but in the twilight following sunset. Five witnesses were examined on behalf of the prosecution to give direct evidence of the crime. These are P. W. 11, Siraj Din, P. W. 12, Gulzar Hisan, P. W. 1 3, Muhammad Aslam, P. W. 14, Muhammad Siddiq and P. W. 15, Ashiq. Ghulam Mohyuddin who was one of the witnesses mentioned in the F. I. R., was said to be not traceable at the time of the trial and so could not be examined as a witness. Out of these five witnesses, Siraj Din is the father of the deceased and claimed to have witnessed the whole incident from start to finish. Gulzar Hasan alleged that he was going to visit the grave of a saint in the Begum Shahi Mosque in the vicinity and happened to pass through Moti Bazar at the relevant time. He does not live in this locality. Siddiq and Ashiq claimed to have been present at their respective shops at the time while Aslam asserted that he was at the shop of Siddiq to buy some vegetables, and was thus able to see the occurrence. None of these four witnesses was proved to be in any way related to the deceased or to have any direct enmity with the accused. The learned Judges of the High Court have expressed the view that the evidence of Muhammad Aslam, Muhammad Siddiq and Ashiq Hussain did not appear to be free from doubt. They pointed out that all these three witnesses were known to Siraj Din, the informant in the case, and it was therefore surprising that none of them should have been mentioned in the first report as an eye‑witness. Siraj Din asserted that he knew Siddiq and Ashiq by their faces only and not by their names. But these two witnesses belied Siraj Din by saying that he was known to them. Muhammad Aslam too being a resident of Siraj Din's mohallah, was well‑known to him. Mainly on the ground, therefore, that no reference existed in the F. I. R. to these three witnesses, the learned Judges were of the opinion that it would be unsafe to rely on their evidence. With regard to Gulzar Hasan, their criticism was that though Siraj Din tried to make out that he did not know Gulzar Hasan and Ghulam Mohyuddin previously and that these two had given to him their names only, just before he left for the Police Post, yet in that report he apparently got recorded their names as well as their parentage. Gulzar Hasan also tried to support him by saying that he and Ghulam Mohyuddin had, on his inquiry, given their names only to Siraj Din. The learned Judge, therefore drew the inference that "the names of both of them and the first report were recorded afterwards." An alternative explanation may well be that though Siraj Din knew these two witnesses well enough, he tried to make them out to be strangers, to enhance their credit. If the first report had been drawn up by the Police, after arrival at the spot, the absence of some shopkeepers from the category of eye‑witnesses named therein, would be remarkable. Gulzar Hasan's explanation that he was on his way to a Pir's mazar in Begum Shahi Mosque, was not accepted as true, on the ground that he was unable to name the Pir in question, although he stated that he had visited the mazar previously also. It was added that there were no electric lights at the time of the occurrence, the offence was committed after sunset and Gulzar Husain who did not know the accused before, was not put to any identification test to establish his bona fides as an eye‑witness. The learned Judges therefore thought it unsafe to accept the testimony of Gulzar Hasan who was a mere chance witness. The learned Judges then examined the testimony of Siraj Din, P. W., at length and recorded the finding that his evidence alone could not be relied on for basing the conviction of the accused. They observed, inter alia, that there was no apparent reason why Siraj Din should have stayed at the turning to the Kucha Kundigaran, while his son went into the bazar to purchase cigarettes, considering that Siraj Din's house was only a short distance from there. Siraj Din's conduct as a father was also not regarded as consistent with the demands of the occasion, in so far as he had failed to intervene physically to rescue his son. Siraj Din had also omitted to mention in the F. I. R. that the culprit had left a cover of his dagger at the site of the crime. Siraj Din's testimony, according to the learned Judges, did not explain the presence of the appellant In front of Bashir Ahmad's shop and they thought that there was at best a chance encounter between the deceased and the accused. They also thought that no trail of blood was found from the place of the murder to the spot to which the body of the victim is said to have been dragged by the culprit, and the doctor who performed the autopsy, did not mention any marks of dragging on the dead‑body. The recovery of the dagger at the instance of the accused was apparently not doubted by the learned Judges, but they held that this piece of evidence by itself was insufficient for the conviction of Kala specially, as the dagger had been produced by him after he had been in Police custody for five days. In view of these findings the learned Judges held that the case was not proved beyond reasonable doubt. They therefore allowed the appeal of Kala and acquitted him. Normally, it Is true, this Court does not undertake to re -evaluate evidence which, after due consideration, may have formed the basis of legal orders by the Courts below, unless it is found that there has been a miscarriage of justice owing to disregard of forms of procedure or of well‑recognized principles relating to the appreciation of evidence. Mr. M. Sleem who appeared on behalf of the respondent before us, contended forcefully that the High Court had given good reasons for rejecting the prosecution evidence in this case as unreliable and that therefore this was not a fit case in which this Court should exercise its criminal appellate jurisdiction. Considering all the circumstances of the case, he argues, no interference with the order of acquittal was called for. He emphasized this by saying that the deceased, according to evidence, had other enemies, one or more of whom might have been responsible for the crime. Taking the last point urged by Mr. Sleem first, it is note worthy that the crime was committed in an open bazar at evening time and must have been therefore witnessed. Even if Siraj Din was not himself an eye‑witness, it would be extremely probable that he should have come to know who the actual culprit or culprits were. It would then be strange if he sub stituted the actual culprits by Kala respondent without good ground. No offence had been given by Kala to the complainant's family. On the contrary, the motive suggested was that Kala harboured a grudge against the deceased's family, one of whose members had earlier killed his own brother, Maja. In these cir cumstances, it is not intelligible why the real assailant or assailants should have been allowed to go scot‑free and Kala implicated falsely instead. Such substitution would, in my opinion, be a rare phenomenon, specially when only a single culprit is charged with the crime. The learned Judges seem to have assumed that there were no electric lights in the bazar at the relevant time and that there was no trail of blood between the place where the deceased was said to have been attacked and the spot where his dead body was eventually thrown. These two assumptions appear to have coloured the approach of the learned Judges to the whole evidence. I am inclined to think that the assumptions were erroneous. The Investigating Officer deposed on oath that he had seen blood marks between the two places and had noted the fact in his Police diary. The absence of drag marks on the body of the deceased may be accounted for by the probable presence of thick clothing on the person of the deceased as it was winter time. There is further, actually no evidence on record to establish that there were no lights in the bazar at the time of the occurrence. All that we know is that an effort was made on behalf of the accused in the trial Court, to prove that on that day lights were off in that area between 5‑30 p.m. and 7‑15 p.m. No such evidence however was actually adduced. The Police Officers who were concerned with the case, all deposed that when they reached the spot, the lights were on. The Head Constable also stated that when he recorded the report at the Police Post, he had done so with the aid of electric light. The probability therefore is that even at the time of the occurrence, lights in the bazar were on. In any event, there must have been lights on the shops even if the public lights were not there. Moreover, the occurrence being timed at 5‑45 p.m. there must have been twilight as the sun had set on that day admittedly at 5‑25 p.m. It could not have grown so dark as to prevent identification of the culprit by persons who knew him, some 20 minutes later. There is a good deal of force in the criticism made by the learned Judges, of the testimony of Siraj Din and Gulzar Hasan, P. Ws. There are undoubtedly infirmities in their evidence which justified the view taken of their evidence in the High Court. The F. I. R. given by Siraj Din at tile Police Post could however have been used only to contradict its maker, if he gave evidence at the trial. It could not be used as substantive evidence to belie the claim of the other P. Ws., to be eye‑witnesses, by the mere fact of the omission of any reference to them therein. Siraj Din may have had his own reasons for not naming the shopkeepers or Aslam P. W. as witnesses of the crime. This was a case of a blood feud and he may have entertained the notion that businessmen of the locality would be chary of involving themselves in this quarrel between two families and may not be willing to depose as witnesses in this case. The suspicion may well be entertained as seems to have been done in the High Court that Gulzar Hasan and Ghulam Mohyuddin had been named by Siraj Din in the F. I. R. as eye‑witnesses, on the strength of his confidence that they would be willing to support the prosecution story on account of intimate relations with him. The story put forward that they were not known to Siraj Din previously, appears to be open to grave doubt. But even in the first report it was clearly specified that the incident had happened in front of Bashir green‑grocer's shop. It was, therefore, natural for the shopkeepers round about the spot to have seen what happened before their very eyes. Siddiq and Ashiq had no axe of their own to grind in this case. They made straight forward statements and beyond a mere suggestion that they might have been under the influence of Siraj Din in cross‑examination, which was repudiated, there was nothing to shake their credit in the present case. Indeed it is to their credit that they do not refer to the presence of Gulzar Hasan or Ghulam Mohyuddin at the spot at the time of the attack on the deceased. Ashiq seems to have seen them there only‑ after the Police had started investigation. Ashiq was only a lad of 12 or 13 years' age. If he was frightened into running away from the shop, when the murder was committed, to his employer's house, his action would be understandable. When he came back to the spot the Police were already there. There is similarly nothing brought out in the cross‑examination of Aslam, P. W., to suggest that he was perjuring himself in the present case. He undoubtedly belonged to the Mohalla of Siraj Din but that was not enough to impeach his veracity. He had no enmity with the respondent and no special relations with the complainant. The respondent too belongs to the same locality. There are no discrepancies on any material point in the statements of these three witnesses. Muhammad Aslam's presence at the spot was confirmed by the statement of Siddiq P. W., to whose shop he had gone for purchasing vegetables. The mere fact that these three witnesses) found no mention in the F. I. R. was not by itself a sufficient reason for discarding their testimony in the circumstances of the) present case. They seem to have been examined by the Police after they arrived at the spot. Muhammad Aslam too had gone away from the spot immediately after the occurrence and was called at about 10 p.m. there, by the Police. The criticism that he should have stayed there till the Police came, does not appear to me to be legitimate as he was not connected with the deceased and had no obligation to act as suggested. In my judgment, therefore, the High Court misdirected themselves in regarding the evidence given by these three eye‑witnesses as open to doubt merely on the ground that the informant had chosen not to refer to their presence in the F. I. R. No doubt, the omission of the name of a witness from the first report, may lead a Court to look askance at his testimony and to entertain the suspicion that he was procured later by the prosecution. But that cannot be sanctified into an invariable or inflexible rule of appraisement of evidence. An independent scrutiny of the evidence of witnesses who failed to find mention In the first report may establish their bona fides. The High Court judgment, I regret to note, contains no indication of any such attempt at independent appraisal. The time and place of the occurrence in the present case are not open to doubt and this seems to me to be enough guarantee for the presence of these witnesses at or near the spot at the relevant time. I am not impressed by the argument that there were no lights in the Moti Bazar at the time of the occurrence. The evidence shows that it was still twilight when the attack was made on the deceased and since the culprit was known to the three trustworthy witnesses, namely, Siddiq, Ashiq and Aslam, there could not have been much difficulty in identifying him. The number of injuries inflicted on the deceased was sufficiently large and must have taken a good few minutes to inflict. The accused's allegation that lights had been shut off from the area, uptil 7‑15 p.m., was strictly not substantiated by evidence on the file. It is significant that no question was put to these witnesses in cross‑examination, on this point. But even if that fact may be assumed to be correct, it does not detract from the value of the eye‑witnesses' statements. It stands to reason that even if the electric lights were off, the shopkeepers must have made provisional arrangements for other lights for the benefit of their customers, and apart from that, it had not yet grown quite dark when the incident happened. There was, in my opinion, no reason why full reliance should not have been placed on the testimony of these three eye‑witnesses and the rejection of their evidence has, to my mind, led to a failure of justice, in this murder case. The recovery of a dagger stained with human blood at the instance of the accused respondent, lends further corroboration to the testimony of the eye‑witnesses. The recovery is established by good evidence on the record and even the High Court was not inclined to reject it as mere "padding" in the case. The fact moreover that for two days the accused could not be found at his house by the Police who were looking for him, is a pointer in the direction of his guilt. No definite counter‑version was placed on the record on behalf of the accused and no evidence was called to rebut the prosecution story as to the details of the occurrence. The presence of minor injuries on the hands of the accused are not adequately explained but the suggestion made by the accused in that connection is also extremely un-convincing. As the doctor deposed at the trial, if these injuries had been inflicted by a third person, then these should have been deeper than they were. He did not rule out the possibility that they were sustained by the accused while inflicting injuries on the deceased. The accused may perhaps be left‑handed or even ambidexterous. On a careful review of the whole evidence I have formed the conviction that the accused respondent had been correctly named as the assailant of the deceased and that he had motive for the commission of the offence. I would, therefore, allow the appeal, set aside the acquittal of the respondent and convict him under section 302, P. P. C. for the murder of Sheeda. As, however, a good deal of time has elapsed since the date of the occurrence, I would refrain from imposing the capital sentence on the respondent and would award him the lesser sentence of trans portation for life. FAZLE‑AKBAR, J.‑I agree with the conclusions announced by my lord the Chief Justice and in substance with the reasonings upon which those conclusions are reached. I only venture to state separately the principles on which this Court exercises its limited jurisdiction in criminal appeals against acquittal. In this connection reference may be usefully made to the practice of the Judicial Committee for indicating the area of interference in criminal matters because this Court has also adopted that practice. Before abolition of jurisdiction of the Privy Council the law did not provide for appeals against judgment of the High Court in criminal matters. The Judicial Committee which entertained appeals in criminal cases in exercise of the prero gative of the Crown repeatedly laid down the limits with which it exercised that power in criminal cases. In Dal Singh v. King Emperor (AIR 1917 P C 25) the Judicial Committee while dealing with a criminal appeal observed:- "The general principle is established that the Sovereign in Council does not act, in the exercise of prerogative right to review the course of justice in criminal cases in the free fashion of a fully constituted Court of Criminal Appeal. The exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred. A mere mistake on the part of the Court below, as for example in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below." From the above as well as the other pronouncement of the Judicial Committee ft is clear that they "will not review or interfere with the course of criminal proceedings unless it is shown that by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done." See also In re : Bertrand's case ((1867) 1 P C 520) ; Abraham Mallory Dillett ((1887) 12 A C 459) ; Taba Singh v. Emperor (AIR 1925 P C 59); Otto George Gfeller v. The King (AIR 1943 P C 211); Mohindar Singh v. Emperor (AIR 1932 P C 234) and Muhammad Nawaz v. Emperor (AIR 1941 P C 132). Now reference may be made to a few observations of this Court indicating the limits within which it will interfere in such cases. In the case of Muhammad Ashiq v. Allah Bakhsh and another (P L D 1957 S C (Pak.) 293=(1957) 2 S C R (Pak.) 106) on a petition for special, leave to appeal against acquittal, this Court observed: "In a more general view of the Court's jurisdiction, which is still being exercised on the principles laid down by the Privy Council in a number of cases where the limits of their jurisdiction in Criminal matters came under consideration, we feel no doubt in saying that the Court will not, in a proper case, hesitate to interfere where the circumstances indicate that there has been a grave miscarriage of justice by some disregard of the forms of legal process, or by some violation of the principles of natural justice." In the above case the Court while refusing leave observed: "Every point of criticism raised before us goes to the appreciation of the evidence by the High Court, in relation to the general circumstances of the incident, and, as to these matters, the consistent practice of the Court has been not to interfere with such findings in the absence of "something so irregular or outrageous as to shock the very basis of justice." In Fateh Muhammad v. Bagoo and others (P L D 1960 S C 286), Cornelius, J. as he then was, observed: "This Court on principle hesitates to interfere with con clusions of fact recorded by High Courts. That is a principle which will be departed from only in very exceptional cases, namely, in those cases in which some other equally important or more important principle has been violated. Thus if the decisions of a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where has been a departure from due procedure, in the reception of evidence or otherwise, in the trial of the matter, which is calculated to interfere with the due or safe dispensation of justice, interference by this Court will become necessary." In Zafar Ali v. The State (P L D 1962 S C 320) observations of Kaikaus, J. were also to the same effect: "If there be no violation of a principle by the Courts below in the assessment of the evidence before them, this Court would not interfere, for it is not the practice of this Court to enter into an appreciation of evidence in criminal appeals." From the above it is clear that this Court sees no reasons to depart from the principles which have been laid down by the Judicial Committee defining the limits within which interference with the course of criminal justice dispensed in the subordinate Courts is warranted. This position has also not changed under the present Constitution. This Court's jurisdiction in respect of criminal appeals may be classed under two categories namely, cases where right of appeal is expressly granted under clause 2 of Article 58 of the Constitution ; and the cases where the Court is called upon to exercise its power by granting special leave under clause 3 of Article

58. Now clause 2 of Article 58 does not provide for appeal against acquittal but Article 58 (3) corresponds substantially to Article 160 of the late Constitution. It is therefore clear that the principles laid down in cases which were admitted under Article 160 of the late Constitution still hold the field. Hence the question is : Whether having regard to the principles on which this Court exercises its limited jurisdiction under Article 58 (3) of the Constitution there are good grounds for interference with the order of acquittal. The point which the learned Judges had to decide was: Whether it was the appellant who murdered Abdur Rashid alias Sheeda? This was a pure question of fact turning on evidence. There were 3 eye‑witnesses whose evidence the High Court was not prepared to accept. There was certainly suspicious circumstances which demanded a most cautious approach. The High Court in appraising its reliability has given due weight to certain broad features of the case which throw doubt as to their presence at the time of occurrence. It will be impossible to say that the reasons given by the learned Judges of the High Court in rejecting their evidence were obviously untenable such as no prudent man could have based his decision on. It cannot therefore, be said that their findings of fact were such as were `shocking to the judicial conscience.' Nor they have contravened any rule or legal principle in arriving at their conclusion. This being the position, I, in accordance with the normal practice of this Court in such matters, must dismiss this appeal. B. Z. KAIKAUS, J.‑I need not state the facts for these appear from other judgments and will come directly to the questions involved in this case. The evidence before the High Court consisted of (i) statements of eye‑witnesses ; (ii) recovery of blood‑stained dagger at the instance of respondent; (iii) evidence relating to the absconding of the respondent and his arrest ; and (iv) the motive. The learned Judges rejected the evidence of Gulzar Hasan as he was a chance witness who had given no proper explanation for his presence at the spot and as he had not been put to any identification test though he did not know the respondent before. Ashiq, Muhammad Aslam and Muhammad Siddiq were dis believed on the ground that their names did not appear in the first information report. With respect to Siraj Din, the learned Judges came to the conclusion after a consideration of various circumstances that he was not present at the time of occurrence and had reached the spot later. This left the learned Judges only with the recovery and the motive and the learned Judges held that the recovery itself would not bring home the charge to the respondent; I am of the opinion after going through the record and hearing counsel that there had been a miscarriage of justice in this case. It is true that we would not interfere in any case of acquittal just because we might ourselves have taken a different view. If out of two views that could reasonably have been taken the High Court has taken one view that would not by itself be a sufficient ground for interfering with the finding of acquittal. But what is stated above is all that can be said and I do not think that there is any case dealing with the question of interference with an acquittal where a rule more favourable to the accused has been positively laid down. The Criminal Procedure Code makes no distinction between an appellate Court dealing with an appeal against an acquittal and an appellate Court dealing with an appeal against a conviction. The Criminal Procedure Code does not apply to an appeal before this Court, but had there been a distinction in the Criminal Procedure Code between an appeal against acquittal and an appeal against conviction an argument may have been founded on it even in relation to an appeal before this Court. But in spite of the absence of any such distinction on account of the caution that the Court naturally exercises with respect to persons accused of offences there would be a difference in the attitude of the appellate Court. It may in the case of an appeal against conviction take one out of two reasonable views which is in favour of the accused, though the lower Court has taken the other view whereas it would not in a case of acquittal take one out of two reasonable views which is not in favour of the accused. I would at the same time point out that there will be some difference between a case where the Court below has heard the witnesses and has disbelieved them having watched their demeanour and a case where the Court below had before it a cold record and its inferences depend on pure reasoning. However, in the present case it appears to me that the High Court has failed properly to apply its mind to the circumstances and the record. There are aspects of case which ought to have been considered and which have not been considered and there is some misreading too which is not altogether unimportant. It refused to accept the evidence of three eye‑witnesses merely because their names had not been mentioned in the first information report lodged by Siraj Din. It then considered whether Siraj Din was present at the spot and came to the conclusion that he was not present. It was the duty of the High Court then to consider whether any and if so what value could be attached to the omission in the first information report of the names of witnesses when such report had been lodged by a person who had not seen the occurrence at all and with respect to whom there was no evidence whatsoever that before lodging the first information report he had met any of the eye‑witnesses. While dealing with the question as to the weight to be attached to omissions or contradictions appearing in the first information report the fact that the report is not lodged by an eye‑witness is a very relevant circumstance. Whatever the conclusion that the learned Judges might have reached this was a matter which called for their attention. It did not appear to the learned Judges that actually there was, a slight inconsistency in the two portions of their judgment for on the one hand they had held that Siraj Din had not seen the occurrence and on the other hand they were holding that because he had not mentioned the names of the persons who were produced as eye‑witnesses, the eye‑witnesses should not be believed. The learned Judges at the same time did not consider whether there may not be reasons even if Siraj Din knew that a number of persons had witnessed the occurrence, for not stating their names. He was lodging an F. I. R. against a person who at 5‑45 p.m., in a congested bazar in the town of Lahore, the Capital of West Pakistan, had the boldness to slaughter a person and to give him as many as eighteen injuries and whom no one had tried to prevent from doing so. He was lodging an F. I. R. obviously against a desperate character and it would not be quite easy to find persons who, though they had seen the occurrence, would come forward as witnesses. If he had named any of them the non‑production of those witnesses would go against the prosecution. Under the circum stances he may have thought it safe to name only those persons on whom he could rely and to make no mention of any other person at all at the spot, although it should be apparent that the occurrence must have been witnessed by a number of persons. It is the distinctive feature of this F. I. R. that it makes no mention whatsoever of any person excepting Gulzar Hasan and Ghulam Mohyuddin. It omits to refer to any shopkeeper. The time was 5‑45 p.m. and in a congested bazar in the town of Lahore it would be impossible for any body to contend that there was no person to witness such an occurrence and the occurrence was not a very short one for a large number of injuries had been inflicted and it must have taken some time. The sun had set at 5‑25 p.m. that day so that the time of the occurrence is only about 20 minutes after sun set and there would still be light. In fact the Head Constable who recorded the first information report has stated that there was still enough day light when Siraj Din came to the police post. The crucial point which the High Court failed to consider was whether the occurrence was witnessed by the shopkeepers. If the offence had taken place in front of Bashir's shop and quite near the shop of Siddiq were these shops open at that time or were they closed ? In the whole judgment of the High Court there is no reference whatsoever to this aspect of the matter. Ordinarily we cannot presume the absence of persons witnessing this occurrence in a place like Moti Bazar at 5‑45 p.m., but there was even positive evidence on the record showing that the shops were still open when the Investigating Officer went to the spot. Siddiq P. W., was presumably present at his shop because no one went to bring him whereas for other witnesses the S. H. O. sent constables. Mr. Abdur Razzaq Khan S. H. O. had stated that when he reached the spot the electric lights in shops as well as in the Bazar were on. He had at that time even recorded the statements of shopkeepers other than Siddiq and Ashiq. The learned Judges, however, failed to refer to the record and they did not consider whether the occurrence would be witnessed. One could even presume, that keeping in mind the time and the place the incident, that it would be witnessed, but in any case very little evidence would be needed to show that it was in fact witnessed and that evidence was there. Once we reach the conclusion that the occurrence had been witnessed by the shopkeepers there can be little doubt that they have not named the wrong person. There is not the slightest reason for any substitution. There is only one accused before us although there are a large number of injuries. The witnesses had been examined shortly afterwards. Ashiq is just a boy of twelve or thirteen years. There is not the slightest suggestion as to any enmity which he might bear the respondent. He takes a big risk in giving evidence against an accused person who is guilty of acts like the one which is the subject‑matter of this trial. He is a natural witness and his statement too is natural. He was shocked by the incident and fled to the house of Bashir his employer. The attack took place in front of the shop of Bashir at which Ashiq works. The S. H. O. had found some potatoes and palak lying in front of the shop of Bashir which were found to be blood‑stained. Ashiq had stated that in front of the shop bundles of methi and potatoes were lying and Sheeda's blood had fallen on them. Siddiq's shop is next to that of Bashir. As already observed he had been found on his shop when the S. H. O. came to the spot. Against him too there is not the slightest suggestion of animus against the appellant. The presence of Muhammad Aslam P. W., has been deposed to by Muhammad Siddiq P. W. as well as Ashiq. P. W. He had come to the shop of Siddiq for purchasing vegetables. He is a resident of Mohalla Kundigaran, the Mohalla of Siraj Din which is closed to the place of occurrence and it was natural for him to buy his vegetables at this place. He too is an entirely independent witness. The appellant was very well known to him. The appellant is a resident of Mod Bazar area and as appears from the statement of Siddiq he is a frequent visitor of Moti Bazar. The High Court has at the same time overlooked a signi ficant fact. The dead body had been dragged from the place of occurrence to the place where Maja the brother of the appellant had been killed ten years ago. That Maja had been killed at the place to which the dead body was ultimately taken had been stated by Siraj Din and had not been challenged in cross- examination. A trail of blood had been found by the S. H. O. from the place where the deceased met his death to the place where the body was found. On a question put by the defence the S. H. O. had consulted his diary and had found a statement to this effect in the diary. The learned Judges of the High Court relied on the other hand on the fact that no trail of blood had been found from the place of attack to the place where the dead body was found. Here the learned Judges misread the record on a material point. The learned Judges reached the conclusion, from the fact that the parentage of Gulzar Hasan and Ghulam Mohyuddin appeared in the first information report, that this report had been recorded at the spot for Siraj Din had said that he did not know the parentage of these witnesses. But this was not a necessary inference. It may well be that Siraj Din knew these witnesses better than he was prepared to acknowledge. The learned Judges of the High Court also relied on some admissions made by Siraj Din that there was another party who had enmity with Sheeda deceased. Sheeda had been sent up for trial about four years before the present occurrence for the murder of one Tooth, but was acquitted. The learned Judges suggested that some relatives of Tooth who were residing in Siraj Din's street may have murdered the deceased. The whole assumption of this argument is that in an attack made at 5‑45 p.m. in a congested bazar of Lahore town wherein a person had been slaughtered and no less than eighteen injuries (they may be more for one is a multiple incised wound) had been caused, the assailant was not seen at all, an assumption which I am not prepared to make. It would not be improper to observe here that with eighteen injuries if a false case was to be made out which could be supported by false evidence it was quite easy to involve a number of persons instead of lodging a report against a single accused. The High Court also failed to take into consideration that the Additional Sessions Judge who had examined the witnesses had believed them and the witnesses whom he believed were such that their presence at the spot was natural, their statements did not suffer from any inherent defect and they did not bear the slightest enmity to the appellant. Strong reasons are needed for differing with the trial Court in such a case. The learned Judges failed to take into consideration that the false implication of an accused person in a charge of murder which may lead to a sentence of death for persons who bear no enmity whatsoever to the appellant is a rare occurrence. It is nobody's case that the witnesses are professional witnesses. There is no suggestion at all as to why they should make a false statement. Under the circumstances was the High Court justified in differing from the Additional Sessions Judge merely on the ground that the witnesses had not been named in the first information report by a person who according to the finding of the learned Additional Sessions Judge was not present at the spot and who had refrained from naming any person as an eye witness except two chance witnesses although a number of persons including shopkeepers in front of whose shops the incident took place should have seen the occurrence? The learned Judges while dealing with the evidence of recovery had said that such evidence was not sufficient for conviction. They did not take this evidence into consideration for determining whether they should differ with the Additional Sessions Judge. They also at the same time did not take into consideration the absconding of the appellant and the circumstances, in which he was arrested, although they did not reject that evidence. Evidence in a case is to be looked at as a whole. While determining whether the finding of the Additional Sessions Judge as to the reliability of eye‑witnesses should be upset the learned Judges should have taken into consideration all the evidence against the accused which they did not reject as against the one single circumstance that Siraj Din had not mentioned the names of these witnesses in the first information report. Had they assessed the evidence in this manner, they may well have reached conclusion different from that which they reached. The defect lies in the approach of the High Court, in its failure to consider important aspect of the case and in its misreading of the record. There can be little doubt that the respondent is guilty. I would accept this appeal, set aside the acquittal and convict the respondent of an offence under section 302, P. P. C. I would, however, in view of the time that has elapsed award a sentence of transportation for life only. HAMOODUR RAHMAN, J.‑This appeal, by special leave granted at the instance of a private complainant, is directed against the judgment and order of a Division Bench of the High Court of West Pakistan setting aside the conviction of the first‑named respondent herein by the trial Court and acquitting him of a charge under section 302 of the Pakistan Penal Code. In this matter I have had the advantage of reading the judgments of my Lord the Chief Justice and my other learned brethern. They appear to be equally divided in their opinions. My Lord the Chief Justice and Fazle‑Akbar, J. are of the view that this appeal should be dismissed but S. A. Rahman, J. and Kaikaus, J. propose to allow the appeal. In the circumstances, I feel it necessary to indicate my own view briefly without repeating the facts of the case which have been fully set out in the judgments of my Lord the Chief Justice and S. A. Rahman, J. The trial Court, it appears, had based the conviction of the said respondent upon : (1) the oral testimony of five eye witnesses of whom the present appellant ; who is the father of the deceased ; was the one who had also lodged the first information report, (2) the recovery of a blood‑stained dagger at the instance of the respondent five days after he had been taken into custody, (3) the evidence of motive, (4) some injuries on the person of the respondent himself and (5) the fact that the respondent was found to have been absconding for two days. The High Court dealt with the evidence of each of the said eye‑witnesses in detail but found their evidence neither accept able nor entirely free from doubt for the reason that the presence of three of the said eye‑witnesses, namely, Muhammad Aslam, Muhammad Siddiq and Ashiq, was not mentioned in the first information report, whilst out of the two persons whose names were given in the first information report, one, namely, Ghulam Mohyuddin, was not examined, and so far as the other, namely, Gulzar Hasan (P. W. 12) is concerned, his evidence was of a most unsatisfactory character. He was not previously known either to the complainant or to the accused‑respondent, never theless, the complainant gave not only his name but also his parentage and address in the first information report. This witness was, furthermore, merely a chance witness, who claimed that he was on his way to a Pir's mazar in Begum Shah! Mosque but he was unable to give the name of the Pir whose shrine he had come from a distance of a mile to visit. He was a resident of Mohallah Sadhoan which is over a mile away from the place of the incident. Again, although the respondent was not known to this witness and the witness only claimed to have seen him for a short while in the course of the incident at a time when the sun had set and there was no clear evidence that there was sufficient light in which clear identification was possible, yet this witness was not put up to identify the respondent at a test identification parade. So far as the complainant, the father of the deceased himself was concerned, if his statements in the first information report are to be accepted, then he clearly claimed to have seen the assault upon his son. In the first information report he has most categorically stated "I saw Kala son of Elahi, caste Gujar, resident of Takia Lub Shah who was already present in front of the shop of Bashir Ahmad, green‑grocer, taking out a dagger from the folds (of his loin cloth) and pludging it into the right hip of my son Sheeda . . . . . Within my very sight cruel Kala Gujar held my son Sheeda by one of his legs and dragged him and threw him in the Chowk of the Moti Bazar and said in a loud voice that he had cooled his heart that day by avenging himself of the murder of his brother." It was surprising, therefore, that a person, who claimed to have seen the incident right from the beginning, should have omitted to mention the names of the persons who were very material eye‑witnesses to the incident and were in fact produced as such at the trial Court to give evidence in the case. Muhammad Aslam, according to the evidence of the com plainant himself, was actually shaking hands with the deceased when the deceased was attacked by the respondent. Ashiq and Siddiq were supposed to have been present in their shops in the immediate vicinity of the place of the incident and they must have been persons who were known to the complainant, who was himself a resident of Kucha Kundigaran one end of which abuts on Moti Bazar. In fact, the complainant claimed that he saw the incident from the corner of his lane, namely, Kucha Kundigaran, yet the only persons named in his first information report are persons, who, according to his version in Court, were not even known to him from before. Notwithstanding this, the first information report gave their respective parentages, their castes and their residences in full and also disclosed that they were only passing through Moti Bazar by chance. It was upon these circumstances that the High Court found it difficult to accept either that the complainant Siraj Din was present at the time of the offence or had seen the offence or that the first information report was recorded either at Police out‑post or according to his version. It has, however, been urged on behalf of the appellant in this case that, notwithstanding these discrepancies between the first information report and the evidence of Siraj Din and the glaring omissions of important facts from the first informa tion report, the evidence of Siraj Din and of the other witnesses examined by the prosecution should have been accepted upon the assumption that since the incident was alleged to have taken place soon after 5‑30 p.m. in a busy market or bazar, there must have been persons present at the bazar who must have seed the incident. In any event, since these witnesses had not been shown to have any direct enmity with the respondent, there was no reason to discard their evidence implicating the respondent alone in the offence, for, it was not possible to believe that an absolutely innocent person had been substituted for the real culprit. The further fact, it is urged, that a few drops of blood were found on some items of vegetables lying outside a shop in the bazar where the incident was alleged to have taken place, should have been treated as a circumstance confirming not only that an incident occurred at the place alleged by the prosecution but also that it occurred in the manner alleged. Having examined the evidence on the record, however, with care I have come to the conclusion that the High Court's order of acquittal cannot be said to have been based either on unsubstantial or upon irrelevant considerations, nor am I in a position to agree with the learned counsel appearing for the appellant that the charge was found by the trial Court to be clearly established by any evidence of "the most patent reliability, which remains entirely un-rebutted and is unaffected by any plea in defence." The principles, which have been consistently followed by this Court for justifying interference with orders of acquittals passed by the High Courts, have been clearly laid down in the cases of Lalu v. The State (P L D 1959 S C 258) and Fateh Muhammad v. Bagoo and others. They seem to indicate that unless "it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported to acquit is at all supportable" this Court will be reluctant to interfere, even though upon the evidence on the record and the facts and circumstances of the case this Court might well have come to a different conclusion if it was trying the case. It is unnecessary, however, for me to dilate on this point, for, I am in full agreement with what has been said in this behalf by my learned brother Fazle‑Akbar, J. I also agree that the position has not changed in any way under the present Constitution. Approaching the judgment of the High Court under appeal in the present case, in the light of the above principles, I find it difficult to agree that any case for interference has been made out. In my humble opinion, the High Court has advanced cogent and convincing reasons, for acquitting the respondent Kala and I would, therefore respectfully agree with my Lord the Chief Justice that this appeal should be dismissed. In accordance with the view of the majority of the Court, the appeal is dismissed. K. B. A. Appeal dismissed.