P L D 1975 Supreme Court 160 (PLP)

9. It was on consideration of these grounds and the criticism and contentions raised thereon by the learned counsel for the petitioner that leave to appeal was granted by this Court, vide order, dated 24‑6‑1968 to examine the justifiability or, otherwise, of the rejection of ocular testimony by the High Court and its process of reasoning leading to entertainment of doubts in regard to its veracity.

10. It was contended before us by the learned counsel for the State; Firstly, that although the initial report made only a vague reference to the motive of murder, namely, dispute over distribution of property, a three‑fold motive stood well established at the trial against the respondent and his son Haroon absconder to murder the deceased who both had strong reasons to commit the crime for the following reasons: (i) Fazal Shah father of Muhammad Shah deceased had gifted his entire property in favour of the latter to the exclusion of his two daughters, namely, Zenaba and Fatima wife of Siddiqullah respondent and mother of Haroon absconder; (ii) Siddiqullah had unsuccessfully sought in marriage the hand of Mst. Memoona the only child of Muhammad Shah deceased for his son Haroon, absconder and on his refusal felt deeply frustrated; (iii) Haroon, absconder, had earlier killed a tenant of Muhammad Shah who had appeared as a P. W. against him resulting in the latter's conviction with award of three years' R. I. Secondly, that the apparent conflict between the ocular testimony and the medical evidence stood completely resolved on a closer examination. It was argued that one could reasonably visualize that having already received the first shot at the hands of Haroon and apprehending a second at the hands of Siddiqullah, the deceased would have instinctively raised his hand and received injury No. 4 which the doctor had erroneously opined as being the result of a separate shot. Thirdly, that in the conspicuous absence of any suggestion made to much less clarification sought from Sahibzada P. W. 6 as to whether he and Muhammad Shah deceased had taken their meals shortly before the occurrence, no adverse inference could be drawn from the un-digested food found in the stomach of the deceased at the time of post‑mortem examination. Lastly, that no suggestion of enmity or false implication was made to Sheereen Said P. W. 5 and Sahibzada P. W. 6 on behalf of the defence and as such the rejection of their testimony by the High Court was based on merely speculative and conjectural grounds.

11. Before proceeding to consider the merit of the contentions raised by the learned counsel for the State, it would not be‑out of place to refer at the outset to a relevant and well‑settled principle of administration of justice enunciated by this Court in Noora and another v. The State P L D 1973 S C

469. While considering the scope of the jurisdiction of this Court under Article 186(3)) of the Constitution of Pakistan, it was held that once leave to appeal was granted the appeal had to be treated completely on equal footing with a appeal filed as of right and there were no valid reasons for the Supreme Court to be inhibited by the limitation which the Judicial Committee of the Privy Council had earlier imposed upon itself. It was elaborated that the Supreme Court had the unfettered powers to do full justice without any self imposed restrictions. In this context, the following observation of my Lordship the Chief Justice of Pakistan is more relevant to the points in issue before us:-‑ "In saying this, however, I should not be understood to be laying down that the opinions of the Courts below, and particularly of the Courts which had the advantage of listening to the witness giving evidence and watching his demeanour, should be disregarded or given no weight at all. As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re‑examination of the evidence untrammelled by the opinions of the Courts below."

12. Earlier, in Siraj Din v. Kala and another PLD 1964 S C 26, while dealing with the scope of the interference by this Court in an appeal against acquittal recorded by the High Court, my Lord the Chief Justice of Pakistan observed as follows: "The principles, which have been consistently followed by this Court for justifying interference with orders of acquittal passed by the High Courts, have been clearly laid down in the cases of Lalu v. The State P L D 1959 S C (Pak.) 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."

13. An interpretation of the above enunciation which is patently clear and self‑explanatory, admits of no equivocation. The principle laid down in a nut‑shell is that the mere possibility of this Court coming to a different conclusion on re‑appraisal of the evidence on the record and the facts and circumstances of the case would not be good enough to justify interference with the judgment of acquittal recorded by the High Court unless all the grounds forming the basis of acquittal were found to be demonstrably) unsupportable. It is by these criteria that I propose to judge the maintainability or, otherwise, of the impugned order of acquittal recorded by the High Court.

14. It is well settled that the weakness of motive or even its complete absence would be wholly immaterial in a case where ocular testimony of an unimpeachable character is available in support of the prosecution case. The motive in this case as alleged in the initial report, namely, the dispute between the parties over distribution of property and further elaborated at the trial has apparently much to commend and lay the foundation of the crime. One would not be surprised if the respondent or his son had in the first instance not only not objected to Mst. Fatima's gift of agricultural land in favour of her brother Muhammad Shah deceased but had also welcomed it or even connived at it in the hope that the land so gifted alongwith the other property of Muhammad Shah deceased might ultimately revert to them in case the deceased was persuaded to give the hand of his daughter, who was his only child in marriage to Haroon absconder. This gesture might have been followed up by a request for the hand of Mst. Memoona whose refusal probably furnished the motive for the murder. Of course, there is no positive and convincing evidence that something had transpired between the parties immediately or a little before the occurrence which provided an impulse to suddenly spark off the smouldering under‑current of spite and hatred. Be that as it may, however, neither the motive nor for that matter the established fact of the abscondence of the respondent or his son who is still at large would be determinative of the fate of this case which substan tially hinges on the credibility or, otherwise, of the two eye‑witnesses and the extent to which reliance can be placed on their testimony.

15. The first question to be addressed to is as to how far the claim of Sheereen Said P. W. 5 of being present at the time and place of occurrence can be believed. There are a host of circumstances which militate against this. Admittedly, Sheereen Said is a resident of the adjacent abadi of Garhi Daulatzai, two furlongs away from the scene of murder. He is also the sister's husband of Muhammad Shah deceased and on his own showing, is a chance‑witness having gone to village Kot Ismailzai with a view to hire a rehra for bringing fuel wood from his well‑stated to be equidistant from the two villages. He candidly admitted that rehras were also available in his own village lout he chose to hire one from Kot Ismailzai in the hope of getting it cheaper. Not only this, he is also a school teacher posted in village Gumbat, four miles away. 10th of October 1965 was a Sunday. His school closed at 11‑00 a.m. although in winter it was kept open till 2‑30 p.m. under the directive of the District Inspector of Schools. He allegedly left the school reaching his village on cycle at about 1‑00 p.m, He then left for Kot Ismailzai at 4‑00 p.m. traversing a distance of two furlongs on foot. Instead of pursuing the object of his visit, he came straight to the hujra of the deceased just to see the two accused armed with guns sitting on one cot according to the F.1. R., and on two different cots according to his statement at the trial. By a strange coincidence almost simultaneously with the arrival of Sheereen Said, the deceased and Sahibzada entered from the opposite direction. On seeing them, the two accused armed with loaded guns proceed‑s ed towards the deceased and getting close to him, fired at him in succession killing him at the spot. An attempt at the visualization of the occurrence as mentally reconstructed with the help of the site plan, Exh. P. B., would leave quite a few important questions unanswered. Leaving aside the conspicuous absence of any evidence as the immediate motive coupled with the coinci dental simultaneous arrival of the brother‑in‑law of the deceased from the adjoining village precisely at the fateful hour, and also disregarding the discrepancy as to whether the two accused were sitting on one cot or on two different cots, one fails to understand as to why did the deceased or for that matter the two eye‑witnesses failed to sense the apparent danger at the hands of the accused who armed with guns proceeded towards the deceased in an apparently threatening posture. While coming from opposite directions, the accused and the deceased met almost half‑way when the former flanked him as evidenced by the site plan, Exh. P. B. The first shot was allegedly fired by Haroon, absconder from point No. 2 followed by his father who was close behind at point No.

3. Unless one were to proceed on the assumption of the belief or make‑belief of cordiality of relationship between the parties which runs counter to the prosecution version the deceased would not have walked into the jaws of death blind‑fold as it were. It is difficult to believe that he was suddenly taken unawares without apprehending foul‑play. The description given by Sheereen Said apart from the doubtful circumstance of his coincidental arrival does not inspire confidence being glaringly in conflict with the oral‑nary course of human conduct. The deceased did not try to rush hack or flee for life. The two eye‑witnesses did not try to intervene and save him. Admittedly, nobody raised an alarm. Even the names of the assailants were not disclosed by the two P. Ws. to the people who were attracted by the gun reports reaching the spot immediately after the occur rence. These are circumstances which were rightly considered and construed by the learned Judges of the High Court as giving rise to reasonable doubts as to the presence of Sheereen Said and the veracity of the version disclosed by him. This criticism equally applies to the testimony of Sahibzada P. W. 6, Lambardar of village Kot Ismailzai who in order to convey an impression of complete neutrality and disinterestedness asserted that he had no relationship with the deemed or enmity with the accused. However, in answer to the first question put to him in cross‑examination, he had to admit that his sister was married to Abdul Ali a first cousin of Muhammad Shah deceased and that she had children from him. His house is 200 paces away from the place of occurrence. He claimed to have accompanied the deceased to Mardan in order to offer condolences to one Haji Qadeerullah and instead of proceeding to his own house returned with the deceased to the latter's hujra where he was shot dead by the accused in his presence. In his statement at the trial, the first reference to the arrival of Sheereen Said in the sequence of events gives an impression as if the deceased had already fallen down on receipt of the second shot at the hands of Siddiqullah when Sheereen Said reached. He was confronted with his statement under section 164, Cr. P. C. wherein he had stated that the deceased fell down on receipt of first shot by Haroon, absconder. He would also have us believe like the other witness Sheereen Said that they did not raise any alarm. The assertion of the two witnesses, who were undeniably related to the deceased, that they were the sole witnesses of this ghostly drama of murder committed in broad daylight in the centre of the village has to be taken with a grain of salt. The discrepancies in the statements of the two witnesses made before the police, before the Magistrate in the proceedings under section 512, Cr. P. C. and at the trial have been brought out on the record on the points inter alia of the distances from which the shots were fired, whether the accused were sitting on one cot or two different cots and whether the deceased fell on receipt of the first shot or the second shot. Sahibzada appears to have taken meticulous care not to disclose the name of any person who reached the spot immediately after the murder was committed. The statements of the two witnesses do not, therefore, inspire confidence and were rightly rejected.

16. But what really makes their testimony all the more doubtful virtually giving them a complete lie is the irreconcilable conflict between their statements and the medical evidence on three points: Firstly, both the witnesses consistently stated that the two accused had effectively fired one shot each at the deceased resulting in as many as nine fire‑arms injuries found by the doctor during post‑mortem examination. Of this injury No. 4 which unlike other injuries denoted a lacerated wound on the radial border of left wrist joint and fore‑arm 4" x 3" resulting in fracture of both the radius and ulna had been clearly attributed by the doctor to a distinctly separate shot. The explanation offered by the doctor in cross‑examination appears to be quite plausible and convincing. He was positively of the view that the injuries suffered by the deceased were the result of at least three shots if not more. This apparent conflict was sought to be resolved by the prosecution on the assumption that on receipt of the first shot the deceased having instinctively raised his hands to the level of chest had got his wrist joint and fore‑arm extensively injured resulting in a lacerated wound, besides injuries to the chest. But even assuming that one were to accept this rather doubtful explanation of injury No. 4, the prosecution has to cross yet another hurdle, namely, the presence of undigested food from the stomach of the deceased which would clearly indicate that the last meals had been taken by him about two hours before his death which does not fit in with 4‑30 p.m., the alleged time of occurrence. Secondly, yet another significant point which militates against the correctness of the time of occurrence is that according to the doctor, who performed the post‑mortem examination at 7‑50 a.m. on 11‑10‑1965, the tinge between the death and post‑mortem was 18 hours, Instead of giving an approximate idea or a rough estimate of this duration, the doctor has been rather precise and positive in this regard. Counting back this would bring the time of occurrence to 2‑00 p.m. which also fits in with and explains the presence of undigested food in the stomach of the deceased. Lastly, a reference may also be made to the presence of charring on the fire‑arm injury below the left eye of the deceased which would indicate firing from almost a point blank range which is also somewhat at variance with the case of the prosecution.

17. Thus the over all picture as it finally emerges from a critical analysis of the testimony of the two eye‑witnesses is that it bristles with a host of doubtful circumstances, and leaves a large number of questions unanswered. No wonder, therefore, that the testimony did not satisfy the judicial conscience of the learned Judges who had rightly found the accused entitled to benefit of doubt. In the ultimate analysis, therefore, the possibility of an alternative version not inconsistent with the absence of the eye‑witnesses from the spot and their subsequent arrival cannot be ruled out.

18. Towards conclusion, it may be observed that the facts of this case are strikingly similar to those of Noora's case wherein the prosecution version was sought to be supported by the testimony of three eye‑witnesses but the conviction was principally based upon that of only one. While criticising the view taken by the High Court regarding the credibility of this witness, it was observed by my Lord the Chief Justice of Pakistan as follows:- "This was clearly a departure from the cardinal principle that not only evidence going in favour of the prosecution should be taken into consideration but also that which went in favour of the accused. Material brought on the record by the defence to show that Ali Mochi was not free from the influence of the family of the deceased should not have been ignored. If all this material had been taken into account it would have become apparent that the evidence in the case was neither in quality or quantity adequate to support a convic tion." This observation is fully attracted to the instant case and applies with full force to the facts and circumstances.

19. In view of the foregoing discussion, in my humble opinion, no fault could be found with the appraisal of evidence by the learned Judges of the High Court, the process of reasoning adopted by them and the conclu sions arrived at as a result thereof.'" The appeal should, therefore, fail and 1 hereby dismiss the same. SALAHUDDIN AHMED, J. ‑I have had the advantage of perusing the judg ment proposed to be delivered by my learned brother, Muhammad Afzal Cheema, J., and I regret to say that I am unable to agree with it. The appeal is by special leave of this Court, and leave was granted to consider: (i) Whether the High Court in rejecting the evidence of the eye‑witnesses has disregarded the principles which should guide a Court of appeal in dealing with an appeal under the provisions‑ of section 417 of the, Code :of Criminal Procedure; and (ii) Whether the features of doubt affecting the evidence were formulated by the High Court in a manner consistent with right reasons. The facts of the case have already been sufficiently set out in the judg ment of my learned brother, and it is not necessary to reiterate them here. So far as I am concerned, suffice it to say that the incident in which Muhammad Shah was killed took place on the 10th of October 1965, at 4‑30 p.m. in the Abadi of Kot Ismailzai, and a first information report was promptly lodged at the Police Station Shahbaz Garh, three miles away from the place of occurrence, on the same day at 6 p.m. by P. W. 5 Sheerin Said, whose sister was married to the deceased. Both the eye‑witnesses were named in the first information report. Two persons, namely, respondent Sadeequllah, and his son Haroon were implicated in the first information report for being responsible for the death of Muhammad Shah deceased. The former surrendered before the police on the 31st of August, 1966 while the latter has still remained absconding. The incident having taken place at day time in the middle of village Abadi was not likely to have gone un-witnessed. The accused persons are closely related to the deceased. The prosecution case rests upon the evidence of two eye‑witnesses, namely, P. W. 5 Sheerin Said and P. W. 6 Sahibzada, as corroborated by the existence of a strong motive and the medical evidence. Although both these witnesses had been relied on by the trial Court, they were disbelieved by the learned Judges of the High Court on the grounds that the presence of P. W. Sheerin Said at the place of occurrence was doubt ful, and that the evidence of P. W. Sahibzada that he was in the company of the deceased at the time of occurrence could not be relied on implicitly. The learned Judges of the High Court also disbelieved the prosecution case for two other reasons, namely, that the medical evidence was inconsistent with the prosecution case that only two shots had been fired. It was stated in this connection that P.W. 1 Dr. Muhammad Ghafoor stated in his evidence that the injuries found on the person of the deceased were the result of three minimum shots or in number more than three. The other reason was that the presence of undigested food in the stomach of the deceased did not fit in with the time of the occurrence as given by the prosecution, namely, 4‑30 p.m. One of the recognized and widely applied principles governing the administration of criminal justice is that a witness is to be believed or dis believed on a reasonable ground. P.W. Sahibzada is a respectable person being a Lambardar. He lived only 200 paces away from the place of occurrence, and is. therefore, a natural and competent witness. According to P. W. Sheerin Said the Hujra of P.W. Sahibzada is only 8/10 paces away from the place of occurrence. He has given a plausible explanation why he was in the company of the deceased at the relevant time. He said he had come to Mardan to offer Fateha to Haji Qareebullah, and, therefore, he returned in the company of the deceased up to the latter's Hujra when the occurrence took place. He was not asked why he bad accompanied the deceased up to his Hujra. In his cross‑examination the witness stated: "one Abdul Ali was a first cousin of Muhammad Shah deceased. My sister is married to Abdul Ali and she is alive. Abdul Ali is dead. Abdul Ali has children from my sister. They are alive." In such cir cumstances the witness's statement in examination‑in‑chief that he has got no relation whatsoever with the deceased did not materially affect his evidence, In any event, I do not think the relationship of the witness with the deceased was so close as to make him an interested witness. Besides, there is not an iota of suggestion to the witness that he has any reason to be inimical to the respondent. On the contrary he has categorically stated that he has got no enmity with the accused party. Furthermore, he has stated that the deceased and the accused were Syed by caste while the witness was a Pathan. His presence at the place of occurrence at the relevant time has not been challenged categorically. P. W. Sahibzada stated that after the occurrence many people were attracted to the spot and that Said Abdul had come to the place of occurrence. The name of Said Abdul, however, does not appear in the witness's statement before the police or in the first information report and he was accordingly abandoned by the learned Public Prosecutor. There is hardly any material discrepancy in his evidence. In my opinion P.W. Sahibzada is not an interested witness, having no motive to falsely implicate the respondent. The conviction of the respondent could be based on his evidence alone. But as it will be seen presently his evidence is corroborated by certain circumstances in the case. (Vide (1962) 2 PSCR 140). Similarly, there is another principle now well settled by this Court that a witness is not to be disbelieved merely because he is in some way or another related to or interested in the deceased. A rule of caution in regard to the appraisal of such a witness in certain cases is that there should be some corroboration of his evidence by an independent witness or from anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. Vide (1962) 2 PSCR 140 and (1964) 2 PSCR

10. P. W. Sheerin Said also appears to be a natural and competent witness in that his house is only about two furlongs away from Kot Ismailzai where the occurrence took place. He is also a Pathan but his sister was married to the deceased, a Syed. He has given a reasonable explanation as to why at the relevant time he was present near the place of occurrence. The explanation is that he went there to hire a rehra for carrying fuel wood from his well (REHAT). Although Rehra was available in Garhi Daulatzai he came to Kot Ismailzai because he expected to get some concession from the Rehrawala as they were known to him and as there were many Rehras easily available in Kot Ismailzai. He said that his house was equidistant from Kot Ismailzai and from his well. He was, therefore, not a chance witness. No suggestion has been put to him of the existence of any reason for him to falsely impli cate the respondent. He is a school teacher and his school on the day of occurrence. namely, Sunday the 10th of October 1965, was closed at 12 noon. But from December 1965, at the direction of the District Inspector of Schools, the school was kept open even on Sunday for full day, i.e., till 2‑30 p.m. He stated that on reaching near the Hujra of Muhammad Shah deceased, which was jointly owned by the accused he saw Sadeequllah and Haroon accused absconder sitting on different Charpais in the courtyard of the Hujra armed with S.B. shot guns. He proceeded to say that he went to the house of the deceased in connection with his private business. He was not asked about the nature of the private business. Being a close relation of the deceased it was not unlikely that he might have some such business which could be combined with his search for a Rehra at a cheaper rate. It may be men tioned here that in the first information report, complainant P.W. Sheereen Said merely said that the two accused got up from the cot on seeing the deceased, and did not say whether the accused were sitting on one cot or on two separate cots. The witness was not confronted with his statement in the first information report on this point. I do not find anything in the evidence of this witness which brings his conduct in conflict with the ordinary course of the human conduct. The two witnesses could not obviously intervene or save the deceased, because the two accused had fire‑arms with them and the attack was sudden and unexpected. Nothing having happened immediately before he was shot, the deceased did not expect the assault by the accused persons. Going about with fire‑arms in that part of the country is a normal course of conduct, and by itself was no cause for alarm, particularly when the deceased and the accused were closely related. Firing of shots had already attracted people to the spot and there was no need for raising any alarm by the witnesses. Both these witnesses have been amply corroborated by the strong motive which the accused‑respondent had in killing the deceased. The motive as mentioned in the first information report was a dispute over the distribution of property between the accused party and the deceased. It was not expected that details of this should be given in the first information report. In his evidence, however, P. W. Sheerin Said has given the details and said that "the motive for the offence is that about 5/6 years prior to the occurrence, Syed Fazal Shah father of Muhammad Shah deceased gifted away his entire property to his son Muhammad Shah deceased. Fazal Shah deprived his two daughters including the wife of Sadeequllah accused of his property. Muhammad Shah deceased had his only daughter, Mst. Memoona. Sadeequllah accused wanted her hand for his son Haroon, absconding accused, to which the deceased did not agree". However, one other motive as mentioned by the witness was that Lal Muhammad, a tenant of the deceased, had been murdered three years prior to the occurrence in which absconding accused Haroon was implicated and Muhammad Shah deceased appeared as a witness against Haroon and he had been convicted and sentenced to three years' rigorous imprisonment. Exh. L.C. a copy of the mutation of gift has been put in on behalf of the respondent, and it shows that Mst. Zainab and Mst. Fatima wife of Sadeequllah respondent had executed it in favour of their brother Muhammad Shah deceased. If nothing had been left in favour of the sisters of the deceased, the gift appears to be meaningless. However, there may be some good ground for the execution of such a gift. One such reason may be that they being the sisters of the deceased the latter obtained the gift by way of precaution against any claim in future by the former or by the husband of Mst. Fatima, namely, the respondent. It is difficult, however, to enter into such speculative reasons. The medical evidence which has already been extensively quoted in the judgment of my learned brother shows charring present in injury No. 1 situated below the left eye. According to the evidence of P.W. Sheerin Said the first shot was fired by Haroon from a distance of 2/3 paces, and this hit the left side of the face of the deceased. There is hardly any discrepancy on the point of distance. That being so, there is no discrepancy between the medical evidence and the ocular evidence. Similarly, with regard to the presence of undigested food in the stomach of the deceased there is no evidence as to when actually the deceased had his last meal and no question was put on this point in the cross‑examination. That being so, I do not see any inconsistency between the medical evidence and the ocular evidence as regards the time of occurrence. Furthermore, according to the doctor the time between the death and post‑mortem was 18 hours. The post‑mortem was held on the 11th of October 1965, at 7‑50 a.m. According to strict arith metic the estimate given by the doctor exceeds by three hours the time of death of the deceased as given by the prosecution. It is only reasonable that the evidence of the doctor should not be construed so strictly and that some allowance should be made in regard to such evidence for he could not be exact on the time of death of the deceased. This will only be a reason able construction of the doctor's evidence. There remains the number of injuries with reference to the shots said to have been fired by the respondent and the co‑accused. The suddenness of the occurrence and the tense state of mind in which the witnesses were normally expected to be at the time, should be borne in mind while considering the evidence that two shots were fired. It is significant that although the prosecution had become aware of the number and nature of the injuries on the deceased in October 1965, the two witnesses never tried to improve their evidence. Their evidence is consistent on this point and this shows that they spoke what they had seen and heard. The mere fact that the doctor said that the injuries could be the result of three minimum shots or any number more than three, does not, in my opinion contradict the ocular evidence. The evidence of P. W. Sheerin Said: "Sadeequllah accused fired immediately another shot at the deceased who was hit on the hand and chest on the left side, while he was keeping his hand raised parallel to the chest", and that of P.W. Sahibzada: "When Sadeequllah accused was firing the second shot at the deceased, the deceased was keeping his hand raised in the level of his chest", may not unreasonably explain that injury No. 4 and injuries Nos. 5, 6 and 7 were the result of one shot. Injury No. 4 is a lacerated wound on the radial border of left wrist- joint and fore‑arm 4" x 3" causing fracture of radius and ulna. The doctor said that injury No. 4 was the result of a separate shot. Be that as it may, I do not think that the medical evidence falsifies the ocular evidence merely because the number of injuries might have been the result of three shots and not two shots as stated by the eye‑witnesses. On an analysis of the evidence of these two witnesses I find that they are both natural and competent witnesses; that although P.W. Sheerin Said is closely related to the deceased he has no enmity with the accused respondent. His evidence finds corroboration from the evidence of P. W. Sahibzada as well as the evidence of motive and the medical evidence. His evidence receives further corroboration from the fact that although the respondent was a close relation of the deceased he remained absconding, and surrendered about a year afterwards i.e., on the 31st of August 1966. Being a close relation of the deceased and having a common Hujra with him it was expected that he would be present at the funeral of the deceased or visit his house shortly thereafter for offering his condolences. To none of the witnesses there is any suggestion as to why he would falsely implicate the respondent. The presence of the two eye‑witnesses at the place of occurrence has hardly been challenged. In these circumstances to discard their evidence merely one the grounds of speculations or some inconsequential discrepancies will, in my opinion, be a clear disregard of the well recognized principles applicable to F safe administration of criminal justice. The evidence did not, in my opinion, furnish any reasonable basis for giving the benefit of doubt to the respondent. The learned Judges of the High Court were dealing with the appeal from conviction and they were, therefore, required to give due weight to the opinion of the trial Court while appraising the evidence. And if this had been done, and the recognized and accepted principles governing the appraise-meat of evidence applied, then it was not reasonable to discard the evidence of the two eye‑witnesses. Having carefully considered the facts and circum stances of the case I am of the opinion that the impugned order of acquittal not at all supportable on evidence. I think it appropriate to reproduce here in extenso the following observations of this Court in the case of Lalu v. State (1959) 1 P S C R 199: "This is the first case in which the necessity for setting aside an acquittal on a capital charge ordered by a High Court has arisen before this Court. We are conscious of the gravity of the proceeding. But having devoted our fullest care and consideration to the case in its entirety, we can see no reason whatsoever that can prevent us from doing what we clearly see to be our duty, namely, when a charge of a crime is found to be clearly established by evidence of the most patent reliabi lity, which remains entirely un-rebutted and is un-effected by any plea in defence, to record our judicial opinion that effect, where by an acquittal there has been a serious failure of justice, and to make a consequential order of conviction. 'To do so without giving due weight to the opinion of the High Court would be clearly improper and in the present case, we have been at pains to give the greatest possible weight to the considerations which had induced the learned Judges in the High Court to make the order by which they acquitted Hakim Ali, while at the same time convicting Lalu. We find, speaking with due respect, that those considerations are not founded upon anything appearing in the true facts of the case or upon any valid reason or logic. We have also given proper weight to two further considerations which always arise where the appeal is against an acquittal, namely, (1) that a presumption of innocence exists in favour of the accused which is certainly not weakened by the fact that he has been acquitted and, (2) that the accused has the right to the benefit of any doubt. And we may add, what is already suffi ciently apparent from this judgment, and is indeed fundamental to the exercise of appellate jurisdiction in cases involving the reception of direct evidence, that we have given proper weight and consideration to the views of the trial Judge as regards the credibility of the witnesses, bearing in mind the advantage which he enjoyed of seeing and bearing those witnesses." I have kept these observations in mind while arriving at my conclusions. I would accordingly allow the appeal and set aside the order of acquittal passed by the High Court and restore that of the trial Court convicting the respondent. So far as the sentence is concerned, it is to be borne in mind that a considerable time has elapsed since the date of the occurrence. Furthermore I have to keep in mind the principle of expectation of life which this Court has laid down in a number of cases. This principle is applicable to the facts of the case inasmuch as the respondent was acquitted by the High Court on the 17th of October 1967, and since then more than 7 years have elapsed‑ 1, therefore, think that instead of awarding the extreme penalty of death, a sentence of imprisonment of life will meet the ends of justice. I would, accordingly, convict the respondent under section 302 read with section 34 of the Pakistan Penal Code and sentence him thereunder to suffer imprisonment for life. The respondent's wife having been already deprived of the property of' her father, I do not think it appropriate to award any compensation to the heirs of the deceased. MUHAMMAD YAQOOB ALI, J.‑--I agree. In view of the opinion of the majority, the appeal is allowed the order of acquittal passed by the High Court is set aside and that of the trial Court convicting the respondent is restored. However, the sentence of death imposed on the respondent is converted into that of imprisonment for life. K. B. A. Appeal accepted.