P L D 2004 Supreme Court 371 (PLP)

M. Bilal, Senior Advocate Supreme Court for Respondent. Date of hearing: 29th January, 2004. ABDUL HAMEED DOGAR, J.‑‑‑By this appeal, the appellants have assailed the judgment dated 19‑2‑2003 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby Criminal Appeal No.60 of 1990 filed by State against their acquittal was accepted and they were convicted under section 302(b), P.P.C and sentenced to suffer imprisonment for life with fine of Rs.20,000 each as compensation under section 544‑A, Cr.P.C. .or in default to undergo further S.‑I for four months each with the direction that the amount of compensation, if recovered, be paid to the legal heirs of the deceased. However, benefit of section 382‑B, Cr.P.C. was also given to them.

2. The fateful episode in this case took place on 26‑7‑1988 at 12‑15 p.m. near the house of Mst. Janat Gul situated in `Deh Badin Khel', Karak. The matter was‑reported by complainant Khan Amir, father of the deceased, on the same day at 12‑45 p.m. at Police Station Sabir Abad wherein it was alleged that on the same day while complainant Khan Amir was going alongwith his son Zahir Nawaz deceased and Hakim Gul to his house from the house of Hakim Gul and when reached near the house of Janat Gul appellants alongwith the co‑accused Johar Gul appeared there. At the instigation of appellant Amal Sherin, all of them started firing with their respective Klashnikovs, as a result of which, Zahir Nawaz sustained injuries and fell down on the ground who subsequently succumbed to the injuries on the way while being shifted to police station.

3. The motive behind the occurrence was stated to be a dispute over a piece of land allegedly given to appellant Amal Sherin by complainant party.

4. Police recovered 14 empties of 7.62 bore, 14 empties of 7.62 bore, blood‑stained earth from the place of incident whereas 25 live cartridges of 7.62 bore were recovered from the house of appellant Amal Sherin which were taken into possession vide respective recovery memos. On 3‑11‑1998, appellants Amal Sherin and Zahir Gul were arrested after their application for bail before arrest was rejected.

5. On completion of investigation, appellants were sent up to face trial before the Court of learned Sessions Judge, Karak, whereas absconding accused Johar Gul was declared proclaimed offender.

6. Prosecution in order to prove its case examined eight witnesses in all.

7. The post‑mortem examination report was produced by P.W.4 Daraz as Dr. Abdur Rauf who conducted the autopsy on the dead body of the deceased had left for Iran.

8. Appellants in their respective statements' recorded under section 342, Cr.P.C denied the case of the prosecution and claimed innocence. Appellant Amal Sherin, however, stated that he had strained relations with his brother‑in‑law Hakim Gul as he was demanding the share of his wife from him but was not ready to give the same that is why he was involved in the case. They neither examined themselves oil oath as required under section 340(2), Cr.P.C nor led any evidence in defence.

9. On conclusion of trial, appellants were acquitted by the trial Court whereas perpetual warrants of arrest were issued against the absconding accused.

10. State, feeling dissatisfied, preferred appeal against the said judgment which was accepted by the learned High Court vide impugned judgment and appellants were convicted and sentenced as stated above.

11. We have heard Raja Muhammad Ibrahim Satti, learned counsel for the appellants and Mr. M. Bilal, learned counsel for the State and have gone through the record and the proceedings of the case in minute particulars.

12. Raja Muhammad Ibrahim Satti, learned counsel for the appellants mainly contended that the learned High Court has failed to appreciate the evidence on record in its true perspective. He maintained that ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested evidence, as such; it requires independent corroboration which is lacking in this case. The allegation that appellants and absconding accused fired at deceased Zahir Nawaz from their respective weapons is in conflict with post‑mortem report, according to which, the deceased has sustained only one entry wound. Whose fire hit the deceased was not ascertainable, therefore, reasonable possibility could not be excluded that it was only one culprit who participated in the commission of the offence. He further emphasized that the trial Court has rightly discarded the evidence of eye‑witnesses finding the same not only interested but highly inimical also and that it was not corroborated by any independent evidence. Even motive was not proved and simple ascension for a period of three months cannot be made basis for the conviction. According to him, the learned High Court while converting the finding of acquittal into conviction has ignored the well‑settled principle of law emanated by the superior Courts which governs the appeal against the acquittal and the appeal against conviction. In the case of appeal against the acquittal, the superior Courts ordinarily do not interfere but instead give due weight and consideration to the findings of the Court acquitting the accused.

13. On the other hand, learned counsel for the State controverted the above contentions and argued that the trial Court has illegally extended benefit of doubt to the appellants. The testimony of P.Ws. Khan Amir and Hakim Gul brought on record is irrefutable. Their testimony cannot be discarded merely on the ground that they were related inter se and interested without proving that they in face deposed against them with a particular motive. The ocular version furnished by them is not only worthy of credence but is also corroborated by the medical and other circumstantial evidence such as motive, recovery of empties from the spot and absconcion. According to him, the reasons for acquittal which prevailed with the trial Court are speculative and artificial in nature and cannot be sustained in law.

14. It is well‑settled by now that the superior Courts while dealing with the appeal against acquittal interfere only in such cases where the judgment of acquittal is based on misreading, non‑appraisal of evidence or is speculative, artificial, arbitrary and foolish on its face. On having a glance on the said judgment in the light of the above perspective, we are of the considered opinion that the same is not maintainable in law and is based on wrong speculations. The trial Court was not justified to reject eye‑witness account furnished by complainant Khan Amir P.W. and Hakim Gul P.W. merely on the ground of being related and interested particularly when appellants had not been able to establish on record that the above mentioned witnesses had nourished any grudge or ill‑will against them and deposed with a specific motive. On this aspect, reliance can be made on the case of Saeed Akhtar and others v. The State (2000 SCMR 383) wherein this Court has held that mere relationship of the witnesses with the deceased would not detract from their veracity who had absolutely no motive of their own to involve the accused. The learned High Court while reversing the judgment of trial Court hat advanced cogent reasons by believing the eye‑witness account furnishes by complainant Khan Amir and P.W. Hakim Gul being truthful, trustworthy in nature and corroborated by circumstantial evidence such as medical, recovery from the spot and absconcion. Conviction in criminal case can be recorded even on the statement of the eye‑witnesses alone without there being any corroboration provided their evidence inspires confidence.

15. The appellants in their statements recorded under section 342, Cr.P.C. have partly admitted the motive by stating that appellant Amal Sherin being brother‑in‑law of complainant had demanded the share of his wife from him which was denied.

16. From the above resume, we are of the considered opinion that the findings of the acquittal recorded by the trial Court are not supported by evidence on record and in fact is based on, gross misreading and misconstruction of evidence and is also speculative and artificial in nature. This: Court in the case of Muhammad Ali v. Muhammad Yaqoob and 3 others (1998 SCMR 1814) has reiterated the above principle in unequivocal terms that the findings of acquittal is not sacrosanct if the reasons given are of speculative or artificial nature or the findings are based on no evidence or on misreading or misinterpretation of evidence, or the conclusions drawn as to the guilt or innocence of the accused are perverse resulting into miscarriage of justice.

17. For the reasons stated above, we do not find any justification to interfere with the impugned judgment which is accordingly maintained. Resultantly, appeal being devoid of force is dismissed. N.H.Q./A‑18/S Appeal dismissed.