P L D 1979 Supreme Court 934 (PLP)

KARAM ELAHEE CHAUHAN, J.‑The petitioner was tried by the learned Sessions Judge, Lahore, for an offence under section 302, P. P. C. for the murder of Nisar Ahmad but having been found that the case against him had not been established beyond a reasonable doubt, he was acquitted on 31‑1‑1969. The State filed an appeal being Criminal Appeal No. 672/1.969 against his acquittal under section 417, Cr. P. C. which was accepted by a learned Division Bench of the Lahore High Court by means of their judgment and order dated 3‑2‑1975, whereby they set aside the acquittal of the petitioner and holding him guilty under section 302, P. P. C. sentenced him to imprisonment for life and a fine of Rs. 2,000 or six months' R. I. in lieu thereof. The petitioner has come up in appeal against the same to this Court under Article 185(2?(a) of the Constitution.

2. The facts of the prosecution case are that a day prior to the occurrence there took place a quarrel between the deceased (Nisar Ahmad) (on the one side) and the petitioner and his brother Azim (on the other side) regarding the recovery of an amount of Rs. 100 which led to an exchange of abuses. The parties were separated by Nazeer Hussain (P. W. 6) and Muhammad Subhan (P. W. 7) but it is alleged that the petitioner and his brother Azim went away in anger after administrating a threat, that they would teach a lesson to Nisar Ahmad for his having ushered abuses on them. According to the prosecution, the next day, i.e. on I‑9‑1967 the deceased who was a student had gone to Islamia College, Railway Road, Lahore, in the morning but in his absence the petitioner went to his house and called him but he was told by Matloob Ahmad (P. W. 8) (a phoophizad of the deceased) 'and other lady members of the family) that he was not present yes the house and was further asked as to why had the petitioner called on him. The petitioner allegedly replied that he had come to teach him tire lesson of the last night's abuses. It is alleged that shortly thereafter at about 12‑30 afternoon Nisar Ahmad came on a cycle from his college. He kept the cycle at the shop of Abdul Rashid, tailor master (not produced) and started going towards his house when the petitioner who was already present there attacked him with a chhuri and gave him various blows on chest and left arm. Nisar Ahmad fell down on the spot whereas the petitioner made good his escape alongwith the weapon of offence. The occurrence was allegedly witnessed by Muhammad Khalil (P. W. 9) (brother of the deceased), Muhammad Hanif (P. W. 10) (son of a maternal uncle of the deceased), Muhammad Anwar (P. W. 11) (a real brother of the deceased), Babu Nawab Din (P. W. 12) and Abdul Rashid, tailor master (given up). The deceased was carried by Muhammad Khalil to the Mayo Hospital where he succumbed to his injuries and died. Muhammad Khalil (P. W. 9) made statement Exh. P/E before Shahbaz Khan, A. D. I. (P. W. 15) who was present in the Mayo Hospital whereupon a formal F. I. R. Exh. P/E was recorded in Police Station Gowalmandi, Lahore, at 1‑35 p.m. The accused was arrested the next day on 2‑9‑1967 and a pajama Exh. P/A which he was wearing at that time was taken over from his person vide memo Exh. P/A. On the same day he is alleged to have led to the recovery of a blood‑stained chhuri Exb. P/2 vide memo Exh. P. B/l. The petitioner in the committing Court pleaded to have injured the deceased in self‑defence, whereas, in the Sessions Court he pleaded complete denial. The learned Sessions Judge did not believe the recoveries because there was a great difference between the statement of the Investigating Officer and, the recovery witness regarding the same. The learned Sessions Judge did not consider the ocular evidence as to be of natural witnesses who could have been present on the spot because they were mostly hawkers or shopkeepers who on their own showing had left in connection with their business early in the morning and the plea of their having returned from distant places of their business just to take a lunch was not convincing. Babu Nawab Din who was not a relation of the deceased was however, found to be short‑sighted person who could hardly identify a person beyond a distance of 2/3 feet. The learned Sessions Judge also noticed various contradictions, discrepancies and improvements in the statements of the witnesses and held that in the circumstances it was not safe to rely on them. Giving the benefit of doubt to the accused, as already mentioned, he acquitted him.

3. The High Court, however, took the view that the witnesses could be relied upon inasmuch as their presence on the spot was in the circumstances of the case quite natural ; that though the recovery of the blood‑stained, chhuri was discarded by the High Court nevertheless recovery of the blood stained pajama which was allegedly taken over from the person of the accused was believed and was used as an incriminating circumstance against him. The High Court also made use of a part of the statement which the petitioner had made in the committing Court (where he had taken the plea of self‑defence) in support of the prosecution case that it was the petitioner who attacked the deceased. Similarly the High Court taking note of a portion of the statement in the Sessions Court where he had stated that "I have been falsely implicated in this case on account of suspicision. In fact I learnt that my brother Azim and the deceased had a quarrel and I told this to the police when I appeared before them", held that the petitioner indirectly admitted that there bad earlier taken place a quarrel between his brother Azim and deceased Nisar Ahmad. This factor was also used by the High Court in support of the prosecution case, as an immediate motive of the attack.

4. From what has been mentioned above it will be evident that the case against the petitioner consists of :‑ (a) the evidence of motive as deposed to by Nazeer Hussain (P. W. 6) and Muhammad Subban (P. W. 7) ; (b) the ocular evidence of Muhammad Khalil (P. W. 9), Muhammad Hanif (P. W. 10), Muhammad Anwar (P. W. 11 and Babu Nawab Din (P. W. 12) ; (c) the recovery of human blood‑stained pajama Exh. P/1 vide memo Exh. P/A ; and (d) the plea of self‑defence as was taken by the petitioner in the committing Court and the other plea that the petitioner had learnt that his brother Azini and Nisar Ahmad deceased had a quarrel a day earlier.

5. Before taking up each of the aforesaid items it is to be noticed that the petitioner had been acquitted by the learned Sessions Judge, and his case came up for examination by the High Court in the course of a state appeal under section 417, Cr. P. C. (Act V of 1898). The first question to be examined therefore is as to what was the scope of interference by the High Court in such an appeal. No doubt section 417, Cr. P. C. itself contains no fetters in that respect but Superior Courts have consistently laid down certain well‑defined and fundamental principles for regulating their A jurisdiction in the case of "acquittal appeals". In this behalf it will be instructive to reproduce a passage from Sheo Swarup and others v. King Emperor (A R 1934 P C 22) which reads as follows :‑ "It will be observed that upon the express terms of the Code (1) an appeal lies from any order of acquittal passed by any Court other than a High Court ; (2) such an appeal (the trial not being by jury) will lie upon a matter of fact ; (3) on such an appeal the Court may reverse the order of acquittal, find the accused guilty and pass sentence on him. There is no indication in the Code of any limitation or restriction on the High Court in the exercise of it powers as an appellate tribunal. Further, it is to be observed that no distinction is drawn as regards the powers of the High Court in dealing with an app.‑al, between an appeal from an order of acquittal and an appeal from a conviction. Many authorities were cited to their Lordships which undoubtedly reveal difference of views as to the powers of the High Court in dealing with an appeal from an order of acquittal on a matter of fact. No useful purpose will be served by examining this long list of decisions It will suffice if their Lordships state the conclusion which they have reached as the result of careful consideration of the full arguments which were addressed to them. There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately blundered, "or has" through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice", or as to produce a glaring miscarriage of justice, or has been tricked .by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as. (1) the views of the trial Judge as to the credibility of the witnesses ; (2) the presumption of innocence in favour of the accused, a presump tion certainly not weakened by the fact that he has been acquitted at his trial ; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." The aforesaid views and principles stand approved by this Court also in Abdul Majld v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan (P L D 1964 S C 422), Ghulam Muhammad v. Muhammad Sharif and another (P L D 1969 S C 398), Ahmad v. The Crown (P L D 1951 F C 107), Faizullah Khan v. The State (1972 S C M R 672), Qazl Rahman Gul v. The State (1970 S C M R 755), Gul Nawaz v. The State (1968 S C M R 1168 (2)), Khalid Salgol v. The State (P L D 1972 S C 495) and Abdur Rashid v. The State (1971 S C M R 521).

6. Now coming to the motive and the quarrel which is alleged to have taken place on the day prior to the date of occurrence between Billu petitioner, and his brother Azim on the one hand and Nisar deceased on the other hand, on the demand of the return of a loan amount of Rs. 100 which the deceased had allegedly borrowed from Azim, it may be mentioned that the relevant witnesses in this respect are Nazeer Hussain (P. W. 6) and Muhammad Subhan (P. W. 7). Nazeer Hussain (P. W. 6) has stated that Billu petitioner did not participate in that quarrel though he was present at that time. This shows that Billu had no direct quarrel with the decease and nor had he lent any money to him. Nazeer Hussain (P. W. 6) further stated that this quarrel took place at 8‑00 p.m. on 1‑9‑1967 and he narrated it to Muhammad Khalil (P. W. 9) the same night when that P. W. came after closing his shop to his house. He deposed that he had made mention of this quarrel in his committing Court statement and in his statement under section 161, Cr. P. C. but in those statements there is no such thing that B he had given any such information to Muhammad Khalil. Same is the position of Muhammad Subhan (P. W. 7) who deposed that he had mentioned this incident to Muhammad Khalil whereas in the committing Court he had deposed that "I never talked about this incident to Khalil brother of the deceased or any other person". He stated that he had deposed before the committing Court that Nazeer Hussain was also present at the time of that quarrel but his statement in committing Court does not contain any such thing. Similarly in his committing Court statement there is no mention of the so‑called threat of Azim for dealing with Nisar deceased later on. He deposed that Billu petitioner was standing at some distance though in committing Court he had stated that he was sitting on a tharra at a distance of 2 or 3 yards from the place of quarrel. In the committing Court he stated that the deceased was his nephew in the brotherhood and his eldest sister' daughter was married to the elder brother of the deceased (but later he denied this part of his deposition and had to be duly confronted with the same). In his denial of relationship he is further falsified by Matloob Ahmad (P. W. 8) (the deceased being his maternal uncle's son)‑who deposed that Muhammad Subhan (P. W. 7) is phoopa of Nisar deceased. It is also on record (page 15) that niece of Muhammad Subhan (P. W. 7) is wife of Muhammad Khalil (P. W. 9) (brother of the deceased). Similarly Nazeer Hussain (P. W. 6) has admitted that sister of Muhammad Subhan (P. W. 7) lived in the house where he lived. Even though Matloob Hussain (P. W. 8) stated that he had gone to the Hospital when the deceased was carried there but Muhammad Subhan (P. W. 7) deposed that he had not seen him there though in committing Court he had deposed that statement of Muhammad Subhan (P. W. 7) was recorded in Hospital at 2‑30 or 3‑00 p.m. There is no evidence that Muhammad Azim had advanced any loan to Nisar Ahmad and when and before whom. In these circumstances the prosecution case on this precise subject stands just in the vacuum. The High Court believed the story of this quarrel on that count simply from a portions of the statement of the petitioner under section 342, Cr. P. C. which reads as follows : Q. Why this case against you ? A. I have been falsely implicated in this case on account of suspicion, In fact I learnt that my brother Azim and the deceased had a quarrel, and I told this to the Police when I appeared before them. This answer nowhere indicates that the petitioner was present in any quarrel or that he administered any threat. Rather it was quite consistent with his case which was put by him while cross‑examining Shahbaz Khan. A. S. I. (P. W. 15). The relevant portion of the cross‑examination is as follows;

"I did not joint Azim Ullah brother of the accused in the investigation of this case. It is incorrect to suggest that Azim Ullah brother of the accused joined in the investigation of this case. It is incorrect to suggest that said Azim Ullah committed this murder and was marked present in WAPDA where he is employed and for that reason I did not join him in the investigation." The High Court observed that there was no indication anywhere on the record to suggest that the petitioner may have been substituted for some other assailant. The High Court seems to have omitted to read the above passage from the record or misread it and its view on the guilt of the petitioner due to the aforesaid misreading cannot be maintained. Similarly the view of the High Court that the statement of accused suggested that there must have been a previous quarrel between the petitioner and the deceased is again based on misreading. The petitioner was never involved in any such quarrel. 7. (a) Coming to the ocular evidence it consists of the statements of Muhammad Khalil (P. W. 9), Muhammad Hanif (P. W. 10), Muhammad Anwar (P. W. 11) and Babu Nawab Din (P. W. 12). Muhammad Khalil (P. W. 9) and Muhammad Anwar (P. W. 11) are brothers Inter se and are also brothers of the deceased. Muhammad Hanif (P. W. 10) is son of the maternal uncle of the deceased. Babu Nawab Din (P. W. 12) is not related but he admitted that he had a very weak eyesight and could not identify even the brothers of the deceased in Court and similarly was not able to identify them even when he appeared in committing Court. This defect in his eye he stated existed even at the time of occurrence. He stated that between the shop of Abdur Rashid, tailormaster and Takhat Posh there was intervening a shop of Sardar launQarywala; whose son Rafiq was present on the spot but that Rafiq has not been produced as a witness. He deposed that the accused raised no other lalkara except that he asked the deceased to stand up, whereas in the committing Court he bad stated in line with the other P. Ws. that the deceased had given the lalkara that he would not spare the deceased and would kill him. He did not go to the police station to make the report and stated that the police reached at the spot at 2‑00 or 2‑30 p.m. He admitted that he had good neighbourly relations with the deceased. The trial Court did not believe him as an eye‑witness on the ground of his having an extremely weak eyesight and being an obliging witness due to having neighbourly relations with the deceased and an abnormal conduct of not making any attempt to go to the police station to lodge the report. (b) As regards the other three witnesses they are closely related to the deceased and though an impression was sought to be given that the F. I. R. lodged by Muhammad Khalil was the first undiluted version of the case but it has come on the record that when he gave his statement in the Mayo Hospital (on which F. I. R. was framed) there were present with him Muhammad Anwar (P. W. 11), Matloob Ahmad (P. W. 8), Muhammad Hanif (P. W. 10) (page 30) and Muhammad Subhan (P. W. 7) and statements of all of them were recorded at that place. namely the Mayo Hospital. This is clear from the testimony of Muhammad Subhan (P. W. 7) on page 29‑30 and statement of Muhammad Hanif at page

36. To suggest therefore that the F. I. R was the first hand undiluted version of the occurrence is not correct F because the relatives of the deceased being present in the hospital they bad ample opportunity to consult one another so as to adopt a particular line of version, keeping in view of course, the injuries on the person of the deceased. (c) Muhammad Khalil (P. W. 9) has stated that Nisar deceased was a student of B. A. class in Islamia College, Lahore and was also an employee in the Telephone Department. He deposed that "on the 1st September, 1967, Nisar deceased went to his college and I went to my shop". 1‑9‑1967 was a Friday and it is well known that Islamia College observes and always observed Friday as a close day and therefore it is really doubtful whether the deceased had gone to the College. He deposed that at about 12‑15 mid‑day he came to his house for taking meals and that his brother Muhammad Anwar (P. W. 11) was also present there. He deposed that he had so stated before the police but he was confronted with his F. I. R. where no such thing existed. At another place he deposed that he did not remember whether Muhammad Anwar (P. W. 11) was present in his house. Similarly he stated that he had reported to the police that his mother and Matloob (P. W. 8) were narrating to Muhammad Anwar (P. W. 11) about the visit of the accused but again this fact is not contained in the F. I. R. He also deposed that he had stated in the F. I. R. that he and Muhammad Anwar (P. W. 11) came out of the house to find out Billu accused but he was confronter' with the F. I. R. where this fact did not exist. He deposed that he had mentioned in the report that he had come to his house for taking lunch but in the F. I. R. there was no mention of any lunch. Even though the prosecution case is that Nisar deceased left his cycle at the spot of Abdur Rashid tailor master but he had to concede that a cycle could go right upto their house from the shop of the said tailor master, which would indicate that in the natural course of events there was thus no reason to leave the cycle at that place. It may be mentioned that no cycle was recovered from the shop of the aforesaid Abdur Rashid and therefore the story of the deceased having come from the college and left the cycle at the shop of the tailor master does not stand supported from the record. He stated that Muhammad Anwar (P. W. 11) remained at the spot and did not accompany them to the Mayo Hospital as mentioned earlier. He is falsified on this point by the other evidence. In the committing Court he had deposed that he used to go to his shop between 7‑00 a.m. and 8‑30 a.m. and return to his house at about 9.10 p.m. though later he denied the aforesaid portion of his statement at the trial. Similarly he deposed that his brother had no fixed hours of business during the days of occurrence, and he usually left for his business at about 8‑30 a.m. and would return at evening time. In the circumstances a serious doubt has arisen in our mind as it arose in the mind of the learned trial Court as to why all these P. Ws. who in the ordinary course of their vocation would not come to their houses before night had in an unusual manner returned on this particular day at about 12‑30 midday. (d) Similar is the position of Muhammad Hanif (P. W. 10). He said he did not remember at what place he was sitting (whether in front or rear) of the tonga in which the deceased was taken to the hospital and who lifted the injured to put him in the tonga and who took him out of the tonga. He tried to give impression that he and Muhammad Anwar had remained on the spot till 2‑30 p.m. when the police arrived and had not gone to the Mayo Hospital but he conceded that he did not direct them to make any report at the police station, though on the other hand as we have already mentioned above all the aforesaid witnesses had gone to the hospital and their statements were recorded at that place. He also admitted that the accused after the occurrence ran in front of them and that they did) not try to capture him. To the same strain is the deposition of, Muhammad Anwar (P. W. 11) who in his cross‑examination admitted that he used to go to Shadara to sell cloth which clearly shows that he could not be at the spot on that day. Due to the aforesaid inherent material fallacies in their statements the learned Sessions Judge did not find it safe to rely on them. We find nothing wrong in the aforesaid approach of the trial Court which could have warranted interference by the High Court. (e) The High Court took the view that there could be nothing unnatural in the aforesaid P. Ws. having come back from their vocations or shops at mid‑day to take meals in their house. In this respect the High Court seems to have misread the record or omitted to read the record that the normal routine of the witnesses was to leave their) houses early in the morning and come later in the evening. In the circumstances it was for them to explain as to how on the fateful day they had come to take their meals which was not their routine practice. The record rather shows that in the very context their presence on the spot at that odd hour was unnatural and there was no special reason which could give support to their unnatural visit to their house at that particular time. Similarly the High Court was not justified in placing reliance on the evidence of Babu Nawab Din who on his own admission was so blind that he could not identify a person even from a distance of 2/3 feet.

8. Taking up the recovery of the blood‑stained pajama Exh. P. 1 which was taken off from the person of the petitioner when he was arrested on 2‑9‑1967 from outside Shahalami Gate near the Adda Azad Goods Transport (a very thickly populated locality)‑it may be mentioned that it was witnessed by Maulvi Abdus Salam (P. W. 5), Muhammad Jami1(not produced) and Muhammad Nazir, S. H. O. (P. W. 13). The statements of these two witnesses are quite at variance from one another. Abdus Salam (P. W. 5) deposed that the recovery was made at 12‑00 mid day whereas Muhammad Nazi (P. W. 13) stated that the accused were arrested at 4‑00 p. m. The recover memo Exh. P. A. recites that [Jiss per jabaja qatrahai khoon dekhay detain hain] whereas Abdus Salam (P. W. 5) deposed that there were stains of blood (only) at two places. (P. W. 5) also contradicted himself from his statement in the committing Court regarding the place of arrest recovery vis‑a‑vis it distance from the Circular Road. 1t is unthinkable that the accused who was resident of a distant colony of Nawankot (about 3/4 miles from the place of occurrence) and who had allegedly run away from the spot and who had hidden the weapon of offence chhuri at quite a distant place near Rattan Cinema on McLeod Road, would be loitering about near fountain of Shah Alam Market openly at mid‑day on the very next day of the occurrence carrying the hallmak of an incriminating nature on his person viz. the blood‑stained pajama, similarly their evidence shows that when he was stripped off his pajama on the road side he was provided with a Dhotl to wear. It was stated that the dhotl was procured by a Constable from some body but neither that Constable nor that some body was produced a witness. Both these witnesses were disbelieved by the two Courts below regarding recovery of the chhuri‑(which finding was not challenged before us by the State Counsel)‑and as such it was even otherwise not safe to rely on them qua the recovery of pajama unless their testimony in that respect was highly credible or supported by some other authentic evidence, which, however, is completely lacking on the subject. On the other hand as demonstrated above their testimony was rather most contradictory and in the very nature of things unnatural and discrepant. The High Court in the circumstances was not justified to upset the well‑considered finding of the learned Sessions Judge on this subject, which did not suffer from any defect in the appreciation of evidence, and to speak with respect rather the High Court fell into error in ignoring or omitting to note the aforesaid features of the case which were glaringly evident from the record. The finding of the High Court suffered from misreading and omission to note the relevant evidence on the subject and cannot be maintained.

9. As regards the plea of self‑defence raised by the petitioner in the committing Court we do not think that the same could on the facts not in the circumstances explained above be made the basis of finding the petitioner guilty. From the trend of the cross‑examination it appears that his case was that he had been roped in just in suspicion in place of his brother and not a single question was put by him to any witness regarding his plea of self‑defence which found mention merely in his statement under section 342 Cr. P. C. in the committing Court which would show that this was actually, not his case at any stage. Similarly there was no circumstance on the record to show any occasion of self‑defence. In these circumstance the High Court committed a legal error in basing the conviction of the petitioner on the aforesaid statement of the petitioner which he at once rescinded in the Court of Session. The entire evidence in the case thus being of doubtful character the gaps in the prosecution version could not be filled up by a portion of the statement of the petitioner in the committing Court which was disowned in the Court of Session.

10. The result is that the interference made by the High Court in the judgment and order of the learned Sessions Judge was not covered by the principles which are to apply in cases of acquittal appeals, as highlighted in paragraph 5 of this judgment above. The view of the High Court rather is based on omission or misreading of the evidence and violation of the well‑known principles for interfering in the matter of appreciation of evidence in cases of this type. The benefit of doubt due to the facts and the circumstances above‑mentioned was given to prosecution instead of the accused. The finding of the learned Sessions Judge that the case was not established beyond reasonable doubts and that there was no corroboration of the ocular evidence was fully borne out from the record and without resolving the doubts pointed out by the learned Sessions Judge or looking for corroboration the High Court acted with material illegality in holding that the case had been established, if we can so, despite those doubts.

11. The upshot of the above discussion is that this appeal is accepted, the judgment of the High Court is reversed and restoring the order of the learned Sessions Judge the conviction and the sentence of the petitioner are et aside. He should be released from custody forthwith if not required in any other case. S A. H. Appeal accepted