1968 P Cr (PLP)

4. The autopsy of the deceased revealed that he had sustained seven gunshot wounds, which were as follows:-- (1) A lacerated wound 6" x 5", with charred margins, with gun powder on the margins, cavity deep on upper part of right side of chest. (2) Four pellet wounds, each " circular with charred margins on the right knee-joint, capsule deep. (3) Four pellet wounds with upwards direction, on the medial side of right thigh, muscle deep, with charred margins. (4) Three abrasions, 1 " x " each, on the middle side of right thigh in the upper part with charred margins. (5) A lacerated wound, crushing the whole tip of the right index finger with charred margins. (6) A lacerated wound, x ", with charred margins on the base of thumb of right hand posteriorly. (7) A pellet entry wound, " circular, on the buttock of right side, with upward direction. Dr. M. A. Mueed, who noted the above injuries, was of the opinion that the injuries were the result of three shots, Nos. (1) to (6) being caused from a distance of within six feet, while the 7th from a long distance of snore than twelve feet. In our view the locations of the gunshot wounds sustained by the deceased suggested that probably two, shots in all were fired at him, but the number, in any case, could not have exceeded

3. We have adverted to this matter to meet the contention of the learned counsel for the petitioner that the learned trial Judge should not have discarded the evidence of the eye-witnesses which fitted exactly with the medical evidence regarding the number of shots fired. It seems to us that the medical evidence directly contradicts the eye-witnesses on the point, as each one of them deposed that six shots had been fired at the deceased, two while he was standing and the rest while he had fallen on the ground. The inference is clear. The petitioner Ghulam Haider had set out for the police station after seeing the dead body and he attempted to co-relate the number of shots with the number of injuries that he may have been on the deceased, without realising that some of the wounds which were in close proximity with each other may have been caused by a single shot.

5. The learned trial Judge has disbelieved the evidence of the eye-witnesses on what appears to us to be very cogent grounds. He has referred to the circumstance, which creates suspicion, about their credibility that it was not at all necessary for both Ghulamali and Manjhi to have gone after Mehrab to fetch him for transplantation. The explanation that Manjhi accompanied Ghulamali as an escort because the latter was in fear of his life from the respondents is most unconvincing. If Ghulamali deceased had any fear, he should have stayed back and Manjhi alone could have carried the errand. Again, the invitation to Mehrab to come for transplantation at noon time in the month of July is out of tune with the normal practice that such transplantations are generally done early in the morning and finished before noon. Mehrab, who was in joint cultivation of the land, should have been there by himself without the need for sending people after him to get him there. The eye witnesses are not the type of witnesses whose statements can be accepted without reservations. Yar Muhammad and Mehrab are related to the complainant. According to the deposition of P. W. Allah Wassaya, Yar Muhammad is a cousin of Ghulam Haider, while Ghulam Haider's uncle is married to a cousin of Mehrab. Yar Muhammad also appears to be a chance witness. Manjhi is a history-sheeter and a previous convict. He admitted that his own father had filed a hurt case against him and he was convicted and sentenced to seven years' imprisonment.

6. P. W. 4 Khamiso was produced as a corroborative witness who deposed that . he had seen the respondents armed with guns, running towards Nooro village after the murder and soon thereafter he saw Yar Muhammad, Manjhi and Mehrab sitting near the dead body of Ghulamali, who charged the respondents for the murder of Ghulamali. According to his version he had told them what he had himself seen, i.e. the fact of the four accused running towards their village with their guns. The name of this witness is not mentioned in the first information report and his evidence has been disbelieved by the trial Judge on that score. His statement by the Police was recorded, five days after the occurrence.

7. We feel that the suspicion that has assailed the mind of the learned Judge in regard to the prosecution version based' on the testimony of these witnesses is not without jurisdiction, and our own appraisement of this evidence has not freed us from that suspicion. The mere fact, however, that a contrary finding may he possible on that evidence regarding the guilt of the respondents would not furnish a valid ground for reversing the acquittal order and directing a re-trial. Interference in an acquittal order in revisional jurisdiction, essentially resting on, the discretion of the High Court, has its well-defined limita tions. Technically, the powers of the High Court in examining and reviewing the evidence of a finding of fact is unlimited, but as remarked by the. Federal Court in the case of Anwar and other v. The Crown (P L D 1955 F C 185), "the trial Court's view of the evidence the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a re-trial are all relevant factors to be duly weighed". While examining the appellate powers of the High Court in regard to an order of acquittal, the Privy Council had observed in the famous case of Sheo Swarup and others v. King-Emperor (A I R 1934 P C 227(2)), as follows:- "In exercising the power conferred by the Code and before reaching its conclusions upon facts, 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 presumption 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."

8. In this view of the matter, we feel that the order acquitting the respondents does not call for any interference and we, therefore, dismiss this revision. Petition dismissed.