P L D 1973 Supreme Court 469 (PLP)

But before considering the results, it is right that they should state what they conceive to be in a case such as that before them, the character of the limitation of their fur coon. The Constitution of the Empire is tending to develop n the direction of regarding as final, decisions given in the local administration of criminal justice. The general principle is established that the Sovereign in Council does not act, in the exercise of preroga tive 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." It is unnecessary to cite the other subsequent cases in which the dictum of Viscount Haldane has in one or the other form boon reiterated except to point out that in 1947 again in the cape of Smt. Bibbabati Devi v. Romendra Narayan Roy (AIR 1947 PC 19) the Board itself felt the necessity of pointing out that the rule was not inflexible or of universal application and to indicate, as a caution to the Courts in India, some of the circumstances in which it might well do so in these words t‑ "From this review of the decisions of the Board, their Lordships are of opinion that the following propositions may be derived as to the present practice of the Board and the nature of the special circumstances which will justify a departure from the practice (1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board. (2) That it applies to the concurrent findings of fact of two Courts and not to concurrent findings of the Judges who compose such Courts. There fore a dissent by a member of the appellate Court does not obviate the practice. (3) That a difference in the reasons, which bring the Judges to the same finding of fact, will not obviate the practice. (4) That, in order to obviate the practice there must be some miscarriage of justice or violation of some principle of law op procedure. That miscarriage of justice means such a departure from the rules, which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding is such a question of law. (5) That the question of admissibility of evidence is a pro position of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice. (6) That the practice is not a cast iron one and the foregoing statement as to reasons that will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice. (7) That the Board will always be reluctant to depart from the practice in cases, which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the Courts of that country. (8) That the practice relates to the findings of the Courts below, which are generally stated in the order of the Court but may be stated as findings on the issues before the Court in the judgments, provided that they are directly related to the final decision of the Court." Thus from the above review of the decisions it transpires that though the Board's arms were not tied down by any law it was as a matter of practice reluctant to interfere in con. Sequence not only of the extraordinary nature of the prerogative jurisdiction itself but also of the growing tendency to give finality to the decisions of the superior Courts in the Colonies and India. The practice was not, however, a cast iron one, for, there may well occur cases of such an unusual nature as might constrain the Board to depart from the practice. The Board was as such always careful to add qualifying words e.g. "as a general rule", "ordinarily" or "generally" to indicate that even this rule of practice could in a fit case be departed from. Another significant fact which has emerged from the above examination is that whenever the Board granted leave to appeal it did examine the evidence in order not only to satisfy itself that no grave miscarriage of justice had been committed but also to make certain that the findings were proper and had been arrived at according to legal principles. Let me now examine the practice of the Federal Court. This Court, it has to be remembered, was set up under the Government of India Act of 1935 and subsections (PLD 1951 FC 41) and (PLD 1952 FC 108) of section 205 thereof gave it the following appellate jurisdic tion :‑ "(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly. (2) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate bad been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave." But section 208 preserved the prerogative jurisdiction of His Majesty in Council to hear appeals from a decision of the Federal Court in the case of a question relating to the inter pretation of the Constitution or any Order in Council made thereunder without any leave and in all other cases by leave of the Federal Court or His Majesty in Council. It will thus be seen that the only new jurisdiction given to the Federal Court was that of constitutional interpretation. In other matters an appeal lay to the same extent and under the same conditions as an appeal lay to the Privy Council. After the establishment of Pakistan, however, the jurisdiction of the Federal Court was enlarged by the Federal Court (Enlargement of Jurisdiction) Act, 1949, which gave the Federal Court of Pakistan the right to entertain and bear appeals from judgments, orders and decrees of the High Court without special leave in the same circumstances as an appeal could be entertained without special leave under the provisions of the Code of Civil Procedure by the Privy Council and with special leave in any other case. Direct appeals to the Privy Council were abolished by this Act. The process of transference of jurisdiction was, however, completed by the Privy Council (Abolition of Jurisdiction) Act, 1950, whereby the jurisdiction of the Privy Council was to cease to exist so far as it concerned cases from territories then constituting Pakistan and all pending appeals from such territories stood transferred to the Federal Court of Pakistan except those in which the Privy Council bad already delivered its judgment or reserved judgment of those which had been listed for hearing daring the Easter sittings of the year 1950. It will thus be observed that the jurisdiction of the Federal Court was the same as the jurisdiction of the Privy Council in non‑Constitutional matters and only in the latter category of cases could it act as a Constitutional Court of Appeal. It is not surprising, therefore, that it should also have adopted the Privy Council practice which it examined in some detail in the case of Sarfraz Ali Khan v. Crown (PLD 1951 FC 41) and came to the follow ing conclusion; ‑ "That this Court is not a Court of criminal appeal as the Judicial Committee was not, is as true today as it had been ever since the Board had started to function . . . . . . . The passing of the Independence Act in 1947 has made no difference whatever, for the Constituent Assembly has, in its wisdom, chosen to confer only such powers on this Court as had been possessed by the Judicial Committee of the Privy Council before the 1st of May 1950, and no further. It is possible to conceive as an abstract proposition that larger powers could have been conferred by the Constituent Assembly of Pakistan on this Court or on any other tribunal, and not only could the Judicial Committee Act of 1833 be superseded but it could have been provided that the voluntary limitations imposed by their Lordships of the Privy Council on themselves in disposing of petitions for special leave in criminal appeals, of which they must be presumed to be aware, should not be observed by this tribunal in adjudicating on Pakistan appeals and petitions. This was, however, not done and in the absence of any such legislation we cannot but hold that the constitutional reasons although of a different type, still hold the field. For the above reasons, we are of the view that the rules of practice adopted by their Lord ships of the Judicial Committee in granting or refusing special leave to appeal in criminal cases has correctly been and should ordinarily be applied by this Court." Again, in the case of Dilawar v. Crown (PLD 1955 FC 378), Muhammad Munir, J. (as he then was) enumerated the circumstances in which the Court would interfere thus: ‑ "The cases in which the Privy Council expressed its readiness to interfere, and where on the principle of Sarfraz Ali Khan's case we would interfere, fall into two distinct categories: (1) Where some irregularity has occurred in the trial; and (2) Where a manifestly mistaken view of the evidence has been taken." Then he went on to consider in detail the precise nature of the cases which would fall in these two categories but again, like the Privy Council, added the following caution :‑ "Of course the cases just enumerated are not exhaustive of the instances where a petition for special leave would be entertained and there may be many another reason for this Court's attention and interference which it is not possible to formulate with precision beyond this that the decision complain ed of must involve a contravention of some general principle of law and resultant injustice." It may also be pointed out that in this very judgment, Munir. J. also accepted that one of the tests for judging as to whether a case came within the ambit of the categories in which the Federal Court would interfere was "that no reasonable man could possibly approve of it". Next, in point of time, comes the decision in the case of Muhammad Sarfraz Khan v. The Crown (PLD 1953 FC 317) where the Court unanimously, after reiterating that "the Court does not function in a free fashion of a fully constituted Court of criminal appeal", entered upon an exhaustive examination of the evidence and "on a consideration of the entire evidence" reached the conclusion that "there was no reliable evidence in the case on which a finding of guilty" could have been founded. In effect, therefore, the Court did review the evidence and came to the conclusion that the "varying evidence", in the case, did raise "a reasonable doubt regarding the guilt" of the appellant before the Court to respect of the offences charged. The views of the Federal Court were well summarized by Cornelius, J. (as he then was) in the case of Khuda Bakhsh v. The Corwn (PLD 1955 FC 378), where he observed :‑ "It is desirable that we should repeat that this Court does not sit as a Court of criminal appeal, and it is a matter of deep concern to us, as well as to the system of administration of criminal justice in the country, that we should not allow ourselves to be converted into a Court of appeal. While on the one hand, we possess the power which until 1950 was exercised by His Majesty, acting on the advice of Privy Council, to review any and all proceedings of a criminal nature, we have, on the other, consistently followed in this respect, certain principles laid down in a series of authorities by the Privy Council, which restrict our interference to cases of the most serious nature, involving what may be described compendiously as substantial and grave injustice, consequent upon the disregard of the forms of legal process, or violation of principles of natural justice." Up to this stage, there can be no doubt that the ultimate Court in this Country did consistently maintain that it was not an ordinary Court of criminal appeal, and that since. it was exercising the juri3diction of the Privy Council, it would follow the same salutary principles as had been laid down by the Privy Council in the matter of criminal appeals. In 1956, when Pakistan shed its Dominion status and became a Republic, its Constitution set up a Supreme Court for the Country and by Article 159 gave it the following appellate jurisdiction in criminal matters:‑ "An appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings, if the High Court‑ (a) Has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life; or (b) Has withdrawn for trial before itself any case from any Court subordinate to its authority, and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) Certifies that the case is a fit one for appeal to the Supreme Court; or (d) Has imposed any punishment on any person for con tempt of the High Court: Provided that where a certificate is issued under paragraph (c) of this Article an appeal shall lie subject to such rules as may be made in that behalf under paragraph 3 of the Third Schedule and to such other rules, not inconsistent with the aforesaid rules, as may be made in that behalf by the High Court." In addition to this, it also gave to the Supreme Court by Article 160 power to grant special leave to appeal in other cases not covered by Article

159. From this day onwards, it is suggested, the Supreme Court did become an appellate Court even in criminal matters and) there eras no longer any analogy between ft and the Privy Council or the Federal Court. It was the highest Court at the apex of the judicial system in the Country and it was armed with all the powers of a Court of Appeal without any limitations whatsoever. Therefore, the decisions of the Privy Council or the Federal Court circumscribing their own jurisdiction by self-imposed restrictions necessitated both by the extraordinary nature of the jurisdiction exercised by the Privy Council and the special circumstances under which it functioned hearing appeals from distant lands inhabited by different types of people, no longer had any relevance in the context of its jurisdiction as a Constitutional Court of Appeal functioning within the Country at the apex of its judicial system. Although the Constitution of 1962 did do away with appeal as of right in civil matters as also eliminated certificated appeals in criminal matters under clause (c) of Article 159 of the Constitution of 1956 it did not affect the rest of the criminal jurisdiction of the Court or its power to grant leave to appeal. The jurisdiction conferred on the Court by Article 58 in 1962 was as follows :‑ "58.‑(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court. (2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where‑ (a) The High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution; (b) The High Court has sentenced a person to death or to transportation for life; or (c) The High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal. " The position under the Interim Constitution of 1972 is much the same. The question that I have now to examine is as to whether the Supreme Court did also recognise the change to its status and in the nature and content of its powers and react, accordingly, or did it continue to function in the same manner as the Privy Council and the Federal Court. It appears that although the Supreme Court did also from time to time emphasis that it was not an "ordinary Court of criminal appeal", yet, in practice, at any rate, in cases in which it had granted special leave to appeal, it did review the evidence and often interfered by setting aside the findings of fact arrived at by the Courts below. Thus, even in the year 1956, a definite tendency towards shedding the restrictions imposed by the Privy Council and the Federal Court began to be noticed and in the case of Munawar Ahmad v. The State (P L D 1956 S C), this Court, after examination of the evidence with the assistance of the State Counsel, actually discovered serious discrepancies in the evidence bearing on the question of motive and interfered on the ground that these discre pancies had not received "necessary treatment" in the judgment of the High Court. It justified its action in these words:‑ "The reason for so close an examination of the evidence on these points is that they have not received the necessary treatment in the judgment of the Court below. The evidence of Nizam Din on the point of the demand is clearly of a shaky character, and this is emphasized indeed by firstly the clear evidence, supported by documents, given by Ghulam Muhammad contractor as D. W. 1 and by very marked uncertainty on Nizam Din's part regarding payment for the cigarettes. In a short state ment, he gave three separate versions on this point in the state of the evidence; there is more than enough room for reasonable doubt that any official act was involved, the doing or not doing of which depended upon the furnishing of cigarettes to the Ahlmad. " The appeal was, on the Court's own examination of the evidence, allowed and the appellant acquitted, even though the grounds upon which the acquittal was based did not come strictly within the principles earlier enunciated by Munir, J. in the case of Dilawar v. Crown. The very next year, in the case of Hayat v. The State (P L D 1957 S C (Pak.) 207), Muhammad Munir, C. J. himself granted leave to appeal in order to consider the question whether the ocular evidence against him (the appellant) could have been rightly accepted. Then, in the case of Kazi Abdul Jamil v. The State (P L D 1958 S C (Pak.) 12) leave was granted, because of the "very unsatisfactory nature of the judgment recorded in the High Court" and, because, a number of conclusions reached by the High Court on important points seemed "to lack the support of sound reason". In this case too the Supreme Court did‑re‑examine the evidence in a criminal matter justifying its action for the following reasons :‑ "In this case it has been necessary for this Court to re examine the evidence in the light of all the proved circum stances in order that justice should be duly administered. It is the function of the High Court to arrive at findings of fact upon the evidence, and this Court, as a rule, refrains from interfering with such findings, unless in very exceptional cases, which it is not necessary to categories here. Our inter ference with the findings reached upon the evidence by the High Court in the present case has been necessary because in assessing that evidence the learned Judges in the High Court did not approach the case from the proper angle, and this has resulted it their reaching conclusions without giving the degree of consideration to the pleas taken in defence which those pleas clearly deserved. Unless the evidence in a case is assessed on the foundation of a clear understanding of all the circumstances as they appear, and with a full appreciation of the nature of the pleas advanced by the defence, there can be no safety in the dispensation of justice." Again, in the case of Feroz Khan v. The State (P L D 1960 S C 344) the Court granted leave to re‑examine the whole evidence in relation to the plea of self‑defence raised by the accused, did so re examine the evidence and allowed the appeal of two out of the three appellants before it. In the following year, in the case of Sikandar v. The State (P L D 1963 S C 17), the Supreme Court actually interfered, because, in its view, the High Court had ignored the principle that the benefit of every doubt must go to the accused 1 and in the case of Sultan Khan v. Taj Din (P L D 1963 S C 97) leave was actually granted "to examine the case afresh in view of certain features appearing from the evidence". The evidence was examined at length and "after carefully considering the whole evidence on record" the Court came to the conclusion that the acquittal of as many as three of the respondents was "manifestly against the weight of evidence" and had resulted in a miscarriage of justice. In the case of Siraj Din v. Kala (P L D 1964 S C 26), In an appeal against acquittal, full examination of evidence was allowed and the evidence thoroughly reappraised, because, the Court felt that in a case of this nature the Supreme Court should be "satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction of the offence charged" Again, in the same year, in the case of Afsar Khan v. The State (P L D 1964 S C 205), leave to appeal was granted "to re‑examine the whole evidence" in order to check "the correctness of the view taken by the High Court", the evidence was re‑examined and the appeal of two of the appellants was allowed. Similarly in the case of Syed Riaz Haider Zaidi v. The State (P L D 1965 S C 179) leave was granted to re‑examine the evidence to see "if chances of false implication have been adequately exclude". In the case of Ghulam Haider v. The State (PLD1965SC196) Cornelius, C. J. actually went through the entire record and re‑assessed the evidence, because, the High Court had not a examined the same with regard to the manner in which the clash came about between the two rival parties, who had come prepared for a fight. After such exhaustive re‑assessment of the evidence, he came to the conclusion that the High Court had wrongly applied the provisions of section 149 of the Pakistan Penal Code in the facts and circumstances of this case and failed to give "proper weight to the evidence regarding the injuries suffered by each side". Even my learned brother, Yaqub Ali, J., has himself been a party to a number of decisions in which the evidence has been reviewed at large. Thus, in the case of Sardar Ali v. The State (PLD1967SC217), leave was actually granted "on certain considera tions arising out of the assessment of the evidence in the Courts below, for the purpose of re‑examining the relevant evidence". The evidence was re‑examined and then "after full examination of the relevant evidence" the appeal was dismissed. In Alim v. The State (P L D 1967 S C 307), leave was granted as it appeared from the record that "each piece of evidence against the accused is affected by a measure of doubt". The entire record was examined and the Court came to the conclusion that it was "unsafe for the trial Judge to place full reliance only on the committing Court statements of three eye‑witnesses". The appeal was, accordingly, allowed. There are several other decisions too in the same volume reported as, Mumtaz Ahmad Khan v. The State (P L D 1967 S C 326), Muhammad Ilyas v. The State (P L D 1967 S C 443) and Muhammad Hanif v. The State (P L D 1967 S C 451) where leave was granted to consider the evidence on the record, and in the last mention4d case, the Court, after considering the entire evidence, came to the conclusion, disagreeing with the Courts below, that the whole prosecution case was "streaked with falsehood" Similarly, in the case of Bhai Khan v. The State (P L D 1969 S C 101), leave was granted to re‑examine the entire evidence, and after doing so, many learned brother, Yaqub Ali, J., himself wrote the leading judgment, finding that the Courts below had wrongly disbelieved the testimony of some witnesses and set aside the convictions and sentences of some of the appellants. It is interesting to note that in the case of Shakirullah v. The State (1968 S C M R 1210), my learned brother, Yaqub Ali, J., himself granted leave to re‑examine the evidence, because, he felt that "the evidence of the material prosecution witnesses on which petitioner's conviction is based" was not correctly represented in the order of the High Court and the evidence relating to some other material facts was "equally of dubious value". In the case of Wahad Bakhsh v. The State (1968 S C M R 1042), S. A. Rahman, C. J. granted leave by a very brief order, merely because "there are features in the evidence in this case which would justify its re‑examination by this Court". In an appeal against acquittal reported as the State v. Fateh Sher (P L D 1970 S C 491), my learned brother, Yaqub Ali, J. "perused the entire record and considered the plea pat up by the respondents during the trial" and thereafter came to the conclusion that "the reasons on which the learned Judges in the High Court based their conclusions were thus neither sound nor supported by any material on the record". He accordingly set aside the acquittal and restored the convictions and sentences recorded by the trial Court. As against this, there are certainly some observations in orders granting leave to the effect that the Supreme Court will not grant leave merely for the purposes of appreciation of evidence vide Said Akbar v. The State (1970 S C M R 768), Nisar Ahmad v. The State (1971 S C M R 398) and Rustam v. The State (1971 S C M R 599), but I have not been able to discover a case in which, after leave had been granted to re‑examine the evidence, this Court had refused either to weigh the evidence or to come to its own independent satisfaction after full appreciation of the evidence. The cases on this line can no doubt be multiplied but it is unnecessary to do so, for, the instances cited above are, in my view, sufficient to show that since 1956 the tendency of this Court has been to consider itself freed from the fetters of the practice of the Privy Council. It has not hesitated to re‑examine the evidence where the justice of the cause so demand ed, as is evidenced by the innumerable number of cases in which leave has been granted to consider the evidence as well as to re‑examine the same. The conclusion, therefore, to which I am driven after the examination of the relevant decisions and the constitutional provisions relating to the jurisdiction of this Court, is that this Court has every right to examine the evidence in a criminal appeal, if it is necessary to the interests of justice. In what circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any bard‑and‑fast rule. Each case will have to be judged upon its own facts and circum stances; but, at the same time, I must point out that although under the constitutional provisions the powers of this Court are in no way fettered, yet, from the very nature of things, there must be some difference in its approach towards the cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained. In the matter of granting leave, this Court undoubtedly has a discretion vested In it which, as has been pointed out by Lord Watson in Dillet's case, may well not be exercised in favour of an applicant for leave, even though the Courts below might have committed an error of law of such a grave nature as would have justified leave. The Court would, in such cases, be entitled to refuse leave, if it comes to the conclusion that the Court below had on the whole done substantial justice and no useful purpose will be served by granting leave and thereby raising a false expectation in the mind of the persons affected. From this it would also follow that, in the matter of granting leave to appeal, as this Court has repeatedly emphasized, it does not function "as an ordinary Court of criminal appeal". In order to justify the grant of leave, at least some serious question of law must prima facie be made out or some case of grave miscarriage of justice established either by reason of the fact that the findings sought to be impugned could not have been arrived at by any reasonable person or that the findings were so ridiculous, shocking or improbable that to uphold such 'a finding would amount to a travesty of justice. The limitations, which the Court imposes on its powers are, however, only such as are implicit in the nature end character of the power Itself. They cannot be defined with any precision, because, it is not advisable to fetter the exercise of this discretionary power by any set rule. The Court will no doubt use its good sense in determining the circumstances in which It will grant leave and will exercise its discretion on well established principles; but where the Court reaches the con clusion that a person has been dealt with In violation of the established principles of the administration of criminal justice, then no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below. Once, however, the Court has come to the conclusion that injustice has been done and has granted leave to appeal I, for my part, do not see any reason as to why an appeal by special leave should be treated differently to an appeal as of right. Both appeals should, in my view, stand on the same footing and should be determined according to the same principles of administration of justice by this Court. Now that we are no longer merely exercising a prerogative jurisdiction but are exercising powers conferred by the Constitution, there appears to me no valid reason for this Court to be inhibited by the limitations which the Judicial Committee of the Privy council had imposed upon itself. I cannot, therefore, persuade myself to agree that we should go back again to the rule in Dillet's case and narrow down the scope and content of our own constitutional jurisdiction. We should have the fullest power to do full justice without fettering ourselves with any self‑imposed restictions, which are no longer necessary in the context of the changed circumstances in which we now function. 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. We cannot merely content ourselves by saying that we will not to us that a concurrent finding of fact, even if it appears to us that that concurrent finding was clearly based upon a misconception of the facts or was so patently impossible or was so clearly opposed to physical lawn that to leave it unaltered would amount to perpetuating an injustice. In such circumstances this Court ought not to have any hesitation in interfering with such a concurrent finding. In my view, once this Court has come to the conclusion that the findings of the Court appealed from cannot be maintained, then ft should have all the power; of that Court and should be in a position to do alt that the Court appealed from could do in the circumstances This, in my humble opinion, is the true scope and nature of the powers of this Court in a criminal appeal, whether it be an appeal as of right or an appeal by special leave, that has consistently been followed by this Court ever since 1956. Having thus determined the scope of my functions as a Judge of this Court, I now proceed to examine the evidence in the case before me, as stated in the leave granting order, "to ensure the, safe dispensation of justice". I do not propose to recapitulate the facts of this case, which have been fully set out in the earlier judgment of my learned brother Sajjad Ahmad Jan, J. The prosecution case, it appears, was sought to be supported mainly by the direct testimony of three witnesses, namely, Malli (P. W. 2), Ali Mochi (P. W. 3) and MR. Naziran (P. W. 4). Malli is the paternal uncle of the deceased and Mst. Naziran is his widow. Ali Mochi is the only witness who is net related to the deceased. The High Court came to the conclusion that in the background of enmity and blood feud between the parties the evidence of Malli and Mst. Naziran was "highly interested in character" but, nevertheless, decided to rely upon the same, because, it had been "sufficiently corroborated by Ali Mochi", a disinterested witness. The evidence of All Mochi, therefore, was the pivotal evidence on which the entire case hinged. He was a non‑proprietor being a kamin of the village and he came to the place of the incident by accident on hearing the alarms raised by the companions of the deceased. His house was at a distance of more than 2 or 21 killas and there were several houses in between his house and the edge of the village abadi near which the incident occurred. All these houses were inhabited, but no one from any one of these houses either came out or gave evidence in this case. Even the two persons who were said to accompanying the deceased and his party at the time, namely, Umra and Mst. Sardaran, were not examined. But Ali Mochi, who accord ing to his own version was on his way to the fields to answer the call of nature heard the cries and by hurriedly covering a distance of about 1 killas (40 steps) managed to arrive just in time to see the occurrence. He could not tell the number of blows inflicted on the deceased, nor did he raise any alarm. In fact, after remaining near the dead body for 2 to 3 minutes, he would have us believe, that he left to urinate and from there went to the mosque to offer his prayers and from the mosque he went straight to his house. He came out the following morning only when summoned by the police. The conviction, based principally upon the evidence of Ali Mochi, could only be justified if his evidence was found to be unimpeachable in every respect. This raises the question as to whether upon the principle consistent with the safe dispensation of criminal justice accepted bar this Court the solitary evidence of a single witness, who happened to be there merely by chance, could be made the basis of the conviction? The High Court considered him to be a truthful witness merely, because, it thought that he had not been shown to have any particular animus against the accused persons. This con clusion however, was reached by ignoring the positive suggestion in cross‑examination that he was a moin of the deceased party and that he had in fact joined the deceased in murdering the father of the accused. He denied the suggestion but the fact remained undisputed that although he was a kamin of the village he had come forward to support the prosecution. Would he have had courage to do so if he was a disinterested person Sajjad Ahmad Jan, J. has taken the view that his disinteres tedness is only a "guise" and that his evidence does not inspire any confidence. On the other hand, Salahuddin Ahmed, J. thought that he could safely be relied upon, as there was co suggestion even to him to show that he had any particular reason to falsely implicate the appellants. This of course, I must point out with respect, is not quite correct, for suggestions were indeed made. Yaqub Ali, J. has not discussed his evidence at all nor expressed any view with regard to his credibility. This witness, as has been pointed out by Sajjad Ahmad Jan, J., did not also support the prosecution version fully, for, he did not see any bundle of bajra fodder at the spot or any fodder load, while the prosecution case was that the deceased and his companions had gone to the bajra field of the deceased to cut fodder and when they were carrying it back to the village the deceased was attacked at about degarwela. No bajra load was seized by the Police nor was any attempt made to verify the prosecution version by visiting the bajra field and finding out if any bajra was, in fact, cut from the field. The veracity of the prosecution witnesses, including All Mochi, was also seriously affected by the fact that the recoveries of the weapons of offence at the instance of the accused persons were disbelieved by the High Court on the ground that even the recoveries had been witnessed by near relatives of the deceased although three lambardars were available in the village. The recovery witnesses had furthermore given incon sistent versions on material points. The time of the Incident alleged by the prosecution witnesses also did not fit in with the medical evidence which showed that, at the time of post‑mortem examination, the stomach of the deceased was found to be full and so was the urinary bladder. From this physical fact the inference should have followed that the incident could not have occurred, as alleged by the prosecution, at degarwela but after evening time which is the usual hour for Zamindars in this part of the country to take their evening meal. The defence case appears to have been that the deceased must have gone out to the fields to ease himself after his evening meal and was there attacked by someone of his enemies whose number was quite large, and it is for this reason that no independent witness could be found, apart from very near relations and a kamin, to depose in favour of the prosecu tion. The High Court admitted that deep‑rooted enmity existed between the parties due to blood-feud and disbelieved the recovery of the blood‑stained hatchets, yet accepted the oral evidence of interested witnesses merely on the ground that Ali Mochi was an unrelated witness having no move to falsely implicate the appellants. The apparent conflict created by the medical evidence was explained away by accepting the prosecution evidence, that the deceased took his last mean after finishing the cutting of the bajra fodder and just before starting on the return journey to the village, even though this is as incon sistent with the normal course of conduct of agriculturists in this country. It is inconceivable that a person carrying his midday meal with him to the fields would wait till he had completed the cutting of the fodder and then take his meal just before returning home. The normal course of conduct would have been to take the meal earlier in the day or to wait till after returning home to have the meal in comfort. The High Court was also not prepared to accept that All Mochi arrived there by accident or that he was a chance witness, because, he was a resident of the village, without realising that every resident of the village does not necessarily become a natural witness to an incident occurring on the outskirts of the village. Ali Mochi's house was at a good distance away from the place of the incident and there is nothing on the record to show that he had of necessity to go that way to answer the call of nature at this time of the day. Nor is there any explana tion by the witness as to why he had adopted the callous course of quietly departing from the place, after seeing a murder being committed, to await being summoned by the Police from his house in the following morning I have carefully considered the reasons given by the High Court for believing the evidence of Ali Mochi and I am con strained to say that the reasons given are insubstantial and irrelevant. This conclusion appears to have been reached without taking into consideration all the relevant circumstances which affected his credibility. 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 sot a 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 conviction. In this view of the matter, the finding of the High Court with regard to the credibility of this witness is not based on correct legal principles and could, therefore, be legitimately interfered with. am, therefore, with due respect to my learned brothers who have written dissenting notes, inclined to agree with Sajjad Ahmad Jan, J. that the High Court had arrived at its finding without due consideration of all the relevant evidence and circumstances. It s finding was, therefore, liable to be reversed, as has been done by Sajjad Ahmad Jan, J. I would, therefore, in agreement with him, hold that this was not a fit case to warrant the conviction of two persons in respect of such a heinous charge. The evidence was extremely unsatis factory, conflicting and contradictory and did not establish the guilt of the appellants beyond any reasonable doubt. I would, therefore, allow this appeal, give the appellants the p benefit of doubt and set aside their convictions and sentences. They should be set at liberty forthwith, if not required in any other connection. S. A. H. Appeal allowed.