' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court, has been directed against the judgment dated 17-6-1998 passed by a Division Bench of Lahore High Court, Lahore, whereby criminal appeal with connected criminal revision filed by the respondents and the complainant respectively, were disposal of along with murder reference sent by the trial Court.
2. The essential facts for disposal of this appeal in small compass, are that Muhammad Zaman and Ishtiaq Ahmed, respondents herein, along with Riasat Ali and Imtiaz, were tried by the learned Sessions Judge, Sargodha, for the charge under section 302/34, P.P.0 for committing murder of Ghulam Sarwar in an occurrence which had taken place at about 4-00 p.m. On 7-12-1990 at Seemnala in Chak No,3 NB at a distance of five miles from Police Station, Bhalwal and the case was registered on the report lodged by Muhammad Riaz, appellant at 5-30 p.m. On the same day. The learned trial Judge, having found the respondents guilty of the charge, convicted and sentenced them to death under section 302/34, P.P.C., and acquitted their co-accused vide judgment dated 26-11-1992. The Lahore High Court in appeal filed by the respondent while setting aside their conviction and sentence, acquitted them from the charge and allowed their appeal. The criminal revision filed by the complainant for setting aside the acquittal of Riasat and Imtiaz and for awarding compensation to the legal heirs of deceased under section 544-A, Cr.P.C. Was dismissed.
3. Leave was granted in this appeal vide order dated 15-4-1999 to consider as to whether, the impugned judgment of the Lahore High Court was in consonance with law as enunciated by this Court, keeping in view the evidence on record.
4. The appellant and his deceased brother Ghulam Sarwar on the fateful day, while coming from Chak 10/ML on a motorcycle. When at 4-00 p.m. Reached the place of occurrence, Muhammad Zaman and Ishtiaq, (respondents) armed with .12 bore guns, fired one shot each at the deceased and Muhammad Zaman also inflicted injuries on his face and eyes with knife. The occurrence was also witnessed by Muhammad Shafi, Abdul Rauf and Mahmood Ahmed, who were present in the nearby fields. The motive for the occurrence as stated was the enmity between the parties due to the criminal litigation. The investigation was conducted by Muhammad Yaqoob, S.-I. (P.W.11) who having prepared injury statement (Exh.PG) and inquest report (Exh.PJ) of the deceased in the hospital, sent the dead body to mortuary for post-mortem examination. The Investigating Officer after taking into possession blood stained earth from the spot, prepared the site plan and recorded statement of witnesses. Muhammad Zaman respondent while in custody led to the recovery of knife (P.4) and gun (P 5) whereas Ishtiaq got recovered an unlicensed gun (P.6) from his Dera.
Dr.Muhammad Ali (P.W.8) conducted post-mortem examination on the dead body of deceased on 8-12-1990 and in addition to the four fire-arm injuries on the right thigh and right leg near knee also found two incise wounds on right and lower eye-lid and two linear cuts on right eye-brows with one abrasion on right eye. The doctor declared these injuries ante-mortem which were caused with the duration of about one hour. Muhammad Riaz (P.W.9) and Abdul Rauf (P.W.10) furnished the ocular account and narrated the facts in detail as contained in the first information report.
5. The gist of the statement of eye-witnesses is that the accused inter se were closely related and were inimical towards the deceased, real brother of Muhammad Riaz. The deceased and Muhammad Riaz, on the fateful day, having seen Muhammad Asghar Gujjar in Chak 10-ML were proceeding to their village on a motorcycle and when at 4-00 p.m., reached at Pul-Seemnala within the area of Chak 3-NB, Zaman and Ishtiaq armed with guns, suddenly emerging at the scene, opened attack on the deceased. The shot fired by Ishtiaq hit the deceased on his right thigh whereas the shot fired by Muhammad Zaman hit on his right leg and Muhammad Zaman also caused injuries on both the eyes of the deceased with knife. The motive behind the occurrence was that Fardous, brother-in-law of deceased, and others made a murderous assault on Aftab, advocate, a relative of accused and they were challaned under section 307, P.P.C. The deceased was pursuing the case of Fardous etc. And prior to the present occurrence, Riasat and Ishtiaq made a murderous assault on him in which Karim Dad was injured and a case was registered against them on the report lodged by Ghulam Sarwar deceased. The respondents then made another attempt at this life in the compound of hospital and a case under section 307/34, P.P.C.
Was registered against them and all these cases were pending in trial at the time of occurrence.
6. Learned counsel for the appellant has contended that it was a bright day light occurrence, the report of which was lodged without loss of any time was witnessed by the most natural witnesses.
He asserted that the respondents have strong motive to commit the murder and notwithstanding the enmity between the parties, the eye-witnesses were truthful and their testimony was confidence inspiring but the learned Judges in the High Court having formed an incorrect view of the evidence, excluded the presence of eye-witnesses at the scene of occurrence with observation that their testimony was in conflict to the medical evidence.
7. Learned counsel for the respondents, on the other hand, has contended that the parties were inimical to each other and the motive of enmity being a double edged weapon could not be considered a reliable source of corroboration to the ocular account of inimical and interest witnesses and that the conflict of the medical evidence with the eyewitnesses' account as pointed out by the High Court, would reasonably suggest that the witnesses have not seen ,the occurrence and their testimony was not worthy consideration. Learned counsel emphasized that Abdul Rauf was a trainee in an Institution at Bhalwal and his presence near the place of occurrence at the relevant time was not possible and similarly, the prosecution has also not been able to bring on record any evidence to prove that Muhammad Riaz in fact had gone with his deceased brother to Chak 10-ML on that day to see Asghar Gujjar so much so Asghar Gujjar was not produced to confirm the visit of deceased and Muhammad Riaz to his house before the occurrence. Learned Counsel argued that the conduct of Muhammad Riaz to be that of a silent spectator at the scene of occurrence and not to make any effort to save the life of this real brother who was being caused injuries with deadly weapons in his presence was unnatural which would make his presence at the spot, highly doubtful. Learned counsel next contended that according to the prosecution case, the headlights of the motorcycle through which the deceased and complainant were travelling, were damaged in the occurrence but neither the motorcycle was taken into possession nor it was produced in Court which would create serious doubt qua the truthfulness of the prosecution story.
In nutshell, learned counsel taking benefit of the reasons given by the High Court for acquittal of the respondents, contended that it was an unseen occurrence in which the respondents were implicated due to enmity and prosecution has not been able to trove the charge against them beyond reasonable doubt.
8. The High Court, having appraised the evidence and taking into consideration the factor of enmity between the parties and also the minor discrepancies and contradictions in the evidence, held that charge was not proved against, the respondents beyond doubt. The main consideration for the acquittal of the respondents was that medical evidence was running counter to the eye- witnesses account. The relevant discussion in the judgment is reproduced hereunder:- "Now in the present case injury No,1 was described by the medical officer as entry wound. Tatooing around the margins of the wound was a clear indication of the same being entrance wound. The size of the wound of about 2 c.m. And presence of wad in the `Shalwar' of the victim showed that the shot was fired from a close range about 18 inches or so. The shot after entering the body had fractured the upper and .Of tibia and having hit a bone dispersed considerably and pellets existed through injuries Nos.2, 3 & 4. The size of injuries Nos.2 &3 shows that each was caused by exit of a single pellet while rest of the shot existed through Injury No,4. Injury No,4 by no stretch of imagination could be an entry wound and contention_ of the learned counsel for the complainant having no basis is rejected."
' The matter was further discussed as under:-- "The shot appears to have been fired from behind and not from the front or the victim was lying prone when he was fired at behind from a- close range. The deceased had abrasions on his face which simulate what scientists call pedestrian injuries which the deceased received by falling on rough ground, a field or road and presence of these injuries strengthens the view that the deceased was hit after he had fallen down face forward. The injuries Nos.5-10 are superficial abrasions having length and breadth but no depth and could not have been caused by a knife as attempt at gouging out the eyes was likely to cause deep incisions or stab wounds."
9. In the light of above conclusion, it was held that the fire-arm injuries sustained by the victim were the result of single shot and the wounds on, the face of deceased were probably sustained by him due to fall on the ground which were not caused by any instrument and consequently, the ocular account would stand contradicted by the medical evidence.
10. The prosecution in proof of the charge against the respondents, relied upon the ocular account, medical evidence, motive of enmity and the recovery of knife which was used as weapon of offence. The two eye-witnesses namely Muhammad Riaz (P.W.9), real brother of deceased and Abdul Rauf (P. W.10) a relative, in their statements have narrated the full account of the occurrence in the manner in which it has been described in the F.I.R and deposed that deceased was caused injuries with fire-arm and knife. It would be seen that the deposition of the witness was seeking corroboration from the medical evidence to the extent of nature and seat of injuries and the presence of lacerated and incised wounds found on the person of deceased, would suggest the use of fire-arm and sharp edged weapon in the occurrence, therefore, the conflict of medical evidence with ocular account if any, as pointed out by the High Court was only to the extent of statement of doctor according to which one shot was fired. The material contradictions and discrepancies in the evidence in a criminal case may create doubt in the prosecution case and if the eye-witnesses are inimical and interested, this doubt may lead to reasonable possibility of the witnesses being not truthful or an inference can be drawn , that they by suppressing the truth, made a dishonest statement but it is settled proposition of law that mere relationship or enmity is not sufficient to discard the evidence of a natural witness or hold him not truthful and trustworthy.
This is not an inflexible rule that in all circumstances, such contradictions and discrepancies in the evidence must be treated to be injurious to the credibility of a witness and his evidence must be excluded from consideration or he must be held not truthful witness rather the ultimate test of veracity of a witness is the inherent merit of his own statement. We having made a detailed scrutiny of the evidence find that the circumstances leading to the happening of the occurrence in the present case would amply establish the presence of the eye-witnesses at the spot. The travelling of two brothers on 'a motorcycle together in the manner as stated, would be quite natural and similarly, the presence of Abdul Rauf at the bus stop to fetch a bus for Bhalwal would not be questionable as he was resident of the same village and being a student in an institution at Bhalwal, must be waiting for the bus on the road to go to Bhalwal. The defence has not been able to bring any material 'on the record to suggest that on the fateful day, this witness was present in the Institution at the relevant time and his presence at the bus stand of the village near the place of occurrence, was not possible. The learned Judges in the High Court unnecessarily criticizing the non-interference of Muhammad Riaz in the occurrence and pointing out the minor discrepancies in the evidence, drew an adverse inference regarding the presence of the witnesses at the spot. We having examined the evidence in detail find that the reasons given by the High Court for disbelieving the presence of witnesses at the spot were' highly speculative, flimsy and artificial. The conclusion that the injuries on the person of deceased were the result of one shot which was probably not fired from front and medical evidence was inconsistent to the ocular account of eye- witnesses way also not based on sound reasons. The statement of doctor to the effect that the injuries were the result of single shot, being only an opinion which may or may not be correct and would not be sufficient to discard the direct evidence and suggest the non presence of eye- witnesses at the spot. The conflict of medical evidence with ocular account in respect of number and nature of injuries, may be relevant to ascertain the role of an individual accused in the occurrence but this is not a valid ground to disbelieve the eye-witnesses and exclude their evidence from consideration. We may observed that even if it would be assumed that injuries were result of single shot, still in the facts of the present case, it would be difficult to suggest that witnesses were not truthful or the respondents were not responsible for the crime. The eye- witnesses have consistently stated that both the respondents fired at the deceased and according to the medical evidence, the deceased sustained four fire-arm injuries of different sizes on his right thigh, right leg and knee in addition to the incise wounds and abrasions sustained by him on his eyes and face and the ocular account to the extent of sustaining the fire arm and incised wounds by the deceased at the hand of assailants was fully supported by the medical evidence, therefore, the observation of doctor that it was a case of single shot, would not by itself be a valid reasons to discard the direct evidence of natural witnesses. Be that as it may, the confusion whether the injuries were the result of two shots or a single shot, would not ipso facto suggest that eye- witnesses have not seen the occurrence or they suppressed by truth. It is in the evidence that first shot was fired by Ishtiaq which hit deceased on right thigh whereas the second shot fired by Muhammad Zaman hit on his right leg and according to the medical evidence, deceased sustained fire-arm injuries both on right thigh and right leg. The injuries caused with sharp edged weapon to the deceased on his face and eyes, which were attributed to Muhammad Zaman were also traced in medical evidence, therefore, notwithstanding the conflict of statement of doctor regarding the number of shots with the eye-witnesses account, there was no other material contradiction or conflict to doubt the credibility and truthfulness of the evidence of eye-witnesses.
The presence of both the eye-witnesses at the spot appeared to be quite natural and their evidence was also confidence inspiring and mere enmity between the parties would not be a good reason to suggest that they were not reliable witnesses. In the facts and circumstances of the present case, it would be difficult either to doubt the credibility of the evidence of eye-witnesses or' to suggest that they have not seen the occurrence or prosecution has failed to discharge its burden of proving the charge against the respondents. We may point out that the incise wounds traced on the face and eyes of the deceased could not possibly sustained due to fall on ground and the finding of learned Judges in the High Court in this behalf was in utter disregard to the medical evidence and the principle of appraisal of evidence. The postmortem examination of the deceased revealed four fire-arm injuries on his person on right thigh and right leg, near knee, two incise wounds and three linear on eye-lids with an abrasion, therefore, even if it was a case of single shot, as suggested by the doctor, the role of firing and of causing incise wound to the deceased on his face and eyes with knife assigned to Ishtiaq and Muhammad Zaman respectively, was fully established and proved beyond any doubt. The enmity between the parties is admitted and this is correct that the motive of enmity is a double edged weapon which cuts both ways but in the present case, the circumstances leading to the murder of deceased would not suggest that the respondents were substituted as accused due to the enmity, rather the facts would evidently suggest that the respondents committed the murder due to the enmity between the parties.
11. The analysis of the evidence in detail, would show that the High Court was misled in rejecting the direct evidence of unimpeachable character of the natural witnesses on the ground that the ocular account was in conflict to the medical evidence, whereas except the discrepancy pointed out above, there was no other contradiction rather eye witnesses account would seek ample support from medical evidence and was worthy of credit. This is correct that this Court is reluctant to interfere in the appeals against acquittal even if a different conclusion can be drawn unless it is demonstrated with certainty that the consideration on the basis of which accused were acquitted, were not support by the evidence. In Ghulam Sakindar v. Mamraz Khan (PLD 1985 SC 11), it was observed -asunder: "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases law on the question of setting aside an acquittal by this Court. They are as follows:--
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. The difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: (i) initial, that, till found guilty, the accused is innocent; and (ii) that again after the trial Court below confirmed the assumption of innocence;
(2) The acquitted will not carry the second presumption and will also thus lose the first one if one points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court' below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
12. We having carefully examined the evidence, find that the High Court in complete departure to the well known principle of appraisal of evidence, had drawn conclusion of the evidence which would not be reasonably acceptable in the given facts and caused miscarriage of justice. We for the foregoing reasons, are of the considered view that acquittal of respondents in the circumstances of the case being not based on sound principles of criminal administration of justice is not sustainable and consequently, we allow this appeal and set aside the acquittal of respondents. However, while taking into consideration the question relating to quantum of sentence, we find that one fire-arm injury each was attributed to each of the respondent but the doctor has suggested that injuries were result of one shot which would be attributed to Ishtiaq whereas the incise wounds traced on the eyes and face of the deceased, caused with sharp edged weapon, were attributed to Muhammad Zaman, therefore, the participation of both the respondents in the occurrence stood established beyond doubt and notwithstanding the discrepancy in the evidence regarding the number of shots respondents having played an active role in the occurrence with the intention to kill the deceased, would equally be I responsible for the murder and by virtue of section 34, P.P.C. Shared the equal liability in the crime. We, therefore, while holding both of them guilty of the charge of murder, sentence them to imprisonment for life under section 302(b)134, P.P.C. They shall also be liable to pay rupees one lac each as compensation to the legal heirs of deceased under section 544-A, Cr.P.C., which shall be recoverable as arrears of land revenue and in failure thereof to suffer six months' S.I. The respondents, however, will be entitled to the benefit of section 382-B, Cr.P.C. This appeal is accordingly, allowed.