ABDUL HAMEED DOGAR, J. Petitioners seek leave to appeal against the judgment dated 22.5.2003 of a learned Division Bench of the High Court of Sindh, Hyderabad Circuit, Hyderabad, whereby Criminal Appeal No. 27 of 2002 filed by Respondent No. 1 was allowed' and he was acquitted of the charge under Section 302, PPC while giving him the benefit of doubt.
2. Briefly, stated, the facts of the prosecution case as unfolded in the FIR are that on 29.11.1990 while complainant Moula Bux, his son deceased Ali Gul, nephew Luqman and his cousin's son Abdul Khalique had gone to Nawabshah with some private work and at about 13.30 noon when they reached near the shop of Abdul Ghafoor in Soochi Para, respondent, Yousaf acquitted accused Abdul Ghani and Mir Khan surrounded them. Respondent Yousaf was armed with pistol and threatened complainant's son Ali Gul that he will not be spared whereupon acquitted accused Abdul Ghani caught hold of him from his arms whereas respondent Yousaf fired pistol shot which hit him on his left parietal region. Leaving PWs over the dead-body, complainant went to Police Station Line Par, Nawabshah and lodged FIR.
3. Motive behind the incident was that after about 19/20 days ago one Alam, nephew of respondent Yousaf, had entered into the house of Gul Sher cousin of complainant and was killed, In order to avenge that murder respondent's party killed the deceased.
4. On autopsy Dr. Muhammad Iqbal Ansari, Medical Officer, Civil Hospital, Nawabshah found the following injuries on the person of deceased Ali Gul:-
(i) Wound of entry 7x7 in diameter on left side of - face, fracture of mandible on left side.
(ii) 1/2 c.m. Wound is present on left upper eye lid.
(iii) Exit wound 1/2 c.m. x 1/2 c.m. In diameter on right cheek right mandible is also fractured.
5. On the conclusion of investigation, charge- sheet was submitted against acquitted accused Abdul Ghani and Mir Khan before learned IInd Additional Sessions Judge, Nawabshah, wherein respondent Yousaf was shown as an absconder. The trial proceeded against them and were acquitted vide judgment dated 8.11.1993 whereas Yousaf was declared proclaimed offender and was arrested subsequently on 13.2.2000 and was sent up to face trial before the same Court.
6. Prosecution in order to establish its case examined (PW-7) Abdul Khaliq and (PW-8) Luqman as eyewitnesses of the occurrence. Since the complainant had expired, as such, his evidence was brought on record. The evidence of Medical Officer, namely, Dr. Muhammad Iqbal Ansari, Medical Officer recorded in the earlier trial was also brought on record by the learned Prosecutor. -7. In his statement under Section 342, Cr.P.C, respondent denied the case of the prosecution and claimed innocence. According to him he was not present at the spot because he was serving in Karachi as driver and was not residing in Nawabshah. However, he did not examine himself on Oath as required under Section 340(2), Cr.P.C, but examined one Nawaz. Ali in his defence and also produced copy of statement of DW Wali Allah recorded in earlier proceedings. He also produced Photostat copy of judgment dated 8.11.1993 of acquitted accused, namely, Abdul Ghani and Mir Khan.
8. Oh conclusion of trial, respondent Yousaf was found guilty under Section 302, PPC and was sentenced to death with a i.e of Rs. 50,000/- as compensation to be paid to the legal heirs of the deceased under Section 544, Cr.P.C, or in default to suffer further imprisonment for six months vide judgment dated 20.3.2002.
9. In appeal learned High Court acquitted respondent Yousaf and answered reference for confirmation of his death vide impugned judgment.
10. We have heard Mr. Sulman Habibullah, learned A.R for petitioners, Mr. Abdul Rahim Kazi, leamed ASC for Respondent No. 1 Yousaf and Dr. Kazi Khalid All, learned Additional A.G. Sindh on behalf of State and have gone through the record and the proceedings of the case in minute particulars.
11. Mr. Sulman Habibullah, learned A.R for petitioners while attacking propriety of impugned judgment relating to acquittal of respondent Yousuf strenuously urged that the learned High Court has not only misread the evidence but also grossly mis-exercised its jurisdiction. He contended that the learned High Court has completely overlooked the significance of an elaborate FIR promptly lodged within half an hour of the occurrence containing a detailed ocular account with a specific reference to the natural eye-witnesses whose testimony found full support from the medical evidence. He further contended that learned High Court has failed to appreciate that complainant Mula Box, PW-Abdul Khaliq & PW-Luqman the eyewitnesses though relative they were natural witnesses. They had proceeded together to Nawabshah and it was within their sight incident took place. The findings of learned High Court that above witnesses were not only interested, inimical, hostile but chance witnesses are merely based on assumption and presumption and contrary to the evidence on record, as such the same being perverse, arbitrary are liable to be set aside. According to him eye-witness account is fully corroborated by medical evidence and factum of the absconsa for a period of 10 years, after the incident. Learned High Court has not considered above aspect of matter in its true perspective which resulted in miscarriage of justice.
12. On the other hand, Mr. Abdul Rahim Kazi, learned counsel for respondent Yousuf controverted above contentions and contended that the principles on which this Court can interfere in the cases of acquittal are well-settled and that mere possibility of an alternative view makes no grounds for interference unless it is established from record that the judgment of acquittal is based on palpable misappreciation of law or misreading of evidence which renders it unsustainable.
According to him the judgment of the learned High Court warrants interference only if the same is found to be foolish, arbitrary, capricious or perverse, It was next argued that prosecution evidence was properly appreciated and assessed by the learned High Court and conclusion concerning acquittal is based on sound and cogent reasons and does not warrant interference. He pointed out that there are sufficient material discrepancies in the prosecution evidence and it was such basis on which involvement of respondent was found doubtful.
13. Dr. Kazi Khalid AN, learned Additional Advocate-General supported the stand of petitioners and canvassed that preponderant evidence was available on record whereby guilt of respondent and his active participation in the commission of offence stood established. It was stressed that the learned High Court has unjustifiably drawn arbitrary inferences and conclusions contravening the established norms of justice in evaluation of evidence in criminal matters. According to learned counsel background Of incident and strong motive resulting in the said incident was settled and that mere possibility of an alternative view makes no grounds for interference unless it is established from record that the judgment of acquittal is based on palpable mis-appreciation of law or misreading of evidence which renders it unsustainable. According to him the judgment of the learned High Court warrants interference only if the same is found to be foolish, arbitrary, capricious or perverse, It was next argued that prosecution evidence was properly appreciated and assessed ^by the learned High Court and conclusion concerning acquittal is based on sound and cogent reasons and does not warrant interference. He pointed out that there are sufficient material discrepancies in the prosecution evidence and it was such basis on which involvement of respondent was found doubtful.
14. Dr. Kazi Khalid Ali, learned Additional Advocate-General supported the stand of petitioners and canvassed that preponderant evidence was available on record whereby guilt of respondent and his active participation in the commission of offence stood established. It was stressed that the learned High Court has unjustifiably drawn arbitrary inferences and conclusions contravening the established norms of justice in evaluation of evidence in criminal matters. According to learned counsel background of incident and strong motive resulting in the said incident was conspicuously reflected from material on record whereby direct involvement of respondent stood proved.
15. Admittedly, the incident took, place on 29.11.1990 at 12.30 noon and FIR was lodged by the complainant on the same day at 1.00 p.m. Which contained full details of the incident. The seat of injuries on the person of deceased and the manner in which the incident took place find full corroboration from the medical evidence. The findings of the learned High Court that eye- witnesses are not only interested, inimical, hostile but also chance witnesses are based on non- reading of evidence. None of the eyewitnesses have stated that it was by chance that they came at the place of occurrence incidentally but on the contrary complainant Maula Bux and all other eye-witnesses have categorically stated during trial that on the day of incidence they left their village together and went to Nawabshah for some private work and it was within their sight respondent Yousaf fired at the deceased. Accordingly we are of the considered opinion that above-mentioned witnesses are not chance witnesses but are natural witnesses of the incident which is sufficiently established on record. A chance witness is one who appears at the place of occurrence incidentally as per chance. This-Court in the CASE of Muhammad Ahmad and another v. The State and others (1997 SCM R 89), while discussing about chance witnesses has held that when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passers by- cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant time or there is otherwise any inherent weakness or contradiction in their testimony, In the instant case respondent Yousuf has failed to bring on record that above-mentioned witnesses were either passers-by or appeared all of sudden at the time of incident or that there were any inherent weakness or contradiction in their testimony, In the case referred (supra) the aspect of failure of prosecution to sight or examine any witness from the vicinity of the place of occurrence have been elaborately discussed, It has been held that it is a matter of common knowledge that the people from the locality generally hesitate to come forward as witnesses in such cases for fear of reprisals from the accused party. Such tendency, though important, has been taken note of in a number of cases and condoned in view of the particular conditions prevailing in the country. The same view has also taken by this Court in the case of Alam Khan & another v. The State (1976 SCM R 128). The factum of abscondence of respondent Yousaf for a period of 10 years cannot be brushed aside mainly for the reason that the murder of deceased Ali Gul was not secret but was known in Nawabshah Town and in the entire vicinity and everyone knew that respondent Yousaf and acquitted accused namely Abdul Ghani and Mir Khan were nominated to be culprits of the case. Irrespective of above, acquitted accused' being closely related to respondent Yousaf faced trial for about 3 years as such, the contention that registration of the case against respondent. Was not within his knowledge is unbelievable. The defence plea that respondent used to work as driver in Karachi and was not aware of the proceedings against acquitted accused is without any foundation, In support of said plea, he neither examined himself on Oath nor produced any witness in defence. Qn the aspect of abscondence, this Court in the case of Allah Dad and 2 others v. The State (PLD 1978 SC 1) has held that accused, held, remained in hiding and their abscondence proved though not conclusive by itself to establish guilt and its probative value dependent on facts and circumstances of each particular case, yet universally admitted as evidence of guilt of accused.
Similarly, in the case of AH Khan v. The State (1980 SCM R 474) this Court has observed that accused soon after the occurrence remained absconder for one year and the said abscondence was not satisfactorily explained by him Moreover, the evidence of eye-witnesses was corroborated by medical evidence and absconsa of accused, It is also settled principle of law- that when defence plea is raised by an accused, the burden to prove the same lies on his shoulders. In the instant, case when said plea is examined in juxtaposition to the case of prosecution seems to be untrue. Reference can be made to the case of Abdul Wahid v. The State (2003 SCM R 668) wherein it was held that initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the accused in defence then both are to be considered in juxtaposition and the one which is nearer to the truth is to be given weight.
15. It is no doubt open to the Appellate Court to reach a conclusion different from the one arrived at by the Trial Court on re-appraisal of the evidence on record on a point of fact but in doing so the Appellate Court cannot totally ignore the reasoning given by the Trial Court in support of its concussion. The Appellate Court while disagreeing with the conclusion of the Trial Court, on the point of fact, will have to take into account the reasons advanced by the Trial Court and if it disagrees with the reasons of the Trial Court it must give its own reasons for such disagreement which should proceed on some logical basis, It the Appellate Court merely says that it does not agree with the conclusion of the Trial Court without adverting to the reasons given by the Trial Court in support of the conclusion and without disclosing any logical basis for such disagreement, such finding by the Appellate Court which is at variance with Trial Court's finding, cannot be binding, In the case before us the reasons given by the Trial Court for holding that the eyewitnesses in the case were present at the time of occurrence at the spot, were not only convincing but the evidence of these witnesses remained totally unshaken in spite of lengthy and searching cross- examination by the counsel for respondent. The learned Judges of the High Court while disagreeing with the Trial Court have totally ignored the reasons given by it in believing these witnesses. The Trial Court, in our view, for the good reasons reached the conclusion that the evidence of the eye-witnesses in the case inspired confidence. The Trial Court rightly held that the ocular account of the incident given by the witnesses was sufficiently corroborated by the motive and the medical evidence and that of absconsa. The reversal of the judgment of Trial Court by the High Court is totally unjustified and based on arbitrary, capricious and imaginary reasons.
16. For what has been discussed above we are of the considered opinion that impugned judgment being based on non-reading and misreading of evidence is not sustainable in law and is thus set aside whereas judgment of the Trial Court recorded after discussing every aspect of the matter being well-reasoned, is thus restored. The conviction and sentence of death awarded to respondent Yousaf is maintained.
17. These are the reasons of our short order, which is reproduced as under:-- "For the reasons to be recorded later on the judgment of the learned High Court of Sindh at Hyderabad dated 24.5.2003 delivered in Criminal Appeal No. 27/2002 is set aside and the judgment dated 29.3.2002 of learned IInd Additional District Judge, Nawabshah, convicting Yousaf u/S. 302(b), PPC awarding him death sentence is restored respondent Yousuf is present in Court and has been taken in custody and remanded to jail."