' SAHIB KHAN, J.--- We intend to dispose of both the Criminal Appeals Nos.9 and 10 of 2003, through this single judgment/order as both the appeals are the outcome of single judgment/order, dated 24-3-2003, passed by the Sessions Judge, Gilgit, in Sessions Case No,SC.38 of 2003.
2. Briefly stated facts of the case are that, F.I.R. No,17 of 1994, of Police Station Juglote, has been lodged on the written application filed by one Alif Khan, P.W./F.I.R. Lodger, who is son of the Sher Wadan (deceased) on 13-8-1994. In his report, the complainant alleged that on the day of occurrence i.e. On 13-8-1994, he along with his father Sher Wadan (deceased) had gone to village Sabil in connection with their private matter. They took their lunch at the house of P.W. Bubul Jan son of Karimullah at Sabil Kot. According to complainant, after having the meal they left for their house situated at Maidan Chakar Kot, P.Ws. Bulbul Jan and Shahzada Khan son of Sawal also accompanied them to see them off. On their way Mir Bahadur son of Shah Rais Khan accused/respondent met them carrying an axe in his hand, who also accompanied upto Animal Husbandry Dispensary situated at Sabil Khari. The complainant further disclosed in his report that one Shah Jehan was working in the room of dispensary as carpenter, deceased saying that he had some private matter with Shah Jehan entered into the dispensary, while Mir Bahadur also entered into the dispensary after the deceased. On arrival at Verandah, deceased sat down on Verandah, while Mir Bahadur stood just behind the deceased. According to the F.I.R. Lodger/complainant, he with Bulbul Jan and Shahzada Khan after moving ahead stood on the main road of Sabil waiting for return of deceased, at about 1400 hours he heard a cry and saw Mir Bahadur (accused) pulling axe from the head of his father (deceased), and ran away towards southern side crossing fallen wall of the dispensary through link road of Sabil then towards western side. Complainant followed him to some extent, but could not catch hold of him. According to the F.I.R. Lodger the deceased expired on the spot due to head injury caused by the accused, he along with P.Ws. Witnessed the occurrence. He has given the motive for occurrence that the deceased was suspected for the murder of Jawar Khan maternal-uncle of the respondent/accused.
3. After completion of investigation, the investigating agency put up the challan before the trial Court on 2-8-1995. Accused was charge-sheeted by the trial Court on 8-4-1996, wherein accused denied to plead guilty and claimed trial.
4. Prosecution in support of its version adduced 8 P. Ws. Along with documentary evidence Exh. P.A., P.W. 8/B, Exh . P.W .3/A Exh.P.W.8/A, Exh.P.W.1/A, Exh.P.W.2/A, Exh.P.W./B, Exh P.W 2/C , Exh. P.W .2/D , Exh. P . W. 2/E. The opinion of Medical Board dated 1-8-1998 is placed on file as Exh.C.W.1.
5. On conclusion of the trial, the learned trial Judge (Mahmood Ghaznavi) found the accused guilty for commission of offence punishable under section 302, P.P.C. And awarded him death sentence on 29-10-1998.
6. On Criminal Appeal No,30 of 1998 and reference by the trial Court to Northern Areas Chief Court, the learned Division Bench of this Court accepted the appeal of the convict, set aside the judgment/order, dated 29-10-1998, and remanded the case to the trial Court on 19-8-1999, with the direction to examine any member of the Medical Board, with affording opportunity to the parties for cross-examination.
7. The trial Court examined the C.W. Doctor Javed on 3-5-2000, but none of the parties bothered to cross the witness. He, however, was re-examined on 21-5-2002, and certain questions were put to C.W. By the Court. On 22-5-2002, the trial Judge weighed the axe along with its handle (alleged weapon of offence), which came out 1 kilo and 400 grams. On the conclusion of trial, the trial Judge heard parties and recorded his impugned judgment/order. On 24-3-2003, acquitted accused from the charge, hence both the matters referred above before us.
8. We have heard the case more than one date on the different points arose from the record and gone through the record in detail with the valuable assistance of the learned counsel appearing for the parties.
9. The learned counsel for the appellant/complainant submitted that two judgments of the lower Court on acquittal as well as on conviction are placed on file. Thus,' both the judgments may be considered, while deciding these appeals. The learned counsel attacked the impugned judgment/order on different aspects with the contention that the learned trial Judge has misread the evidence of prosecution witnesses and wrongly has acquitted the respondent/accused from, the charge of Qatl-eAmd. The learned counsel further submitted that the occurrence took place at broad-daylight and was witnessed by the P.Ws. The names of P.Ws. Have been given in promptly lodged F.I.R., motive for commission of offence has also been alleged and proved through evidence. According to the learned counsel for the complainant, the prosecution has established a case against the accused beyond any reasonable shadow of doubt, hence the appeals in hand may be accepted and capital sentence may be awarded to the accused/respondent. He in support of his contentions referred a series of authorities. The learned Advocate-General fully supported the arguments advanced by the counsel for complainant.
10. On the other hand, the learned counsel appearing for the respondent/accused defended the impugned judgment/order with the submissions that the respondent has falsely been involved in the case who is innocent and the occurrence if had taken place is unseen one, story given is concocted and fabricated by the police with the collusion of complainant party, who had rivalry with the respondent over a piece of land. He further submitted that the so-called P.Ws. Are closely related to complainant party and also are chance witnesses, their statements cannot be relied upon for imposing a capital punishment. He prayed for dismissal of both the appeals. The learned counsel also referred a number of case-laws to substantiate his view-point.
11. It is, much relevant to note that according to statements of eyewitnesses the occurrence took place within the boundary of Animal Husbandry situated at Sabil Khari, and all the alleged P.Ws.
Namely Alif Khan P.W., Shahzada Khan P.W. And Bulbul Jan P.W. Have claimed to witness the occurrence from outside of the said boundary wall. In his cross-examination, P.W.4 Alif Khan stated that the boundary wall of Dispensary is higher than his height. He further told that he along with other P.Ws. Were sitting on the road, he has further confused his statement by saying that "perhaps they were in standing position", but could not give facing direction and in which position they were present there. P.W.5 Shahzada Khan, in his cross-examination has also stated that the height of the boundary wall is higher than his height. However, none of the alleged P. Ws. Could have stated in their statements that how they saw the occurrence over from a wall higher than their height.
Normally it is unimaginable to believe that one can see anything inside over a wall higher than his body. To ascertain their position when we divert our attention towards Exh.P.W.8/B, site plan it can easily be noticed that point No,2, where the accused is stated to be present is not visible from the point where P.Ws. Were allegedly present even through the door of boundary wall of dispensary. All the P.Ws. Have stated in their statements, that accused was standing just behind the deceased.
These statements if compared with the above cited exhibits, both the situations contradict each other. In short, the question of visibility of occurrence from the site where P.Ws. Were alleged to be present to the position where the accused and deceased were present is still highly doubtful.
12. The P.Ws. Namely Shahzada and Bulbul Jan have admitted in their statements, that they are closely related with complainant party and also are not residents of the area rather they belong to Khinar and Pari Banglow respectively. These P.Ws. Could not conveniently justify their presence on the day of occurrence at the area and place of occurrence while non from the area except P.W.4 son of the deceased has seen the occurrence at mid-day time close to populated village and on the bank of main road.
13. It is on the record, that the case was remanded by this Court to ascertain the capability of accused to commit the alleged ,offence with his left hand as he was disable with his right hand. In this context, the opinion of the Medical Board is on the record as Exh.C.W.1-, the Medical Board has held vide para. No,2 of Exh.C.W.1 as "There is clawing effect on his right hand. He cannot make a firm grip, so he cannot firmly hold and use a heavy tool or object". In the same para. Of the Exh.C.W.1 the Medical Board held that the question "whether he can hold a heavy axe in the left hand and kill a person is difficult to answer because lifting a heavy axe striking against something needs support of the other hand which is very weak in this case. However, the answer may be in affirmative if the axe is a light axe i.e. Up to 1 kilogram". The Medical Board further stated that they cannot give the exact time of disability which could facilitate us in determination of use of left hand and its capability of holding the axe of the weight of 1 kilo and 400 grams.
14. It is the basic principle of administration of criminal justice that prosecution is bound to prove a case against the accused beyond any reasonable doubt. In the present case, we are not only assessing a criminal case in the scale of its above principles, but we deal with the matter of appeals against acquittal. Of course, standard required for converting acquittal into conviction is something above than that a case for conviction before the trial Court, as that the presumption of innocence on the acquittal attaches with the accused. Obvious approach for dealing with the appeal against conviction would be different and should be distinguished from the appeal against acquittal, because presumption of double innocence of the accused is attached to the order of acquittal. Such findings cannot be reversed, upset and disturbed unless the same is found to be perverse, shocking, alarming, artificial and suffering from errnr of jurisdiction or misreading or non- reading of evidence and for the reason stated above we do not feel so.
15. We, on the point found ourselves in agreement with the series of case-law reported in law journals decided by Supreme Court of Pakistan and High Courts specially the following case-laws:- - ' 2002 SCM R 713, 2003 SCM R 477, PLD 2003 SC 563, 1995 SCM R 896 and PLD 1984 SC 225.
16. What has been discussed above gives us clear message of the fate of both the criminal appeals i.e. We found both the criminal appeals meritless and dismiss the same by upholding the judgment/order, dated 24-3-2003. File be consigned to record.