Muhammad Sair Ali, J.--Consequent upon registration of FIR No, 298 dated 10.09.1995 on the report of complainant Muhammad Rafi (PW-7) against Anwar Ali Shah alias Athar Ali Shah and Muhammad Azhar Shah, under Sections 302/324/452/34 PPC at Police Station City D.I. Khan for causing death of Qamar-uz-Zaman, trial was held. The learned Additional Sessions Judge D.I.Khan through judgment dated 4.3.1998 convicted and sentenced Anwar Ali Shah alias Athar Ali Shah under Section 302 PPC to imprisonment for life etc.
2. Accused Azhar Ali Shah alias Ali Shah was, however, acquitted from the charges against him.
3. Against the above said judgment of the trial Court, two Appeals and one criminal revision were filed in Peshawar High Court. The convict i,e, Anwar Ali Shah instituted Criminal Appeal No, 11 of 1998 against his conviction and sentence while Criminal Revision No, 02 of 1998 was filed by the complainant Muhammad Rafi for enhancement of Anwar Ali Shah's sentence. Criminal Appeal No, 09 of 1998 was filed by the complainant, Muhammad Rafi under Section 417(2A) Cr.P.C. to assail acquittal of Azhar Ali Shah alias Ajji Shah i,e, the present appellant.
Through judgment dated 07.06.2001, Peshawar High Court, Peshawar decided the above said two appeals and the criminal revision.
4. Maintaining the conviction and sentences of Anwar All Shah, the High Court dismissed his Criminal Appeal No, 11 of 1998 as well as the Criminal Revision No, 2 of 1998 filed by the complainant Muhammad Rafi.
5. Complainant's Criminal Appeal No, 9 of 1998 against acquittal of the appellant i,e, Azhar Ali Shah was accepted and the trial Court's judgment for his acquittal was set-aside by the High Court.
Azhar Ali Shah alias Ajji Shah was also convicted and sentenced under Section 302 PPC to life imprisonment, payment of compensation of Rs, 50,000/- or to suffer two years R.I. in default of payment; half of which was made payable to the legal heirs of the deceased. He was also convicted and sentenced under Sections 449 and 452 PPC each for 05 years R.I. with fine of Rs, 5000/- or to suffer 06 months R.I. in default alongwith conviction under Sections 337-A(ii) and 337- A(iii) PPC to `Arsh' (5% of Diyat) and `Arsh' (10% of Diyat) respectively with 05 years R.I. under each head. The sentences were to run concurrently with benefit under Section 382-B Cr.P.C.
6. Azhar Ali Shah alias Ajji shah through this Criminal Appeal No, 177 of 2003 has challenged the judgment dated 7.6.2001, of Peshawar High Court, Peshawar, convicting and punishing him as above and for reversing trial Court's judgment of his acquittal.
7. Learned counsel for the appellant has placed reliance upon the case of "State. Vs. Muhammad Sharif and three others" (1995 SCM R 635) to contend that the High Court overlooked the law laid down by this Court on the principles for converting the judgment of acquittal into the judgment of conviction. He also contended that the prosecution case revealed through the depositions of PWs, failed to prove beyond doubt the presence of appellant and his participation in the crime. In contrary arguments, the learned counsel appearing on behalf of the complainant and the State supported the impugned judgment.
8. We have considered the contentions of the learned counsel for the parties and also examined evidence and record of the case.
9. The prosecution story as narrated 'by the complainant i,e, Muhammad Rafi in the FIR was that on 10.9.1995 at 7:50 p.m., when he with his brother i,e, Muhammad Imran and Qamar-uz-Zaman and his sisters Shamshad Bibi, Zahida Bibi, his mother and sister-in-law Robina Khatoon (wife of deceased Qamar-uz-Zaman) were watching an Indian Film; the appellant Azhar Ali Shah alias Ajji Shah and convict Anwar All Shah alias Athar Ali Shah; real-brothers, both armed with pistols, entered their house. The convict Anwar All Shah entering through the gate of the house, fired the fatal shot at Qamar-uz-Zaman deceased. The appellant Azhar Ali Shah was alleged to have entered the house by scaling the'roofs and fired at the complainant a pistol shot which missed.
And that the accused persons injured the complainant, Muhammad Imran, Zahida Bibi, Shamshad Bibi and Robina Khatoon with the 'butts' of their pistols. The motive in the FIR was stated to be ill -will amongst the women folks.
10.The appellant i,e, Azhar Ali Shah alias Ajji Shah was arrested on 13.10.1995 and the convict Anwar Ali Shah was arrested on 28.10.1995. The investigation was completed by the police and the challan was submitted. The accused were charged on 13.08.1996 by the trial Court. They pleaded not guilty whereupon the trial was held. Prosecution produced 16 witnesses including the injured eye-witnesses. The accused were examined under Section 342 Cr.P.C. but opted not to appear as their own witness under Section 340 (2) Cr.P.C. or to produce any defence witness.
11. On examination and analysis of the evidence and the record; the learned Additional Sessions Judge, D.I.Khan through his judgment dated 4.3.1998 convicted and punished Anwar Ali Shah alias Athar Ali Shah but acquitted the appellant Azhar Ali Shah alias Ajji Shah.
12. The reasons prevailing with the learned Additional Sessions Judge for acquitting the appellant were that "from the deposition of all the PWs, the entrance of the accused Azhar Ali Shah alias Ajji Shah and his further role in the commission of the offence is not supported by the prosecution evidence" because:--
(i) The story and manner of is entry in the house, as alleged by the prosecution and shown in the site-plan (Ex.PW16/1) was illogical; (ii)Neither the neighbours i,e, Sadiq and Aslam from the roofs of whose house Azhar Ali Shah was stated to have entered the house of the complainant, nor any other cogent evidence whatsoever was produced to establish such entry; (iii)As indicated in site-plan (Ex.PW-16/1) the accused Azhar Ali Shah fired from Point No, 4 at Point No, 2-A which was not even visible from Point No, 4 and this fact was also not supported by the prosecution evidence; (iv)The accused Azhar Ali Shah did not fire at the deceased at all; (v)His purported fire at the complainant Muhammad Rafi (PW-7) also missed; (vi)No empty was found from the spot from where Azhar Ali Shah fired;
(vii) PW-7 Muhammad Rafi as mentioned earlier stated that Mst. Shamshad Bibi and Mst. Rubina Khatoon were injured by the accused Azhar Ali Shah. Mst. Shamshad Bibi (PW-9) stated that she was injured by Athar Ali Shah. And Mst. Rubina Khatoon was not at all examined;
(viii) Similarly, as per notes in the site-plan (Ex.PW-16/1), the accused Azhar Ali Shah was stated to have injured Muhammad Rafi, Mst. Rubina Khatoon, Imran and Mst. Zahida Bibi, but Muhammad Rafi negated this version in his deposition by saying that "he was injured by accused Anwar Ali Shah and not by accused Azhar Ali Shah".
13.In i,1r0 Appellate judgment, Peshawar High Court, Peshawar held that: The trial Court did not apply its mind in appraising the evidence with regard to accused Azhar Ali Shah alias Ajji Shah who took active part in the commission of offence with his brother Anwar Ali Shah alias Athar Ali Shah; his presence and participation in the offence was established from the record; he fired at the complainant Muhammad Rafi with his pistol and from the line of fire 6 pellets were recovered from the wall; Azhar Ali Shah injured Mst. Zahida Bibi, Muhammad Imran and Rubina Khatoon with the 'butts' of his pistol".
The learned Division Bench of the High Court found the reasons of the trial Court for appellants acquittal as flimsy and non-cogent. And further observed that as Appeal of the convict Anwar Ali Shah alias Athar Ali Shah was dismissed, therefore, complainant's Appeal against the acquittal of co-accused Azhar Ali shah (the appellant) was accepted convict and sentence him.
14.In the above comparative perspective of the reasoning of the learned Courts, we surveyed the entire evidence on record to assess as to whether the trial Court's judgment of acquittal suffered from in applicability of mind, unsoundness or non-appraisal of evidence and flimsiness of argumentation.
15.Bare reading of the statement of PW-7 Muhammad Rafi complainant, brings out the material contradictions in his story regarding the presence and role of the appellant when read in the light of non-recovery of pistol and also the non-recovery of empties from the site. The alleged shot fired by Azhar Ali Shah from his pistol went amiss. Neither the pistol was recovered from Azhar Ali Shah nor was any empty retrieved from the site. Recovery of 06 pellets from the wall became insignificant on non-recovery of pistol and the empty and non-matching of the pellets with pistol or empty.
Similarly Muhammad Rafi, PW-7 and other supporting eye-witness claim that Azhar Ali Shah appellant to have entered the house by climbing the roofs of neighbours Mushtaq, Sadiq and Aslam who were not presented as prosecution witnesses to prove the entry of Azhar Ali Shah in the place of occurrence. PW-7 Muhammad Rafi also attributed 'butt' injuries on hamshad Bibi and Robina Khatoon from the pistol 'butt' of the appellant. Shamshad Bibi appearing as PW-9 deposed to have received injuries from convict Anwar Ali Shah and not the appellant Azhar Ali Shah. Robina Khatoon was not produced by the prosecution to support the prosecution story. The learned trial Judge, therefore, correctly concluded that the factor of "non-recovery of weapon of offence from the accused Azhar Ali Shah, not only remained unresolved but rather created sufficient doubt as to the presence of the accused Azhar Ali Shah, at the time of the occurrence or even his participation in the manner alleged by PWs".
16.The findings of the learned trial Judge could not be said to be the result of in-applicability of mind, misreading, misinterpretation or misapplication of mind and evidence. His observations and grounds for acquittal of the appellant Azhar Ali Shah were recorded on the basis of sound and cogent analysis and appreciation of the evidentiary principles of criminal jurisprudence.
17.For conversion of judgment of acquittal into a conviction judgment, the principles have long been settled and ate being followed by the Courts in the sub-continent. This Court in the case of "Thayatullah us. The State (PLD 1979 S.C. 956) recognized that 'Superior Courts have consistently laid down certain defined and fundamental principles for regulating their jurisdiction in the case of acquittal appeals".
18.These fundamental and regulatory principles were defined and endorsed from time to time. In the case of "Sheo Swarup and others Vs. Kind Emperor" (AIR 1934 Privy Council 227 (2), it was held that:-- ------the High Court should and will always give proper weight and consideration to such matters as--
(1) the views of the trial Judge as to the credibility of the witnesses; (2)the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3)the right of the accused to the benefit of any doubt; and (4)the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses".
In 'Mirza Noor Hussain. Vs. Farooq Zaman and 2 others" (1993 SCM R 305), it was observed that:-- "--------the judgment of the, trial Court is supported by sound reasons and this Court cannot substitute its own findings in place thereof unlessthat the findings------are `artificial', `shocking', `ridiculous', `based on misreading of evidence', `and leading to miscarriage of justice'."
This Court in the case of 'Yar Muhammad and 3 others, us. The State" (1992 SCM R 96) observed that:-- "Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under Section 417 Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."and "that the judgments of the learned Sessions Judge is perverse or is a result of complete misreading of evidence or that it is due to incompetence, stupidity or perversity that he has reached any distorted conclusions as to produce a positive miscarriage of justice".
This judgment also instructively discussed 'Ahmed Vs. The Crown" (PLD 1951 Federal Court 107) and "Abdul Majid. Vs. Superintendent of Legal Affairs, Gout. of Pakistan" (PLD 1964 S.C. 426) respectively quoting that:-- "Before an order of acquittal is reversed it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. If two conclusions were equally possible an order of acauittal should not have been reversed." AND "where he (Trial Judge) has read the evidence fairly, and has formulated grounds of doubt which are not perverse or were illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings". (Underlining supplied).
19.In the case of "Feroze Khan. Vs. Fateh Khan and 2 others" (1991 SCM R 2220), held:-- "-------------- at best it could be a case of mere difference of opinion regarding appreciation of evidence but this alone is not a good ground for setting aside an acquittal------------ In the case of Ghulam Sikandar and another. Vs. Mamaraz Khan and others" (PLD 1985 SC 11) another test was importantly pronounced by this Court as follows: "-------- The Courts often in such like difficult situations, have applied test of "impossibility" by asking question; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place." and "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." and "The important test visualized in these cases, in this behalf was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous". (Underlining supplied).
20.The object of reproducing the accepted judicial principles and the parametrical tests for converting the judgment of acquittal into a judgment of conviction and vice-versa, was to scrutinize the present case through their prism. On analysis of the testimony of witnesses and the record, as above discussed, the trial Court's view appears to be reasonable, sound, natural logical and in-consonant with the case evidence. Contrarily, the learned Judges of Peshawar High Court did not apply the test of impossibility or that of imbalance to upset the trial Court's judgment of acquittal which in our view was neither perverse nor artificial, shocking, ridiculous, flimsy or suffering from distortion or misreading of evidence. With due respect to the High Court, we may observe that at best it could be a case of mere "difference of opinion" on the evaluation of evidence which is not a ground for depriving an acquitted accused of the judgment in his favour.
21. On applying the above referred principles of law, we are of the considered opinion that High Court was not justified in setting-aside the trial Court's judgment of acquittal dated 04.03.1998 and substituting the same with a judgment of conviction and punishment of the appellant. In view thereof, the impugned judgment dated 07.06.2001 passed by Peshawar High Court, Peshawar is set-aside in acceptance of the present appeal. The judgment passed by the trial Court dated 04.03.1998 acquitting the appellant is restored.
22: As observed in the short order passed in the case:-- "---------- the conviction and sentences recorded by the High Court are set-aside and the appellant is acquitted of the charges. He be set at liberty if not required in any other case."