SHAFI-UR-REHMAN, J.-These two criminal appeals, one (Cr. A. 41 of 1978) by the complainant, the father of the deceased, and the other (Cr. A. 42 of 1978) by the State, are directed against a judgment of acquittal recorded by the Peshawar High Court on 24-6-1977 whereby the two respondents who were brothers were acquitted of the charge of murdering Syed Abdul Wadood on 7-9-75 in the village mosque Mangalwar in the area of Swat. Their sentence of death and life imprisonment were set aside.
2. The prosecution case was that there was no particular background of enmity between the parties except for the events of the day of occurrence. There was a dheran (a refuse dump) close to and in front of the house of the complainant and the deceased which was utilized, among others, by the two respondents for piling rubbish. When the rubbish started overflowing, the complainant and the deceased tried to limit it by placing stones around it towards the side of the entrance door to the house. It is said that the respondents objected to it, picked up a quarrel over it and abused the deceased and the complainant for what they had done by placing the stones. The complainant and his son retreated to their house claiming that it was their property and they had a right to protect their house from refuse which otherwise would block their entry to the house. The two respondents departed from there. The same evening at about sunset, maghrib prayer time, the deceased went to the mosque known as masjid Syedian for his evening prayers and started performing ablutions ("chahar andam"). The complainant performed the ablutions at his house and also came to the mosque for offering prayers. As the complainant entered the mosque he found the two respondents standing in the door of the mosque. On the arrival of the complainant, Kaki Gul respondent asked his brother co-accu sed Said Mian to fire at the deceased whereupon Said Mian fired a shot at the deceased who was hit and died at the spot. Kaki Gul was also armed with a '303 rifle and both escaped from there. The persons present in the mosque for the evening prayers witnessed it. None, not even the complainant went to lodge the report, though the police station happened to be six miles away and connected by a metalled road. Aman Ullah (P. W. 8), then an A. S. 1. Posted at Police Station Mangalwar , learnt from certain undisclosed quarters near about 8.30 p. m. That a murder had taken place in the village. He boarded a truck alongwith seven constables who were with him on patrol duty and arrived at the spot, the village mosque, at about 9 p. m. He inspected the spot, saw the dead body and recorded the report lodged by Said Baghdad (P. W. 2) complainant at 9 p. m. On which a case was subsequentl y registered at the police station. The complainant made an application (Exh. P. M.) claiming at the risk even of a possible damage to the case lodged by him, that the autopsy on the dead body should be dispensed with. As the Police Officer Aman Ullah soon received information that the accused with their weapons may be present at their house or in the vicinity , he immediately rushed for them but returned on being unsuccessful in arresting them. As it was late in the evening (12.30 mid-night) and the next day happened to be the first of Ramazan and the recoveries could not be made during the night from the spot, he postponed not only the recoveries but the examination of the eye-witnesses under section 161, Cr. P. C. As well till next morning, the blood-stained earth from near the spot where the deceased was performing ablutions and the three pellets embedded in the wall at the height of 2J feet above the ground. He noted an entry wound on the front of the dead body of the deceased with no exit wound . He prepared the site plan. The accused ultimately surrendered on 12-9-
75. They denied their dispute over the dheran (refuse dump), the ill-will generated thereby and their having fired at the deceased and having caused his death. They stated that they were charged falsely on account of party factions in the village. As regards their absence after the occurrence till 12th September , 1975, they stated that they had not absconded but were engaged in labour elsewhere.
3. The learned Sessions Judge who tried the respondent found an explanation for the delay in lodging the report, considered ocular evidence trustworthy and inspiring and found corroboration of the prosecution case from the recovery of three pellets from the wall, the disk of a card-board from near that place, corresponding hole in the bunian and shirt of the deceased, and the abscondence of the respondents immediately after the occurrence till 12th September , 1975. He found the prosecution case fully proved against the two respondents and convicted them of the offence under section 302/34, P. P. C. And sentenced Said Mian to death as he had fired the fatal shot and Kaki Gul to life imprisonment.
4. The learned Judges in the High Court while considering the question of confirma tion of death sentence awarded to Said Mian and their appeals against conviction and sentence, found that the motive was not "so strong as to motivate the accused appellants to take the life of a young man", and held that "we are least convinced by the motive advanced by the prosecution for the commission of this crime". The delay in lodging the F. I. R. Was held by the learned Judges in the High Court to be inordinate and not properly explained. They felt that the time taken in lodging the report was, in fact, utilized for deliberation and for making out a case. They also felt from the discrepancies in the statement of the complainant that he was not at all present at the spot at the time of occurrence and had not witnessed it. By physically comparing the size of the pelle ts recovered from .The spot, the learned Judges concluded that S. G. Cartridge, ordinarily having nine such pellets had been used for firing at the deceased and the spread of the bullets did not explain the solitary injury that was found on the body of the deceased. It was either a case of a number of pellets entering the body in a bunch or of only one of the pellets entering so. In either case this feature was considered to be one detracting from the consistency of the prosecution case coupled with the fact that the exam ina--petition of the eye-witnesses under section 161, was deferred to the next day of the day of occurrence, a circumstance which materially weakened the case of the prosecution. The investigation was found to be unsatisf actory . The abscondence for five days was not held to be of any consequence and it was concluded that "the prosecution case has failed to bring home the charge to the accused- appellants".
5. Leave to appeal was granted to re-app raise the evidence for the purpose of satisfying whether the acquittal of the two respondents is in accord with the principles governing the safe administration of criminal justice.
6. The learned counsel for the complainant and the Assistant Advocate --General for the State, took us through the entire evidence and the other material made available at the trial and the view taken of it by the trial Court and then by the High Court. As regards the time of occurrence and the so-called delay in lodging the report, the background in which the occurrence had taken place, the place and locality where it had taken place and the practices prevalent there were all pressed into service. It was said that 18.50 hours was not the exact time of occurrence but it was inferred by the Police Officer recording the report for complying with the requirements of the F.
1. R. Form.
The complainant and the witnesses had not given that time, though they all were at one that it was just before the evening (maghrib) prayer time. There could, therefore, be no doubt with regard to the time of the occurrence irrespective of the hour and minutes recorded in the F. I. R. Or .The exact time when the sun sets in Manglewar , Swat. It was also demonstrated that before the merger of the Swat State into the province of N.-W . F. P. In 1971 and the extension of the laws to that region the people were accustomed to personal rule of the Wali and the dispensation of justice and the cognizance of offences was in a materially different manner which accounted for the attitude of the complainant that he would, in no case, go for lodging the report, though the dead body of his son might lie in the mosque for three days or more. The discrepancies relied upon and made the basis for doubting the presence of the eye-witnesses were, according to the two learned counsel, of minor character and had been so treated by the trial Court. Particular reference was made to the fact that the trial Court had found the demeanour of the witnesses and their statements to be intrinsically sound, creditworthy and inspiring. The so---called defects in the investigation were all explained by reference to the evidence on the record. What has been highlighted by the learned counsel for the appellants is that there was no serious enmity or ill-will which might have promoted a false charge against the respondents. The witnesses were disinterested and natural. The venue of the offence, was a public place and the time of the occurrence was also such that those attending to prayers would have been in the mosque. All this according to the learned counsel amply justified the trial Court in believing that the case stood fully proved against the two respondents beyond any shadow of doubt and the doubts found by the learned Judges in the High Court were all theoretical, somewhat conjectural, and at times wholly untenable.
7. As against this, the learned counsel for the respondents has, without challenging or doubting the powers of this Court to reverse an acquittal into conviction, drawn our attention to the limitations spelt out in various decisions of this Court and the attitude taken in handling appeals against acquittals recorded by the High Court. On the basis of the decision in Fateh Muhammad v. Bhaggu (PLD1960SC286), the learned counsel for the respondents has contended that unless it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges in the High Court have purported to acquit the respondents is at all suppor table, interference with acquittal will not take place. On the basis of the decision in Zafar A.I's case (PLD1963SC32 0), it has been said that unless there be violation of a principle with regard to the assessment .Of the evidence , the Supreme Court would not interfere with the acquittal. Similarly on the basis of the decision in Muhammad Khurshid v. State (HLD1963SC157), it has been said that unless the Court comes to the conclusion that the view taken by the High Court of the evidence against the respondents was either unreasonable or opposed to any principle of rule governing the appreciation of evidence, there would be no justification for subst ituting another conclusion for it.
Thereafter the learned counsel for the respondents has taken us through the same evidence and the reasoning of the learned Judges of the High Court to demonstrate that the conclusions drawn by the learned Judges were possible, could be drawn from the facts and circumstances of the case. Merely because a different view can be taken of the same facts would not justify interference with the acquittal.
8. In determining the intrinsic worth of the statements of the com--plainant and the eye-witnesses produced at the trial, the learned Judges have noted certain facts and given certain reasons. It was felt by the learned Judges that if the complainant had himself been present at the spot and witnessed the occurrence, he would not have been so desperate, frustrated or showed such lack of concern in the matter of lodging the F. I. R., irrespective of the practice that was prevalent in the days of the personal rule of Wali with regard to the cognizance of offences and the treatment of the culprits. There was no effort on his part to lodge a report. His statement showed two infirmities which affected his credibility as an eye-witness. When he arrived in the mosque, he found the two respondents already present and it was on his arrival that they fired at the deceased who had already come before. Such a waiting was considered-to be unnatural and not properly explained on the facts of the case. The other and a more important factor was that in the F. I. R. The complainant had stated that at the time of being fired at the deceased was standing at the place meant for performing ablutions. At the trial he improved that statement and said that the deceased was sitting and actually performing ablution and washing his feet when he was fired at. The presence of the complainant had not been specifically mentioned in their police statements by the other eye--witnesses. This according to the learned Judges made the statement of the complainant to be an eye-witness of the occurrence somewhat doubtful.
9. As regards the eye-witnesses who appeared to state about the commission of the crime, the learned Judges found that none of them was examined by the Investigating Officer when he arrived at the spot and after he had recorded the F. I. R. They were available. It was actually left to the complainant to bring them over the next morning for recording of their statements. It was in his company that they came and made the statements. Karim, one of the named eye-witnesses, was not produced and one Akhtar Jan (P. W. 7) not named in the F.
1. R. Was produced.
From this it was concluded by the learned Judges that time was afforded to the com--plainant to bring round the named witnesses and to substitute them where necessary support was found lacking.
What, it appears, proved decisive in the case at the stage of appeal was the factor that only one entry wound was found on the person of the deceased while three stray pellets were recovered embedded in the wall and it was not disclosed what was the extent of the spread of those three pellets recovered from the wall. By physical verification it was found that the pellets recovered were of S. G. Cartridge and S. G. Cartridge ordinarily has nine such pellets.
The absence of the other pellets could not be accounted for, nor a single injury on the person of the deceased. This left a considerable margin and the learned Judges inferred that having fired at from a distance of 8 paces such could not be the result.
10. We find that in the ultimate analysis this case involves re-appraisement of the evidence and the learned Judges in the High Court have not, in appraising the evidence, either violated any principle of law or ignored an material fact. They have drawn conclusions which, on one view of the matter , could be draw n and the conclusions so drawn do not suffer from any '4 patent error or exception. In the circumstances, even if we were to take different view on some of the matters, that would not justify interference with the order of acquittal which ensures, in the circumstances of the case, the safe administration of criminal justice. Both the appeals are, therefore, dismissed.