1. ' MUHAMMAD AFZAL ZULLAH, J.-These appeals by the State and the complainant in a do murder case, on grant of leave to appeal on the main ground of material irregularities, arise in the following circumstances.
2. ' Bakhtiar appellant reported an F. I. R. To Police at 1-45 p.m. On 6-9-1974 that at 1-30 p. m. The party of respondents (and Tariq Saeed) attacked with fire-arms the complainants' party and injured Noor Hassan, Abdul Hassan and Fazal Qayyum outside Qadri Hotel, Kemari, Karachi. The former two died and the third Fazal Qayyum later appeared as injured eye-witness Besides several other eye- witnesses were mentioned in the F.I.R.-some named, others unnamed. At the trial amongst other, evidence was sought to be led of motive, ocular account; recovery of empties and matching fire- arm and, circumstantial including the recovery of a Jeep from respondent No. 1, which allegedly was used in the commission of the crime. Defence plea was of denial, innocence and false implication.
3. ' The learned trial Judge acquitted all the accused. Appeal and complainant's revision, against acquittal, were dismissed by a learned Division Bench of the High Court on 4-6-1981. Both the learned Courts proceeded on the assumption that there were several contradictions between the depositions at the trial and the statements recorded by the police under section 161, Cr. P. C.
4. Besides this main consideration, some other circumstances also prevailed with them. The learned Judges in the High Court also attempted to summarize the points (in paper-book Vol. I, pages 67- 69 of the impugned judgment).
5. ' More than one counsel have argued at length, from each side. Prosecution led by Mr. Ijaz Hussain Batalvi took pains with the help of elaborate charts to demonstrate that incorrect police statements were put to the witnesses, in a wrong manner, without proper, confrontations and, the investigating officer's statement in this behalf, has been recorded and used in an illegal manner.
6. He also pointed out several instances of misreading of record and evidence after making due comparisons in Court. His concluding plea was that but for these failures during the trial and appeal in the High Court, it was a case of conviction ; and, that it could be recorded by this Court, with award of appropriate sentence.
7. ' The defence on the other hand, led by Mr. Muhammad Hayat Junejo, strenuously tried, with the help of elaborate charts, that even if what are stated to be correct statements, were put to the witnesses and if they were duly confronted, as suggested by the prosecution during the trial and argued in this Court, it would not have made much difference; because, same contradictions on vital points besides others, would have emerged with damaging reaction on the prosecution story and the manner of occurrence. Although no appreciable effort was made by the. Defence to show that there was no misreading, an attempt was made to show that if all the points noted and ignored by the learned Courts below are considered in a comprehensive manner by this Court, the result would be acquittal of all accused, including those three who had been attributed the main role from the prosecution case. Mr. Junejo also cited one line of cases which supported his argument in this behalf without denying that there are several cases which support the other point of view. As would be presently shown it is not necessary for us to go into this question.
8. It is most painful to see very close relations pitched against each other in this case. No doubt both sides, it seems from record and admissions, are highly influential parties. It might have been due to this that attempts seem to have been made to divert the smooth flow of stream of justice, at the initial stage before the trial. There is sufficient guidelines in the governing precedent and the law, that the Courts would not be deterred by reaching their own correct conclusions notwithstanding the incompleteness of stories, statements, and records from either side-private or public, individual or otherwise. It is also natural(besides danger of aforementioned influences that in cases involving deep enmity or even strong adversary/partisan positions that each side would be interested in withholding that part of the case which goes against it. It is for this vital reason amongst others, that the Legislature duly provided the following definition of, what the Courts would hold as, "proved"; section 3 of Evidence Act .
9. "Prove d.-A fact is said to be proved when, after considering the matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
10. ' It is significant that in this definition one requirement is of consideration of all "matters" which carries a wider connotation ; wider than "evidence", its 'statements' and the 'documents'.
11. Circumstantial deduction reaching 'probability' is a mental cognition which leads to "supposition" regarding existence of a fact. This the law permits as an alternative to positive "belief" in its existence. 'Probability' is not lower than 'likelihood" which is higher than a mere possibility, a surmise or a conjecture. And it is not a very difficult task to distinguish a 'probability' from conjecture and even possibility. Thus the Courts when applying some artificial rules of appreciation of evidence, which do not form part of statutory guidance, must also attach due and purposeful importance to the above aspect of a statutory mandate. It will be of some advantage to conclude this by reproducing from Monies Law of Evidence (1974 Edition, page 27) :" The authors of the Evidence Act in their wisdom did not mention the term "evidence" while defining the words "proved" and "disproved"; evidence means only statements and documents. "The Court is therefore not bound to look for its findings on the "evidence" alone as defined in the Evidence Act, but has to see to the high probabilities regarding the existence or non-existence of a fact after considering 'the matter before the Court".
12. ' In this case it is admitted that the defence complained about authenticity of the police statements recorded under section 161, Cr. P. C., of which copies were initially supplied to them.
13. Thereafter, without enquiry and any finding, the Court supplied to them (on their asking) copies described as khalasas (summary) of the said statements, copied from the Diaries, with caption "under section 161, Cr. P. C." Then the prosecution protested strongly stating that the second supply was of non-genuine record. Moreover, Fazal Qayyum's (injured P. W.) statement under section 161, Cr. P. C. Was even then stated to be missing though its khalasa' did exist and was supplied.
14. ' It was not difficult to discover the correct Police statements. We procured one full set carbon copies thereof, from a Higher Police Office. If this did not then occur to anybody, the missing record could be reconstructed. For some aspects of reconstruction no doubt a discussion is available in pares. 6 and 7 of the judgment in Mst. Khudija Begum v. The State and others ; but observation in para. 8 thereof would need modification with reference to the definition of 'proved' in addition to that of 'evidence' and what is being held in this case. If an elaborate enquiry was not considered necessary or advisable, the Court could give a reasoned finding about which set of copies 8 was "proved" on the "probabilities" in pursuance of the definition of the word "proved" in section 3 of the Evidence Act.
15. ' Next, it has been discovered that the Investigating Officer (it seems under some invisible pressure or at. Least under badgering of the worst type which the Courts should never allow the counsel for either side to do) made blunders in reading the copies of 'statements, when the defence tried to prove them through his deposition. The only explanation by Mr. Muzaffar, who was then one of the defence counsel, that it was the duty of the public prosecutor to correct the witness, if something wrong was put to and thus elicited from the witness (because as has been represented from defence side, it was a practice to do so), is to say the least, not even worth consideration. It was the duty of the counsel of both sides that the witness read the record ' correctly. And above all the learned Presiding Judge should have supervised and checked it.
16. Neither under the Criminal Procedure Code nor the Evidence Act, he is to sit as a mere spectator.
17. He is, even under the adversary system of law required to actively participate in the proceedings with full consciousness of what goes on record. Dependence on others can result into what happened in this case. Same comment would apply to feigning or real, turning of deaf ears, when the Investigating Officer protested that some documents being put to him, purporting to be under his signatures, were not so in reality.
18. The third major argument regarding police statements is that even the disputed copies were not put to the witnesses in a proper manner so as to confront them in accordance with law, if at all there were noticeable conflicts.
19. ' The only explanation from defense is that is a practice not to invite attention of the witness to properly marked/exhibited statements or parts thereof (e. g. 'portions marked A to A or B to B in copy of police statement Exh. D. A. Etc.) This, apart from being unfair to the witnesses, to the prosecution and the defense, is not in accord with the provisions of section 162, Criminal Procedure Code and 145, Evidence Act. Same question having been raised earlier was adequately answered in Shah Nawaz and others v. The State . We approve this authority and expect that no time would be lost in following the same.
20. ' The foregoing serious irregularities resulted in a failure to afford opportunity to witnesses to explain their assumed previous, so-called contradictory, statements. All the foregoing circumstances and the reliance on the same, for deciding a case on a capital charge, has resulted in serious prejudice and miscarriage of justice.
21. ' Further, there are misreading of police statements as also of the evidence led at the trial. We after careful examination of each one of them and having gone through the entire relevant record cannot countenance them on the assumption (as made by the defence before us) that they are1 2 inconsequential. They have also resulted in miscarriage of justice. Due to all these reasons it is a fit case for retrial. And for this reason, we have avoided any further discussion on the misreadings of various records and statements so as to prevent even the slightest possible prejudice during the retrial; which shall be from the stage of giving relevant copies to the defence in accordance with the law. We have directed sealing of the police carbon copies received from the Higher Police Officer. Some of the copies are even mouth eaten and , contain prima facie circumstantial stamp of genuineness. They shall be opened only during the retrial. It appears as if due to some arrangement, both the State and the complainant have not appealed against Tariq Saeed. This remand order even though otherwise an open one, would neither be used against that accused nor, this circumstance shall be used in favour of the other accused.
22. ' We accordingly accept these appeals, set aside the impugned judgments and remand the case for a fresh trial by a learned Judge other than who decided the case earlier.
23. ' Records shall be transmitted within a month. All the respondents shall appear before the learned Sessions Judge concerned within 45 days from today, i. e. 26-1-1983. Their bail surety bonds shall operate for their benefit as also against them, till the learned trial Judge passes fresh order in that behalf in his discretion, on fresh applications to be made by the accused regarding their appearance/custody/bail.
24. ' Before closing this judgment, we would like to clarify that the arguments addressed from both sides on details of the merits of the case against the' respondents, with effort to obtain final judgment thereon from this Court, have not been noted with a view to avoid prejudice during the retrial. One important aspect amongst others, of this case is the objections about record of evidence and non-availability of opinion of the learned Courts below on a correctly read undisputed record. In these peculiar circumstances, it would be unfair to either party to deprive it of right to approach higher forum after the decision by the trial Court on properly constituted record and proceedings. PLD 1971 B .1 19 PLD 1959 Kar. 383