1. SALAHUDDIN AHMED, J.--This appeal by special leave is from and order of a Division Bench of the High Court of West Pakistan Lahore, acquitting the two respondents, and three co-accused persons, viz. Manzoor, Mohammad Khan alias Mamna and Nazar Mohammad of charges under sections 302/149 and 148 of the Pakistan Penal Code on the ground that there was no unimpeachable evidence of rioting or to connect them with the murder of Lai Khan son of Sardar A.I for which they had been convicted and sentenced by the trial Court.
2. The appellant is a private complainant, and he has obtained leave of this Court only against the two respondents, Lai Khan, son of Chanan, and Mohammad Nawaz. The leave has been granted to consider whether the acquittal of the two respondents was Sh based on reasonable ground, and whether or not the evidence L. Of Mamma and Mst. Bivi should have been believed as they were supported by the recovery of a blood-stained hatchet from each one of the two respondents.
3. The occurrence took place on the 29th November 1966, at rotiwela in the Chowk of village Dhak Police Station Khatha Saghral, District Sargodha, and was reported at 9 a.m. By P. W. Shah Nawaz, to Assistant Sub-Inspector of Police Abdullah Khan who was found present at the Railway Station, Dhak, at a distance of a few furlongs from the place of occurrence.
4. Lal Khan deceased lived in his Dera in the field. He also had a house in the abadi of the village Dhak. On the morning of the date of occurrence he came from his dera to his house in the abadi, - and at about rotiwela he went out to answer the call of nature. As he was returning to his house after having answered the caller of nature, and reached the lane near the house of one Falak Sher, the two respondents and their comrades who were armed with hatchets, emerged from their ambush and attacked Lai Khan deceased. Respondent Lai Khan, son of Chanan, gave the first hatchet blow to the deceased at the back of his neck, Respondent Mohammad Nawaz is said to have given the second hatchet blow to the deceased on the right side of his neck. The deceased fell down, and the three co-accused persons gave him hatchet blows. Lai Khan died on the spot., The occurrence is said to have been witnessed by P. W. 6 Mamna, P. W. 7 Mst. Bivi, and P. W. 8, Bhai Khan, and one Feroze who was not examined in the case.
5. The motive for the offence was stated to be a long standing enmity over the assault of a son of a sister of Lai Khan deceased and over the murder of an uncle of co-accused Manzoor for which Lai Khan deceased and some others were prosecuted but acquitted. The respondents and their companions were alleged to have committed the assault on the deceased in order to wreak vengeance.
6. Of the four witnesses P. W. 6, Mamna and P. W. 8 Bhai Khan and Feroze had been mentioned in the first information report. Foroze was given up as unnecessary. . P. W. 7, lust. Bivi was not mentioned at all in the first information report. Both the trial Court and the High Court disbelieved the evidence of P. W. 8, Bhai Khan. P. W. Feroze had been given up by the Public Prosecutor as unnecessary and therefore, not examined as a witness in the case. The prosecution was, therefore, left with the evidence of P. Ws. Mamna and Mst. Bivi. P. W. Mst. Bivi lived 132 feet away from the place of occurrence. She has stated in her evidence that on hearing the alarm she came out of the house and saw the occurrence. She fell on the body of Lai Khan and then the assailants went away. Her chaddar got smeared with blood and it was seized by the Police. If Mst. Bivi had played the part that she described in her evidence, P: W. Mamna who had been specifically, asked by her to report about the murder to the sons of the deceased, could not have forgotten to mention about her to P.
7. W. Shah Nawaz, and the latter if told, could not have omitted to mention her in the first information report lodged by him. Her name does not find mention even in the Inquest Report although the names of P. Ws. Mamna and Bhai Khan, and Feroze are mentioned there. Furthermore, there is material discrepancy as to the date of the seizure of her blood-stained chaddar. According to her evidence before the trial Court she said that her chaddar was seized on the same day, i.e., the 29th November 1966, when her statement was recorded by the Police. On reference to the seizure list, however, we find that the chaddar was in fact seized on the next day, i. e., the 30th of November 1966. Before the committing Court she said that the chaddar was seized on the next day. The chaddar was not sent to the Chemical Examiner and Serologist and, therefore, the origin of the blood on it could not b;. Ascertained. In these circumstances we are unable to find fault with the learned Judges of the High Court in doubting the fact that Mst. Bivi had witnessed the occurrence.
8. The appraisement of her evidence by the High Court cannot be described as perverse.
9. As regards P. W. Mamna, it may be stated that his evidence implicating the three accused persons, Manzoor, Mohammad Khan and Nazar Mohammed, has not been relied on by the trial Court as well as the High Court. The trial Court was of the view that his presence at the place of occurrence was not natural. The learned Judges of the High Court agreed with the trial Court on this point. The trial Court, however, relied on P. W. Mamna because it thought that his evidence was corroborated by P.
10. Ws. Bhai Khan and Mst. Bivi as well as by the medical evidence and the evidence of recovery of hatchets from respondents Nos. 1 and 2 and two other accused persons. Both P. Ws. Bhai Khan and Mst. Bivi having been disbelieved by the High Court, their evidence could not be relied on for the purpose of corroboration. The medical evidence, far from affording corrobo--ration, appears to have contradicted his evidence. According to him the occurrence took place when the deceased was returning after having answered the call of nature. The medical evidence, however, shows the presence of 2 oz. Of urine in his bladder, besides a small quantity of faecal matter in his small and large intestines. It has been contended on behalf of the appellant that even after evacuation it was possible to retain some quantity of faecal matter and urine. Even though the Doctor, who held the postmortem examination was not available for examination as a witness, 'the prosecution could have examined some other medical expert to prove its contention that in spite of evacuation the deceased was likely to retain two ounces of urine and some quantity of faecal matter. The onus lies on the prosecution to prove its case beyond any reasonable 'doubt. In the presence of the aforesaid medical evidence it cannot be said that the prosecution has succeeded in proving its case beyond any reasonable doubt: Furthermore, the evidence of P. Ws. Mamna as well as the first information report show that in all five injuries were caused to the deceased. The medical evidence, 'however, shows eight injuries. In the absence of the doctor it was not possible to prove whether the eight injuries could be the result of five blows. This omission must go in favour of the accused rather than the prosecution.
11. We now come to the recovery which the High Court held was dubious. It appears that the hatchet recovered at the instance of respondent Mohammad Nawaz was from a khola which was accessible to other persons. Similarly a hatchet was recovered at the instance of respondent Lal Khan from his kotha, the shutters of which were found open. The High Court's appreciation of evidence on this point cannot be described as unreasonable.
12. We have already noticed that Feroze Khan though named as an eye-witness, was not examined, and no explanation was given for his non-examination. Under section 114 illustration (g) of the Evidence Act, the Court may draw an inference adverse to the prosecution on account of the non- examination of the witness. We are unable to agree with Sh. Mohammad Shafi, learned Advocate appearing on behalf of appellant that it was entirely for the prosecution to determine who it is going to examine as a witness and, therefore, the non-examination of Feroze cannot lead to any adverse inference against the prosecu--petition. In support of his contention he has relied on Allah Yar v. The Crown (PLD 1952 FC 133). In the case under report there was reason to believe that the particular witness named in the calendar was not a truthful witness. He had said before the committing Court that he knew nothing about the occurrence and was in a different village when it took place. It was held that the prosecution exercised its discretion rightly in declining to call the witness in evidence. In this case reliance was placed on the decision of the Privy Council in the case of Malak Khan v. King Emperor (I L R 72 1 A 305). The Privy Council made the following observations: "It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution,. But important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of Counsel for the prosecution and though a Court ought, and no doubt will take into con--sideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witness."
13. These observations are in no way inconsistent with the provisions of section 114, illustration (g) of the Evidence Act. In the facts and circumstances of the case the Court could and 'should have drawn an inference adverse to the prosecution.
14. No violation of any principle governing the assessment of the evidence before the Court has been alleged. Nor can it be B contended that the findings of fact arrived at by the High Court are such as may be described as `shocking to the judicial conscience'. The appellant has not succeeded in demonstrating with certainty that none of the grounds upon which the learned Judges of the High Court purported to acquit is at all supportable. Vide Fateh Mohammad v. Basu (PLD1960SC286) and Siraj Din v. Kala (PLD1964SC26).
15. The appeal is accordingly dismissed.