1. ' SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from the order of a Division Bench of the erstwhile High Court of West Pakistan, Peshawar Bench, acquitting respondent Muhammau Hayat of the charge of murdering Muhammad Khan, son of Sher Ali. Leave was granted to re-examine the case in the interest of justice.
2. ' The incident took place at Dhok Bhirha Dakheli Budhyal within Police Station Tamman in the District of Attock, N.-W. F. P., on the 12th of December, 1965, at peshin time. Muhammad Hayat, who was accompanied by co-accused Muhammad Sadiq and Muhammad Khan, son of Haji Ghulam Muhammad, is said to have fired one shot with a gun at the deceased and killed him at the spot.
3. The three accused persons were tried by the Additional Sessions Judge, Attock at Campbellpur, and while respondent Muhammad Hayat was convicted and sentenced to transportation for life under section 302 of the Pakistan Penal Code, the other two were acquitted. On appeal before the High Court by Muhammad Hayat he too Was acquitted. There was a revision by Ghulam Muhammad (appellant herein), son of deceased Muhammad Khan, for enhancement of the sentence of the respondent and for retrial of the other two accused, but the revision was dismissed by the High Court.
4. ' The prosecution case may briefly be stated as follows:- ' About five months before the incident respondent Muhammad Hayat had beaten Ghulam Muhammad, son of the deceased, as the latter was found catching quails in the field of the respondent. About 2/3 months later the deceased had beaten respondent Muhammad Hayat and co-accused Muhammad Sadiq. The prosecution alleged these as motive for the crime. It may be stated here at once that the trial Court did not believe about the beating given by the deceased to Muhammad Hayat respondent and to co-accused Muhammad Sadiq and, therefore, there was no motive on the part of the respondent to commit the offence. On the day of the incident P. W. 12 Sardar Aulia Khan and one Sardar Mumtaz Khan alongwith some other persons had come from village Tamman to village Patwali for hare-hunting. In village Patwali P. W. 13 Muhammad Khan, son of P. W. 17 Mehram Khan, P. W.
14. Muhammad Iqbal, P. W. 15 Zumarrad Khan, P. W. 16 Muhammad Khan, son of Nur Khan, P. W. 17 Mehram Khan, Muhammad Khan deceased and respondent Muhammad Hayat and the two co- accused joined them in the Shikar. About peshin time the Shikar was declared closed by P. W.
5. Sardar Aulia Khan and Sardar Mumtaz Khan. The respondent and the two co-accused took leave from P. W. Aulia Khan and Sardar Mumtaz Khan and left for their village, white the remaining persons accompanied the two Sardars to see them off at the bus stop. ThereafIer the deceased and the prosecution witnesses left for village Patwali and when they reached a place known as Dhok Bhirha, they saw approaching them the said two co-accused armed with knives, and respondent Muhammad Hayat with a gun. The accused persons challenged Muhammad Khan deceased, and respondent Muhammad Hayat fired one shot at the deceased and he fell on the ground and died instantaneously. The spot witnesses tried to apprehend the accused but they were threatened and so they gave up the chase, and the accused left in the direction of village Patwali.
6. ' A first information report was lodged by P. W. Muhammad Khan at Police Station Tamman at a distance of 5 miles from the spot on the same day at 3-45 p.m., and it was recorded by P. W. 18 Ch. Feroz Khan, Sub-Inspector. The Sub-Inspector went to the spot and collected blood-stained earth, and recovered an empty shell of .12 bore Exh. P. 8 from there. On the 14th of December, 1965, he arrested Muhammad Hayat respondent and co-accused Muhammad Sadiq. Muhammad Hayat is said to have led to the recovery of a gun Exh. P.
9. The striker of the gun was found broken. It may be stated here that the fire-arms expert was of the opinion that the empty shell Exh. P. 8 was not fired from the gun Exh. P.
9. The gun and the empty shell, therefore, do not furnish any corroboration. The other accused, Muhammad Sadiq, is also said to have led to the recovery of a bandolier containing three live cartridges and his licence pertaining to the gun Exh. P.
9. The Investigating Officer also got a site plan Exh. P. C. And P. C./1 prepared by the Patwari. The other accused Muhammad Khan was arrested on the 22nd of December, 1965.
7. ' The post-mortem report disclosed the following injuries upon the body of the deceased:-
(1) Punctured wound on left side neck 1/2" x 2' x 1' blackened.
(2) Punctured and lacerated wound on the back of the neck in the middle 1/2' x 4' x 1' slightly blackened.
(3) Four punctured and lacerated wounds on the back of the left shoulder blade each 4' x going into the chest cavity. Each at a distance of 2' from each other. One was passing above the midpoint of left clavicle.
(4) Punctured wound on the back of left chest near the outer border of left scapula in the middle.
8. This was going into margins, blackened.
(5) One punctured wound on and above the midpoint of left clavicle x 4', left clavicle was fractured at middle.
(6) One punctured wound on side front of loft neck 1/2 x 4",
(7) Punctured wound on the mid front of the neck, 4' x 1'.
9. ' In the opinion of the doctor death was due to shock and hemorrhage as a result of injuries Nos. 1, 2, 3 and 4. Injuries Nos. 5, 6 and 7 were exit wounds of Nos. 1 and 2 and one wound from No,
3. Injuries Nos. 1 and 2 were dangerous to life whereas injuries Nos 3 and 4 were fatal and sufficient to cause death in the ordinary course of nature. All the injuries were anti-mortem and were caused by a fire-arm.
10. ' The accused persons pleaded not guilty to the charge of murder framed against them.
11. Respondent Muhammad Hayat in his statement before the Inquiry Magistrate denied having beaten Ghulam Muhammad, son of the deceased and stated : 'It is incorrect and I own no land as alleged". He further stated that the alleged incident in which the said beating had taken place was no time for hunting quails. He continued to say that he was implicated due to enmity with the prosecution witnesses.
12. ' The prosecution relied upon the ocular evidence as furnished by the five witnesses, namely, P. W.
13. 13 Muhammad Khan, P. W. 14 Muhammad Iqbal, P. W. 15 Zumarrad Khan, P. W. 16 Muhammad Khan, son of Nur Khan, and P. W. 17 Mebram Khan. P. W. 13 is son of P. W. 17 Mehram Khan, and is son-in- law of the deceased. P. W. 15 Zumarrad Khan is son of aunt of P. W. 13 Muhammad Khan. The wife of P. W. 16 Muhammad Khan, son of Nur Khan, is aunt of P. W. 14 Muhammad Iqbal. P. W. 16 admitted that his wife was daughter of aunt of Mst. Malkani, widow of the deceased. So far as the accused persons are concerned respondent Muhammad Hayat in course of his examination under section 342 of the Code of Criminal Procedure by the Additional Sessions Judge stated in answer to a question whether it was a fact that accused Muhammad Khan was his uncle, that it was correct that Muhammad Khan accused was cousin of the respondent's father.
14. ' Evidently the spot witnesses are related Inter se, and they are also related to the deceased. It appears further that the relation of some of these witnesses with at least two of the accused persons, namely, respondent Muhammad Hayat and co-accused Muhammad Khan was likely to be strained. One Muhammad Khan, son of Mehr Khan, is son of aunt of P. W. 14 Muhammad Iqbal.
15. This Muhammad Khan was tried for the murder of his daughter. In this case co-accused Muhammad Khan and one Feroz had appeared as prosecution witnesses against Muhammad Khan, son of Mehr Khan. P. W. 15 Zumarrad Khan admitted that Muhammad Khan, son of Mohr Khan, was his aunt's son. The prosecution witnesses having been inter-related, the figuring of Muhammad Khan accused as a prosecution witness against Muhammad Khan, son of Mehr Khan, was likely to have created ill-feeling between Muhammad Khan accused and his nephew respondent Muhammad Hayat on the one hand and the prosecution witnesses on the other and this could not be disregarded. Such a situation required some amount of corroboration before the evidence of the spot witnesses could be accepted safely. In the case of Nazir and others v. State (1), it has been observed as follow:- " But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never he accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But, he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes.
16. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration."
17. ' The learned Judges of the High Court were, therefore, right when they sought corroboration of the evidence of the spot witnesses.
18. ' The trial Court had observed in course of its judgment: "What actually appears is that Muhammad Hayat accused was at some raised place.
19. ' The eye-witnesses being relatives of the deceased have a tendency to support the prosecution having seen the occurrence from close quarters. The fact that the Investigating Officer has not shown in the site plan from where Muhammad Hayat accused fired at the deceased also goes to show that the deceased was ahead of the P.W.S. At some distance when he was fired at by the accused and he retraced his steps towards the P. Ws. Followed by Muhammad Hayat accused and fell in their presence at the spot. The Investigating Officer has mentioned that there is kassi at a distance of 18 karams to the east of the place of occurrence. Muhammad Hayat accused might be concealing him over there and on seeing the deceased he got on the bank of the kassi and fired at him. The P. Ws. Do not mention this fact and that shows that they saw the deceased being hit and fallen with Muhammad Hayat accused following him closely. 'Otherwise, there was no reason that they should not give the correct position of the accused from where he fired to the Investigating Officer and the patwari who prepared the site plan."
20. ' P. W. 18 Ch. Feroz Khan, Sub-Inspector, stated in his evidence that he had got prepared site plan Exhs. P. C. And P. C/1 in duplicate from the patwari. He further stated: "I have not shown the place in the site plan from where the three accused had fired at the deceased and were present. The witnesses told me the place from where the accused had fired. I did not show that place as it was mentioned in the statements of the witnesses. They pointed out that spot but that amounted to their statements. I did not tell the patwari to point out the place of the accused in the site plan as stated by the witnesses. I did not tell the patwari to point out those positions in the site plan where the witnesses were stating to be present. I had told the patwari that he should prepare the site plan as instructed by the P. Ws. And show the place which they point out. I had instructed the patwari to show the position of the witnesses in the site plan from where they saw the occurrence." P. W. 7 Abdul Aziz, patwari, said he had prepared site plan Exhs. P. C. And P. C/I in duplicate at the instance of the police and pointing out of the witnesses. All the eye-witnesses had stated that the place from where respondent Muhammad Hayat had fired at the deceased was pointed out by them to the Investigating Officer. On reference to the site plan it appears that the place wherefrom the witnesses had seen the occurrence had been mentioned, and the direction wherefrom the accused had come had also been mentioned, but the spot wherefrom respondent Muhammad Hayat shot had not been mentioned. In these circumstances the learned Judges of the High Court found that the absence of the place from the site plan from where the respondent had allegedly fired at the deceased would show that none of the eye-witnesses had seen the person firing the shot at the deceased. In my view the learned Judges of the High Court arrived at this finding not only upon their own appraisement of the evidence, but also upon having given due consideration to the opinion of the learned Additional Sessions Judge who have had occasion to see them deposing. This finding is neither unreasonable nor arrived at by the disregard of any accepted principle regarding the appreciation of evidence.
21. ' Again, all the eye-witnesses had stated that the respondent and the co-accused had come from the front, and fired a shot at the deceased. The medical evidence indicates that the deceased was hit from behind. Furthermore, of the four entrance wounds, three of them, namely, injuries Nos. 1, 2 and 4 had been found blackened, while injury No, 3, namely, four punctured and lacerated wounds on the back of the left shoulder blade each 1/2 and at a distance of 2 from each other going into chest cavity, had not been found blackened. The doctor stated in cross-examination: "It is evident that the fire was from the back side as the wound of entry and exit show". The evidence of the doctor also disclosed that the injuries found upon the deceased were the result of more than one shot ' There is another circumstance which should be borne in mind. Two of the co-accused upon the evidence of these very spot witnesses had been acquitted by the trial Court, and their acquittal was not interfered with by the High Court.
22. ' The spot witnesses having been related to the deceased, and having had some valid reason to be inimical towards the said respondent, it was indeed necessary to find some corroboration of their evidence before they could be accepted. As I have noticed already, the recovery of a gun at the instance of the respondent was not and could not be used as a piece of corroboration. The only other circumstance which could furnish corroboration was the medical evidence. This too, as may have been noticed already, furnished no corroboration.
23. The result of my examination of the case is that the prosecution has failed to prove the alleged motive for the crime. The spot witnesses are not only related to the deceased but also have had some reason to be inimically disposed towards Muhammad Hayat respondent and, therefore, required corroboration. There is, however, no corroboration of thei 4 evidence. The evidence of the spot witnesses were not accepted by the trial Court so far as the other two co-accused are concerned, and the High Court did not disagree with the trial Court. The medical evidence does not appear to support the manner of occurrence particularly the prosecution case that only one shot had been fired at the deceased.
24. ' In the case of Noora v. State (1), this Court has observed as follows:- " As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re-examination of the evidence untrammelled by the opinions of the Courts below. We cannot merely content ourselves by saying that we will not interfere with a concurrent finding of fact, even if it appears to us that that concurrent finding was clearly based upon a misconception of the facts or was so patently impossible or was so clearly opposed to physical laws that to leave it unaltered would amount to perpetuating an injustice. In such circumstances this Court ought not to have any hesitation in interfering with such a concurrent finding."
25. The present appeal is one from an order of acquittal passed by the High Court and unless I am in a position to say that the decision of the High Court is perverse or unreasonable, I would be slow to upset the order of acquittal. Applying the principle lay down in the case of Noora v. State, and having given due weight and consideration to the opinions of the Courts below I am satisfied that the findings of the High Court are reasonable, and were not arrived at by disregard of any accepted principle regarding the appreciation of evidence. The learned Judges of the High Court have rightly given the benefit of doubt to respondent Muhammad Hayat.
26. ' I would, accordingly, dismiss the appeal.
27. ' MUHAMMAD YAQUB ALI J.-I agree.
28. ' ANWARUL HAQ, J.-I agree.