1. ' WALI MUHAMMAD KHAN, J.---Mst. Roheeda widow of Faqir Muhammad deceased, through leave of the Court, has challenged the order, dated 14-1-1988 passed by the Sessions Judge, Peshawar whereby Khan Bahadur respondent No,1 and his brother Jahanzeb were acquitted and that of the Peshawar High Court dated 29-12-1988 dismissing the appeal filed against it by the State.
2. Jehanzeb has not been arrayed as respondent as he has since been murdered. The leave granting order is to the following effect: "The normal rule is what has been submitted by Mr. Zahoorul Haq but more important than that is the administration of justice and for that matter in very exceptional cases this Court has been granting leave to appeal and we are of the view that this is a fit case for reappraisal of the evidence especially the ocular testimony."
3. ' The facts of the case resulting in the instant tragedy are that on 21-12-1982 at 21-50 hours Waris Khan complainant (P.W.15) alongwith his brother Faqir Muhammad deceased, Abdul Matin deceased, Ain Khan (P.W.16) and Imroz Khan (abandoned P.W.) were going from Lahori Gate towards their house situated in Gariban Colony and when they reached near Koocha Taj Muhmmad, accused/respondent Khan Bahadur, his brother Jahanzeb (since dead) and other brother Aurangzeb absconder, armed with Klashnikov started firing at the two deceased Faqir.
4. Muhammad and Abdul Matin, whereof Abdul Matin fell down dead on the ground while Faqir Muhammad received fatal injuries. The complainant rushed towards the roadside and brought a motor rikshaw within 10/15 minutes of the occurrence and lifted Faqir Muhmmad, then injured, in his lap and removed him to the Lady Reading Hospital, Peshawar through the rikshaw while Ain Khan, P.W.16 and Imroz Khan stayed behind at the spot for looking after the dead body of Abdul Matin deceased. Faqir Muhammad succumbed to his injuries en route to Lady Reading Hospital in the lap of the complainant. Abdul Ali, A.S.I. (P.W.11) who was on duty in the casualty ward was informed of the occurrence by the complainant and he recorded Murasila Exh.PA./1 which was incorporated in the F.I.R. Exh.P.A. The motive disclosed by the complainant is that the father of the accused, namely, Malik Abdul Latif was murdered about 9/10 years back and the accused suspected the deceased Faqir Muhammad of having a hand in the said murder.
5. ' Abdul Ali, A.S.I., after recording the Murasila informed the staff of the Police Station Gulbahar on telephone about the occurrence and directed them that another dead body was lying on the spot.
6. He then prepared the injury sheet Exh.P.D./1 and inquest report Exh.P.D./2 of Faqir Muhammad deceased and sent the dead body to the mortuary under the escort of Nizamuddin Constable.
7. ' On direction from S.H.O., Ejaz, A.S.I. P.W.17 rushed to the spot where Ain Khan, P.W.16 and Imroz Khan were already present. On their pointation, he prepared the site plan Exh.P.J. With all its footnotes correctly. He recovered 15 empties of Klashnikov Exh.P.15, 4 pieces of lead bullet Exh.P.13 and five spent bullets Exh.P.14 from the spot and took them into possession and sealed them vide memo.
8. Exh.P.C. He noticed a bulb of 100 Watts Exh.P.12 lit on the main gate of the house of Haji Taj Muhammad, adjacent to the scene of occurrence and took the same into possession vide memo.
9. Exh.P.D. He also picked up blood-stained earth from the places of the two deceased and took the same into possession vide memo. Exh.P.B. He recorded the statements of P.Ws. Ain Khan and Imroz Khan under section 161, Cr.P.C. On the spot. Since all the accused were not traceable warrants, under section 204, Cr.P.C. Were obtained against them from the Ilaqa Magistrate and thereafter proclamations under section 87, Cr.P.C. As well and got them served according to law. A report from the S.D.O. Wapda regarding the loadshedding was also obtained and placed on the record (Exh.P.W.17/3). All the accused went into hiding and remained absconders for a long time. However, Khan Bahadur and Jehanzeb were arrested on 20-9-1986 whereas Aurganzeb is still at large. After the completion of the investigation challan against them was submitted to the Ilaqa Magistrate who sent up the accused for trial before the Sessions Court. Necessary charge sheet was framed against them and after recording of the evidence, accused Khan Bahadur and. Jahanzeb were acquitted of the charges by the trial Court vide its order, dated 14-1-1988.
10. ' However, perpetual warrants of arrest were issued against Aurangzeb. The State filed an appeal against them but that too, was dismissed vide the impugned order. Hence the instant appeal through leave of the Court.
11. ' We have heard Ch. Abdul Saleem, Advocate for the appellant and Mr. Ijaz Hussain Batalvi, Senior Advocate assisted by Mr. Jehanzeb Rahim, Advocate for the accused/respondent No,1, and Mr. Muhammad Jamil, Advocate for the State/respondent No,2 and have thoroughly perused the record of the case. As discussed above, the .Prosecution in support of its case relied upon the ocular testimony of Waris Khan, P.W.15 and Ain Khan, P.W.16 and in corroboration therof placed explicit reliance on the recovery of electric bulb of 100 Watts (Exh.P.12) from the main gate of the house of Haji Taj Muhammad close to the scene of occurrence by Ejaz, A.S.I. P.W.17 immediately at the time of his spot inspection which was lit at the time; coupled with the recoveries of 15 empties of Klashnikov, 4 pieces of lead bullets, 5 spent bullets, the blood-stained earth and the unexplained long abscondence of the accused, besides the motive and the besmearing of the hands and clothes of complainant Waris Khan, P.W.15 with blood of the deceased Faqir Muhammad when he lifted him in injured condition. We have been taken through the entire evidence recorded in the case.
12. ' The occurrence, no doubt, took place at about 21/22 hours when normally it is dark but there is no denying the fact that the occurrence took place within the limits of Municipal Corporation of Peshawar City and the presence of electric bulb for the convenience of pedestrians on the streets cannot be doubted. Soon after the occurrence, Ejaz, A.S.I. P.W.17 on his visit to the spot saw an electric bulb of 100 watts lit on the outer door of the house of Haji Taj Muhammad adjacent to the scene of the occurrence and took the same into possession vide memo Exh.P.D. The fitting for the fixture of the bulb must have been made long ago and as such the question of plantation of the bulb for creating evidence in the case does not arise. It stands to reason that the assailants must have selected such a place where there, could be sufficient light so as to be able to clearly identify their target and lesser chances of hitting a wrong person. We therefore do not entertain the slightest doubt in our mind about the existence of the bulb Exh.P.12 on the spot or that visibility was not possible.
13. ' Undoubtedly, Waris Khan is the brother of the deceased Faqir Muhammad but he is not related in any way to the other deceased Abdul Matin. His presence at the spot at the relevant time is established because his clothes and hands were besmeared with blood and he was the person who rushed his injured brother to the Lady Reading Hospital for treatment but unfortunately he succumbed to his injuries on the way. A.S.I. Abdul All P.W.11 was present in the Casualty Ward per chance and the complainant spontaneously lodged the report Exh.PA./1 before him specifically charging the accused therein. His conduct in taking his brother, then in injured condition, straight to the hospital without going to the Police Station which too, was nearby can only suggest that he was interested in the life of his brother and not in the implication of innocent persons for the murder of the two deceased. He had no occasion to consult his kith and kin before his report to Abdul Ali, A.S.I.
14. P.W.11 wherein he not only directly charged Khan Bahadur respondent and his brothers Jahanzeb and Auranzeb but also attributed them the firing with the Klashnikov which fact was corroborated by the recovery of empties and bullets of the said type of weapon from the spot.
15. ' As regards the testimony of Ain Khan, P.W.16 suffice it to say that he has emerged unscathed from the lengthy cross-examination and the defence has not been able to establish his interestedness either in favour of the prosecution or against the defence. He was found present on the spot at the time of spot inspection by Ejaz, A.S.I. P.W.17 and his statement under section 161, Cr.P.C. Was recorded at the spot. He is also a witness to the recovery memos of the articles mentioned above.
16. This P.W. Deserves much credence because he has stuck to his version till the end in spite of his having no axe to grind of his own to falsely involve the accused and must have withstood great pressure from them. His deposition on oath, therefore, cannot be brushed aside simply on the bald allegation that he was a partyman of the complainant party.
17. No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case the accused/respondent No,1, Jahanzeb accused (since murdered) and their brother Aurangze remained fugitive from justice for a very long time without any plausible an reasonable explanation. Their conduct after the occurrence was indicative o their guilt when considered in conjunction with the ocular and circumstanti evidence in the case.
18. ' Nevertheless, the learned trial Judge, vide his judgment, dated 14-1-1988, extended the benefit of doubt to the accused/respondent and his brother Jahanzeb and acquitted them. The observations recorded by him in support of the acquittal order are:--
(a) that the occurrence took place at a time when there prevailed complete darkness;
(b) that all the three accused were attributed simultaneous firing with Klashnikov and each one could emit 30 rounds within seconds if rapidly fired;
(c) that the prosecution has not accounted for the whereabouts of all the empties and bullets;
(d) that some injuries bear charring marks as against others which are otherwise;
(e) that the medical evidence contradicts the ocular evidence inasmuch as the contradictions in the statements of witnesses between the timings and other factual aspects of the case; and
(f) that Waris Khan is interested on account of his deceased brother's friendship with one Papo Khan, an enemy of the accused party.
19. ' The learned trial Judge derived guidance from a Hadith relied upon in case reported in PLD 1956 (W.P.) Lahore 300, to the effect that it is better for the Imam (Judge) to err in acquittal than in conviction in case of capital charge. The learned Division Bench of the Peshawar High Court without dilating much on the testimony of the eye-witnesses, their corroboration on material particulars by the recoveries and the abscondence of the accused, simply, concluded "this being a night occurrence and the deceased having several enmities at his credit, the benefit of doubt extended to the accused in such circumstances is neither arbitrary nor in disregard of the material evidence available on the record. The abscondence of the accused and their subsequent conduct rightly did not prevail with the learned Sessions Judge as evidence sufficient to corroborate the statements of interested witnesses in view of the infirmities pointed out."
20. ' It is evident from the impugned judgments of the trial Court as well as the appellate Court that the learned Judges did not read the evidence in their proper perspective. No convincing reasons were advanced to disbelieve the evidence of Waris Khan P.W.15 and Ain Khan, P.W.16. Their conclusions that the incident took place at a time when there prevailed complete darkness or that it was a night occurrence was based on no evidence rather, on the contrary, as discussed in the earlier part of the judgment, in disregard of the existence of a lit bulb Exh.P.12 at the venue of occurrence fully established from the statement of Ejaz, A.S.I. P.W.17 and Ain Khan, P.W.16. Apparently, there are no material contradictions in the medical evidence and the ocular version because the deceased could not be expected to be a statue to receive bullets from one particular direction without making any movement. The minor contradictions in the timings could not reflect adversely on the truthfulness or veracity of the witnesses, more so when they were proved to be disinterested. The conclusion of the High Court that the deceased had blood feud with several other persons can be of no help to the defence at all because, if the complainant was to level a false charge then in all probability he would have involved his real enemies and if the enemies have in fact killed his brother he would have implicated them instead of falsely charging the accused just to make addition to the list of his enemies and unnecessarily incurring their wrath. The reasoning of the trial Court for ignoring the long abscondence of the accused that they made themselves fugitive from justice because they apprehended that the case might be tried by the Martial Law Court is far from convincing. We are, therefore, of the firm view that the impugned orders of acquittal are the result of misreading and non-reading of evidence.
21. ' The learned counsel for the appellant placing reliance on the case of Lalu v. The State PLD 1959 Supreme Court (Pak.) 258 forcefully argued that the order of acquittal recorded by the lower two forums requires scrutiny by this Court for doing complete justice. The relevant dictum at page 268 is reproduced below:--- "This is the first case in which the necessity for setting aside an acquittal on a capital charge ordered by a High Court has, arisen before this Court. We are conscious of the gravity of the proceeding. But having devoted our fullest care and consideration to the case in its entirety, we can see no reason whatsoever that can prevent us from, doing what we clearly see to be our duty, namely, when a charge of a crime is found to be clearly established by evidence of the most patent reliability, which remains entirely unrebutted and is unaffected by any plea in defence, to record our judicial opinion to that effect, where by an acquittal there has been a serious failure of justice and to make a consequential order of conviction."
22. ' The learned counsel for the accused/respondent, on the other hand cited the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and emphasised that unless the finding of the trial Court is found to be wholly artificial, shocking and ridiculous, the order of acquittal cannot be converted into that of conviction. After the examination' of various authorities of the Supreme Court the following principles were deduced for consideration in decision of appeals against acquittal:-
(1) In an appeal against the acquittal the Supreme Court would not on principle ordinary interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely became on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid gray miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.
23. ' We have thoroughly examined the cited judgments qua their application to the facts of the present case. The earlier one supports the plea of the appellant that in exceptional cases where the lower Courts improperly exercised their discretion in recording the order of acquittal on flimsy grounds and ignoring material evidence direct and circumstantial produced in the case, the Supreme Court must step in and rectify the wrong done to the aggrieved party by setting aside the ordet of acquittal where "serious failure of justice" is involved. The latter authority, too, does not bar the exercise of scanning of the evidence to find out whether the order of acquittal is based on proper appraisal of evidence produced in the case or not and that no evidence has been non-read or misread or to avoid grave miscarriage/failure of justice. To achieve this end it does specify certain guidelines with emphasis that the reasoning advanced in support of the order of acquittal by the lower forums have to be given due weight and by doing so the double presumption of innocence, one that the accused shall be presumed to be innocent until proved guilty and second, that competent Courts of law have adjudged him as not guilty have to be kept in view. The facts of the said judgment are not on all fours with the facts of the instant one and are distinguishable in many respects. Firstly, that in appeal before the Supreme Court the order of acquittal of two accused was not challenged who had been given the benefit of doubt on account of lack of proper corroboration of the eye-witnesses account which had been accepted against their co-accused already convicted by the trial Court; secondly, there, was material contradiction in the medical and ocular evidence; and thirdly, the witnesses being interested and inimical independent corroboration was a must. In the case in hand, as already observed above, the witnesses according to our view, were not proved to be interested and inimical and their deposition received substantial corroboration from other circumstantial evidence in the case. The learned trial Court, probably, started with assumption that it is better to acquit than to order conviction and subject itself to thorough scrutiny by the higher Courts and therefore quoted the Hadith' in anticipation so that if its conclusions are found to be erroneous, they are protected. The learned Division Bench too, did not enter deep into the merits of the case and concurred with the order of acquittal, presuming that such orders are not to be lightly interfered with even if the appellate Court forms a different opinion than the one arrived at by the trial Judge. They failed to discuss the ocular as well as circumstantial evidence to justify their finding that the order of acquittal was based on proper appraisal of evidence. Consequently, in our considered opinion it is a fit case in which interference with the order of acquittal is called for to "avoid grave miscarriage" of justice done to the complainant party.
24. Before parting with the judgment, we must reply to another objection of the learned counsel for the accused/respondent No,1 that the State has not filed appeal against the order of acquittal passed by the lower two Courts and in consequence their order of acquittal cannot be lightly interfered with. We are afraid, this objection is without any force in view of the changed circumstances and the promulgation of Qisas and Diyat Ordinance whereby the heirs of the deceased have been given the right of composition and pardon. They are the aggrieved party in strict sense and there is no reason why the door of this Court should be shut to them to agitate their grievances against the accused party charged with murder of their predecessor, who, recording to them, have been able to secure their acquittal on grounds not warranted by law. The rules of the Supreme Court also do not bar filing petition for leave to appeal by the heirs of the deceased. Moreover, the stage for raising this objection has already passed because a Bench of this Court, on consideration of the material placed on the file of petition for leave to appeal, has already granted leave to appeal and as such the objection is bereft of any substance and is overruled.
25. ' The upshot of the above discussion is that we accept this appeal, set aside the orders of the trial Court as well as the appellate Court, dated 14-1-1988 and 29-11-1988 respectively and convict Khan Dahadur respondent No,1 under section 302/34, P.P.C. On two counts. As regards the sentence, since the motive as alleged in this case is not fully proved, we feel that the lesser penalty as provided under the law will amply meet the ends of justice. The accused/respondent No,1 is accordingly sentenced to imprisonment for life and a fine of Rs,30,000 or in default of payment of fine to further two years' R.I. For the murder of Faqir Muhammad deceased. The fine, if realised, shall be paid as compensation to the heirs of the said deceased. He is also sentenced to imprisonment for life for the murder of Abdul Matin deceased and a fine of Rs,30,000 or in default two years R.I.
26. The fine, on realisation, shall be paid as compensation to the heirs of Abdul Matin deceased. Both the sentences of imprisonment for life shall run concurrently and the benefit of section 382-B, Cr.P.C. Is also allowed to the accused/respondent No,1.