1. ' ABDUL QADEER CHAUDHRY, J.---This appeal under Article 185(2) (a) of the Constitution has been filed against the judgment of Lahore High Court dated 7-7-1991 whereby it reveresed the order of acquittal passed by the trial Court and convicted the appellant.
2. ' The facts of the case in brief are that Khawaja Ghulam Abbas on 31-1-1974 lodged a report that he was sitting at the Dera of Sh. Noor Muhammad alongwith Bashir Ahmed and Khurshid when Fayyaz son of Ghulam Rasool fired from the back which hit him on the back shoulder and as he tried to get up the appellant fired two/three more shots which hit him on the legs. This occurrence had taken place as a result of political disturbances and he had been made a scapegoat. Kh. Ghulam Abbas died on 9-2-1974. During the course of investigation, Ghulam Rasool, father of the appellant was also arraigned as an accused. The case was challaned against the appellant and his father and they faced trial on the charge of murder. The learned trial Judge acquitted the accused vide judgment dated 12-6-1976. The State filed criminal appeal and the complainant filed criminal revision in the High Court. The State's appeal against Ghulam Rasool was dismissed but the appellant's acquittal was set aside. He was convicted under section 301, P.P.C. And sentenced to life imprisonment and fine of Rs, 10,000 or in fedault two years' R.I. He was also ordered to pay Rs, 50,000 as compensation to the heirs of the deceased.
3. ' To bring home the charge against the appellant the prosecution relied upon the direct evidence of P.W.13 Bashir Ahmed, P.W.14 Sh. Noor Muhammad and P.W.15 Khurshid Ahmed, the dying declaration of the deceased and recovery of gun from the appellant. The learned trial Court rejected all the three pieces of evidence against the appellant. The learned High Court also discarded the recovery of gun. On the dying declaration it was observed that "statement did not bear the certificate of the doctor that the deceased had remained in his senses when he made the statement". As such the High Court by way of abundant caution excluded the dying declaration from consideration. Thus there remains only direct evidence, the scrutiny of which brought the High Court to the conclusion that the conviction of the appellant could be safely made on the statement of the eye-witnesses. The learned High Court has extensivly quoted the reasoning of the learned Sessions Judge in disbelieving the statement of the eye-witnesses. After quoting the observation of the trial Court, the High Court itself appraised the evidence of the eye-witnesses and accepted the same. The reason which weighed with the learned Sessions Judge in discarding the direct evidence was that, "the police brought the deceased from the spot and not the eye-witnesses.
4. Therefore the presence of eye-witnesses at the spot when the occurrence had taken place could not be accepted because according to the eye-witnesses they had brought the injured to the hopital". The evidence of these witnesses was also disbelieved as it was not corroborated by some independent source. P.W.13 Bashir Ahmcd was an associate of the complainant party. Shaikh Noor Muhammad and Khurshid Ahmed were also not independent and disinterested witnesses. It was also noted that "family of the deceased had enmity with the accused and the said witnesses were admittedly their supporters". In this context reliance was placed on the evidence of P.Ws. Ghulam Abbas. P.W.16 who admitted that two cases were registered at the instance of Ghulam Rasool against many persons including the deceased. It was also observed by the trial Court that "the eye-witnesses had changed their position from the one taken by them before the learned trial Judge. The High Court has noted the finding of the trial Court which is reproduced below:--- "During trial they stated that accused Fayyaz Akhtar fired the first shot at the deceased from north- west side and then he came to eastern side wherefrom he fired the second shot, then he unloaded the gun, then re-loaded it and fired the third shot. In the lower Court the statements Exhs. DD, Exhs.
5. DA and DB of Bashir, Noor Muhammad and Khurshid Ahmed with which they were confronted were that the accused fired all the shots from southern side. There was no mention of north-west and eastern side and loading and re-loading of the gun by the accused. The testimony of witnesses who changed their position as and when it suits them is always looked upon with suspicion. In this view of the matter also no reliance can be placed on the testimony of the eye-witnesses."
6. ' It further added that: "According to them, they were present in the hospital. But they did not talk to any body about the incident though several persons had collected there. Not only this they did not inform the D.S.P.
7. (P.W.16) and even Ghulam Ilyas (P.W.6), that they had witnessed the occurrence and had brought the deceased. None of them also went to the house of the deceased and the police station to inform about the incident. It becomes difficult for the Courts to believe such witnesses who kept quiet, though they claimed to have witnessed the occurrence."
8. ' The trial Court also took into consideration the statement of Khan Muhammad P.W.11 who stated that there were many complaints against Ghulam Abbas deceased, P.W. Ghulam Ilyas and his brother and that not only the people of Taunsa were not happy with Ilyas and the deceased but their father had also condemned them". The trial Court therefore came to the conclusion that the deceased and his brother had several enemies as such the possibility of the deceased having been murdered by one of those cannot be excluded. The trial Court held that "prosecution failed to prove presence of eye-witnesses at the spot", "they were not independent and disinterested witnesses, the occurrence might have been witnessed by some other persons who were not prepared to become witnesses and thereby risk animosity of the accused".
9. ' The learned High Court however disagreed with the finding of the trial Court. It was observed that the three eye-witnesses were natural witnesses and even if Sh. Noor Muhammad and Khurshid Ahmed were interested witnesses, they had charged only one man Fayyaz Ahmed with the commission of the offence and substitution is a thing of rare occurrence. The finding of the trial Court that the witnesses had not accompanied the injured was also not accepted by the High Court on the ground that the doctor did not know who had carried the deceased to the hospital.
10. The conclusion which was drawn by the High Court is as under:--- "In view of what has been said above, the learned trial Judge was wholly wrong in disbelieving the eye-witnesses Bashir Ahmad, Sh. Noor Muhammad and Khurshid Ahmad. It was, therefore, not necessary to take into consideration the alleged enmity of the deceased man with other persons.
11. However, it must need be observed in that connection that it was neither legal nor fair to the Exh.
12. DG a copy of an application said to have been made by the deceased's father long after the incident, that is on 11-9-1975, against the character of the deceased, without formal proof."
13. ' The High Court in para. 47 of the judgment had stated as follows:--- "We are, therefore, of the opinion that the reasons which led the learned trial Court in disbelieving the eye-witnesses, Bashir Ahmad P.W.13, Sh. Nur Muhammad P.W.14 and Khurshid Ahmad P.W.15, were of speculative and artificial nature and that they have led to miscarriage of justice. We would, therefore, accept the State appeal, set aside the acquittal of the respondent, Fayyaz Akhtar, and convict him under section 302 of the P.P.C."
14. ' According to the High Court the reasons given by the trial Court were of "speculative and artificial in nature". As regards the principle for interference of acquittal, the learned High Court placed reliance on Ghulam Muhammad v. Muhammad Sharif (PLD 1969 SC 398). The High Court failed to take notice of the judgment of this Court reported in the case Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) in which the entire case-law, on this subject was analysed and the Court recorded the following opinion:--- "The Court would not interfere with acquittal merely because 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 reasonble person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave 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."
15. ' Again this Court in Mian Rashid Ahmad v. Syed Azeem Shah (1991 SCM R 94) in para. 20 has observed as under:- "The law laid down by this Court from time to time on acquittal appeals has been all summarised in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11). One of the principles extracted was that the acquittal can he interfered with if the High Court had disregarded material evidence, misread such evidence or received such evidence illegally."
16. ' In Feroze Khan v. Fateh Khan (1991 SCM R 2220) it has been observed that "testimony of the eye- witnesses and finding of the High Court showed that at best it could be case of mere difference of opinion regarding appreciation of evidence". Such difference of opinion regarding appreciation of evidence could not be good ground for setting aside an acquittal. The learned High Court did not take into consideration the principles laid down by this Court in deciding the appeal against order of acquittal. The reasons advanced by the learned trial Judge were neither perverse nor fanciful.
17. There was no misreading of evidence. Even on material point, the learned High Court has not displaced the finding of the learned trial Judge.
18. We, therefore, accept this appeal, set aside the order of the learned High Court impugned in this judgment and restore that of the trial Court. The appellant shall be released forthwith unless required to be detained in any other matter.