1. SAEEDUZZAMAN SIDDIQUI, J.---The above appeal under Article 185 (a) of the Constitution is filed by the appellant to call in question the judgment of the Lahore High Court dated 24-10-1922, whereby the Criminal Acquittal Appeal No,530 of 1986 preferred by the State against the judgment of Sessions Judge, Khushab, acquitting the appellant in a murder case under section 302, P.P.C. Was allowed and the appellant was convicted under sec-tion 302, P.P.C. Sentencing him to life imprisonment and fine of Rs,15,000 or in default of payment of fine to suf fer R.I. For two years.
2. The appellant was tried for committing murder of Sultan Mahmood son of Qazi Akram on 11th April 1984. According to F.I.R. Which was lodged in the case by Qazi Akram P.W. 7, the father of the deceased, Sultan Mahmood (deceased) on the fateful day had taken the cattle for grazing, out of the village toward Bhuttewali. When he did not return until noon, the complainant started looking for him. On his way the complainant met Shah Muhammad P.W.
3. 8 and Sher Baz (given up P.W.) outside the village on the road which leads towards Nowshera. The two joined the complainant in search for the deceased and after they covered some distance, they were attracted by the cries of Sultan Mahmood in a nearby field. They saw the appellant sitting on the back of the deceased who had fallen down on the ground. The appellant within their sight gave four blows with a stone on the back side of the head of the deceased and one blow on his mouth. The complainant and witnesses rushed to apprehend the appellant but he managed to escape. The motive for the murder was stated to be an incident which occurred a day earlier in which the cattle of the appellant had strayed into the field of complainant, who had admonished the appellant and given him pushes.
4. The trial Court found that the prosecution though succeeded in proving the motive, the ocular testimony in the case did not inspire confidence. He found the ocular testimony in conflict with the medical evidence. He also found that the contradictions in the ocular evidence were so substantial that they rendere d the prosecution case highly doubtful. The trial Court observed that presence of semi-digested food in the stomach of deceased made the probable time of death of the deceased between 8/9 a.m. While according to prosecution witnesses the deceased died at about 2-30 p.m. This conflict in the time of death of the deceased arising from the medical evidence and the ocular testimony in the case was found by the trial Judge irreconcilable. Similarly , the prosecution case consistently was that the occurrence had taken place in the open field and the dead body of the deceased was lying there till evening when the police arrived at the scene of offence alongwith the complainant. The complainant, Kazi Akram P.W.7, Muhammad Rafique Constable P.W. 4 and Shah Muhammad P.W. 8 had deposed that within 300 to 400 yards around the scene of offence there was no Dera/Dhok or structure of any kind. Muhammad Jamil A.S.I. P.W. 9 the I.O. In the case, however , in his cross-examination admitted that in the inquest report (Exh.PM) he had mentioned that the dead body of the deceased was lying on a cot in front of a residential room which belonged to the father of the accused. Muhammad Jamil P.W. 9 further admitted that the place mentioned in the inquest report as ''Mauga" referred to the place where occurrence had taken place and the dead body was found lying. The trial Court found that there was no explanation in the prosecution evidence about shifting of the dead body from the field to the place in front of the residential room. The trial .Judge also found the recovery of blood-stained earth and blood-stained stone from the scene of offence doubtful as the presence of recovery witness Abdul Quddus P.W. 6 who was found to be inimically deposed towards the appellant, at the spot could not be proved satisfiactorily . Abdul Quddus P.W. 6 had claimed that he joine d the investigation on his own accord and that he reached the spot with the police. Muhammad Rafique Constable P.W. 4 who accompanied the police investigation team to the scene of offence and remained at the spot until he escorted the dead body of the deceased to the hospital, did not mention about the presence of Abdul Quddus. On the contrary he stated that when the police party reached the spot only complainant was accompanying them. The complainant Qazi Akram P.W. 7 in his cross-examination categorically stated that nobody joined them on the way when he and the police party were proceeding towards scene of offence after alighting from the Suzuki. He also categorically stated that when he reached with the police party at the spot only Shah Muhammad P.W.9 and Sher Baz (given up P.W.) were present and no other person was present there.
5. The trial Court also found that in the memo. Exh.PE, under which blood-stained earth and blood-stained stone were taken into possession by the police from the spot, it was mentioned that some hairs of the deceased were found sticking to the blood-stained stone but the chemical examiner's report made no mention of the presence of hairs on the stone. The above appraisal of the evidence in the case by the trial Court was neither perverse nor based on any misreading of evidence. The High Court while setting aside the judgment of trial Court and convicting the appellant under section 302, P.P.C. Found that the F.I.R. Was lodged in the case promptly , investigation commenced without delay , the eye-witness account is to the point, truthful and disinterested and the plea of appellant remained unsubstantiated. The fact that the accused/appellant failed to prove his plea raised in defence, could neither reduce the burden of the prosecution to prove the case against him beyond all reasonable doubt nor it could be taken into consideration as a proof in support of the prosecution case. The conclusions drawn by the learned Judges of the High Court on the basis of the re-appraisal of the evidence in the case, while convicting the appellant, were merely another possible view of the evidence which was not sufficient for reversing the acquittal of the appellant into conviction. The learned Judges of the High Court did refer to the case of Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11) in the impugned judgment but unfortunately they failed to keep in sight the following guiding principles laid down by this Court for deciding an acquittal appeal in a criminal case:-- "However , notwithstainding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently 8 followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:--
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily 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 reappraisement 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 accus ed is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the secon d 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 while 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 observations of some higher principle as noted above and for no other reason.
(4) 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 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 grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this beha lf 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."
6. Keeping in view the above principles, we find that the acquittal of the appellant in the above case by the trial Court was neither perverse nor based on misreading of evidence. The High Court was, therefore, not justified in interfering with the acquittal judgment of trial Court simply because it had 1 c taken another view of the evidence in the case.
7. We, accordingly , allow the appeal, set aside the judgment of the High Court and restore the judgment of trial Court.