1. WALI MUHAMMAD KHAN, J.---Muhammad Asghar son of Naik Alam and Arshad Mahmood son of Noor Alam, appellants herein, through leave of the Court, call in question the judgment dated 26- 11-1991 passed by a learned Division Bench of the Lahore High Court, whereby on the acceptance of Criminal Revision No,697/88 filed by Fazal Hussain complainant, the judgment of the Sessions Judge, Gujrat dated 15-6-1988 acquitting the appellants from the charge of murder of Muhammad Aslam son of the complainant, was set aside and their retrial alongwith their co-accused Ansar Shabbir ordered while the acquittal order of the other co-accused was maintained. The operative part of the leave granting order is reproduced:--- "After hearing the learned counsel and having gone through the record we grant leave to consider whether in setting aside a finding of acquittal in revision the principles laid down by this Court in Ghulam Sikandar's case PLD 1985 SC 11 were followed."
2. The prosecution case as gleaned from the record/F.I.R. Is that Fazal Hussain complainant P.W.11 was present at Bus-Stand Malowal, distent one mile from the police station, on 15-9-1985 when in the meantime his son Muhammad Aslam deceased alongwith Ghulam Rasool P.W.10 alighted from a bus coming from Gujrat side at about 6-30 p.m. The accused Noor Alam, Ilaqat Ali, Allah Ditta, Mian Khan all empty handed; Muhammad Aslam, Saleem Akhtar, Muhammad Arshad, Shabbir sons of Noor Alam; Ansar son of Shabbir all armed with daggers; Naik Alam, Muhammad Akram, Muhammad Asghar armed with Chhuris stood up from the side of a nearby cigarette Khokha. The former four exhorted the others to kill the deceased upon which Muhammad Aslam deceased started running towards west but was overpowered by all the accused. The above assailants who were armed were attributed blows to the deceased with their respective weapons which are described in seriatim and in a tabulated form as under:---
(1) Muhammad Aslam Acquitted accusedThree blows with dagger.
3. (2)Saleem Akhtar Acquitted accusedThree blows with dagger.
4. (3)Muhammad accusedArshad AcquittedThree blows with dagger.
5. (4)Shabbir Acquitted accusedThree blows with dagger.
6. (5)Ansar Accused Three blows with dagger.
7. (6)Naik Alam Acquitted accusedThree blows with Chhuri.
8. (7)Muhammad AkramAcquitted accusedThree blows with Churri.
9. (8)Muhammad AsgharAppellant Successively dealt blows with Chhuri.
10. All the accused are alleged to have dealt blows to the deceased when he was lying on the ground in injured condition with their respective weapons. The motive disclosed is ill-feeling in B.D.
11. Elections. The complainant started for the police station when en route he met Abdul Matin S.H.O.
12. P.W,13 to whom he narrated the occurrence which he recorded and is correctly incorporated in F.I.R.
13. Exh.PH/1. After the completion of the investigation in the case all the accused were put on trial before the Sessions Judge, who, after framing of the charge-sheet, recording of prosecution evidence, statements of the accused, came to the conclusion that the case against all the accused was not free from doubt and giving them the benefit of doubt acquitted them. The State did not choose to prefer appeal before the High Court, however, on the revision tiled by the complainant the order of the Sessions Judge was partially set aside so far as the appellants and Ansar Shabbir are concerned and their retrial ordered but the acquittal of the other accused was maintained. Hence the instant appeal through leave of the Court. We have heard Mr. M. Pervaiz Akhtar, Advocate, for the appellants; Raja Abdul Ghafoor, Advocate for the State; and have perused the record of the case. The learned counsel for the appellants strenuously argued that the learned trial Court had advanced substantial reasons in support of the order of acquittal and that the High Court under the law and ruling of this Court could not interfere therewith except on coming to the definite conclusion that there was either misreading or non-reading of evidence or that the judgment of acquittal was perverse and had occasioned miscarriage of justice. According to him, even if the High Court had formed a different opinion than the one arrived at by the trial Court that alone could not be made a ground for setting aside the judgment of the trial Court. He added that even the High Court did not believe in the statements of the eye-witnesses so far as the co-accused of the appellants were concerned and that the role attributed to the accused being the same so far as the accused armed with dagger and Chhuri were concerned, the principle of sifting the grain from the chaff could not be resorted to. In support of his arguments he cited the judgments of this Court in case Ghulam Sikandar v. Mamaraz Khan PLD 1985 Supreme Court 11; Yar Muhammad v. The State 1992 SCM R 96; and Feroze Khan v. Captain Ghulam Nabi Khan PLD 1966 Supreme Court 424.
14. The learned State counsel, on the other hand, supported the judgment of the High Court and submitted that the High Court had simply ordered the retrial of the accused/appellants and that the authorities cited were not applicable.
15. The grounds which prevailed with the learned trial Court in ordering acquittal of the accused are enumerated below:---
(i) The occurrence took place at 6-30 p.m., statement of Fazal Hussain complainant was recorded by Abdul Matin S.H.O. At Chowk Karianwala at 7-30 p.m., post-mortem was conducted at 9-00 a.m.
16. The following day whereas the relevant papers for the examination of the body were produced by the Medical Superintendent at 8-30 p.m. On 16-9-1985 and keeping these factors into consideration it was concluded that the F.I.R. Was recorded after preliminary investigation by the I.O.
(ii) Fazal Hussain complainant was standing at a distance of 55 feet when the accused had surrounded the deceased and started delivering him blows on different parts of his body and that it was well-nigh impossible for him to see each accused giving blows to the deceased and enumerate the number being inflicted and the part of the body at which they hit with so precision that it almost tallies with the number of injuries and seat of injuries found by the doctor at the deceased. Though the other witness, namely, Ghulam Rasool who too, was allegedly present, could neither give number of blows delivered by each accused nor explain the seat of injuries.
(iii) The distance between the spot and the police station is one mile and it is not satisfactorily explained as to how the report was recorded in the form of Murrasila.
(iv) The recoveries of dagger Exh.P.4 from the possession of Ansar accused, Chhuri Exh.P.5 from Asghar and dagger Exh.P.6 from Arshad accused/appellants were not accepted because Ahmed Khan, witness of recovery memos, was inimical to the accused party and Other witness, namely, Raja Khan was not produced and also because the rooms from which the recoveries were effected were not locked but were lying open and the houses were inhabited by other family members who were not associated with the recovery proceedings.
17. The provision of section 103, Cr.P.C. Ordaining the search in the presence of the respectables of the locality was not complied with. The witnesses being interested as Fazal Hussain P W is the father of the deceased and Ghulam Rasool is close relative who were categorised as interested witnesses and in the absence of any strong corroboration qua the appellants, their statements were held not sufficient for the conviction of the accused. Their presence at the spot was also found to be not natural.
(vii) Bashir whose Khokha is located near the place of occurrence was an important witness but he was not produced as witness.
18. (viii)The statement of driver and conductor of the bus in which the deceased came was not recorded nor any person present in the Adda or inhabitants of the surrounding houses and shops were examined. It was also noted that at the time of occurrence there was some darkness and that the identification of the assailants could not be free from doubt.
(ix) There are material contradictions in the statements of the witnesses inter se as well as their statements recorded under section 161; Cr.P.C. And the Court statements and that the witnesses restored to improvements.
(x) The investigation had been entrusted to S.P. Who found that 9 out of 12 accused were innocent and the D.S.P. Recommended discharge of some of the accused while the names of the nine persons who were found to be innocent were mentioned in column No,2 of the challan.
(xi) The motive advanced was not accepted as correct and sufficient to prompt the accused to kill the deceased.
(xii) That the complainant tried to rope in as many persons as possible including Noor Alam who was 80/85 years old and whose participation in pre-planned occurrence was not believable. The learned High Court, on the other hand, without dwelling at length on the reasons advanced by the trial Court concluded that the case against Arshad, Ansar and Asghar was proved and ordered their retrial basing its conclusion mainly on the opinion of police and recoveries of daggers and Chhuris from their possession. The grounds justifying interference with the orders of acquittal of accused persons by the Criminal Courts have long been under consideration of this Court and authoritative judgments already pronounced. It has been the consistent view of this Court that there is double presumption of innocence in favour of an accused person who has secured acquittal; one, that every accused shall be presumed to be innocent unless proved to be guilty and the other that a competent Court of law has adjudged him not guilty. The interference can only be made if the order of the Court below is manifestly wrong or perverse or is based on the view of the evidence which no judicial officer would take, or the Court has misread the evidence or important evidence has been ignored or that non-interference will result in miscarriage of justice. The mere fact that the appellate or revisional Court form a different opinion on the appraisal of evidence than the arrived at by the trial Court will not justify setting aside the order of acquittal. Due weight has to be given to the conclusion of the trial Court. These considerations have to be kept in view both, in appeals against acquittal under section 417, Cr.P.C. By the State as well as in criminal revisions under section 439, Cr.P.C. Filed by the complainant party as, in either case interference is sought with the order of acquittal, in the former the appellate Court can itself convert the acquittal into conviction while in the latter case the revisional Court can only order retrial and is not competent to pass sentence itself. On the touchstone of the guiding principles laid down by this Court from time to time, the order of acquittal in the instant case was apparently neither the result of misreading or non-reading of evidence nor it could be termed as so perverse as to occasion miscarriage of justice. The learned trial Court has advanced so many cogent reasons which influenced it to conclude that the evidence produced was not sufficient for the conviction of the accused for safe dispensation of criminal justice. The old maxim of falsus in uno falsus in omnibus was fully attracted in the present case, inasmuch as, the acquitted accused too, had been attributed specific roles of giving blows with dagger and Chhuri causing injuries to the deceased on the different parts of his body and the eye-witnesses' account having been disbelieved qua their implication in the tragedy by the trial Court as well as the High Court, the same evidence cannot be made the basis for the conviction of the appellants. The trial Court advanced valid reasons for disbelieving the recoveries of the weapons of offence from the appellants and that alone was not sufficient for annulling the order of acquittal without, other independent corroboration. Needless to emphasise, that the opinion of the police regarding the guilt of appellants and the innocence of the co-accused already acquitted, could not form the sole basis for the conviction of the accused under any canon of law and justice because the same was not based on any evidence recorded by him or available on the record of the case. The impugned order is also not sustainable on the ground that the revisional Court has given a definite finding about the guilt of the accused/appellant and had practically debarred the trial Court from giving independent finding about the guilt or innocence of the accused after retrial.
19. We are, therefore, of the considered view that the High Court in exercise of its power of revision has erred in setting aside the order of acquittal of the appellants. Resultantly, we accept this appeal, set aside the impugned order of the High Court and restore the order of acquittal passed by the trial Court regarding all the accused.