1. CORNELIUS, J.-The question involved in this appeal by Mirza Khan who has been convicted and sentenced to death under section 302, P. P. C. 4s well as a term of imprison--ment under section 307, P. P. C. Is whether, in convicting Mirza Khan who had beers acquitted by the trial Judge, the learned Judges of the High Court have given proper weight and consideration (1) to the views of the trial Judge as to the credibility of the witnesses and (2) to the circumstance that the presumption of innocence in favour of the accused was certainly not weakened by his acquittal.
2. The facts of the case may be briefly stated. The incident occurred on the 5th September 1952 in a village in the Mianwali district, and although a large number of men were involved on each side, it is of the first importance to note that there is no allegation of the existence of any previous enmity, much less of any feud, between the parties.
3. On the morning in question, the complainant Mehr Shah and the deceased Ismail, were in the village, in the company of four of their friends, namely. Mehr Khan, Shah Jahan, Haq Nawaz and Faizullah. They were talking over a beating allegedly given to Mehr Khan the previous evening by Adam Khan, Rafiullah and Muqarrab Khan, accused person, in the present case. Their presence in force caused alarm to the opposite side, who anticipating reprisals, collected in sufficient number, and there was a clash. At first, Rafiullah Khan accused came to grips with Shah Japan and Ismail, after an exchange of abases and then went home Immediately thereafter, the body of the accused persons cane out in force. There were Raliullah Khan and his brothers Adam Khan and M--darrah Khan, Noor Khan, Baz Gul alias Ranbaz, Mir7a Khan. Hayat Khan and Ahmad Khan. Four of them had guns and the account given of the assault is that Mirza Khan fired first at Ismail, then Rafiullah fired at Haq Nawaz, Muqarr;ib Khan fired at Shah Jahan, and Baz Gul fired at Faizullah. These four men fell down and thereafter Adam Khan, Noor Khan. Hayat Khan and Ahmad Khan who had stick heat Shah Jahan and Mehr Khan.
4. Ismail died from the effects of a charge of shot which entered his chest and injured one lung. All the other gunshot injuries were caused by rifle bullets. In addition, Shah Jahan had twenty injuries caused by blunt weapons, and Mehr Khan had seven such injuries, Three of the accused persons also were found to have blunt-weapon injuries contemporaneous with those of the opposite-party.
5. Muqarrab Khan had two, Rafiullah Khan had four and Adam Khan had two, all of a minor nature.
6. These injuries were not mentioned in the initial report, but in evidence it was explained that they might have resulted from a stone thrown by Haq Nawaz or a few sticks blows given by Mehr Khan in self-defence.
7. Direct evidence supporting the prosecution case was given by Mehr Shah, Shah Jahan, Faizullah and Mehr Khan. The evidence was not wholly free of blemish. The principal points which attracted the attention of defence counsel were (1) denial in evidence that Mehr Shah had been beaten on the previous night, (2) and admission at the stage of commitment by Mehr Khan that Ismail fell down and died on the spot and (3) an admission by Faizullah to the police that Ismail was carry-- ing a shotgun at the time of the occurrence. These admissions were denied at the trial. Haq Nawaz however gave evidence which largely contradicted the prosecution case. His story was that Ismail challenged the accused persons with a gun, and thereupon two men, namely Adam Khan accused and one Ahmad Khan (not the accused person of that name) appear--ed with guns on the other side and fired. The shots which did all the damage, after which there was an exchange of lathi blows. Haq Nawaz however had supported the' prosecution case at the commitment stage, and his statement there was duly proved. The accused persons supported the statement made by Haq Nawaz at the trial but led no independent evidence in proof.
8. In this :rate of the evidence, the trial Judge in a lengthy judgment reached the conclusion that "the occurrence apparently: took place without any premeditation and if this be so, it remains to be explained how the four accused, who do not live near the place of the occurrence happened to come there". He was referring to Hayat, Ahmad Khan, Mirza Khan and Ranbaz who live two or three miles away from the spot. The other four live very close to the scene of the crime. On this single consideration, the trial Judge based the following conclusion:- "The presence of Hayat, Ahmed Khan, Mirza Khan and Ranbaz, accused, at the time of the occurrence, appears to be somewhat doubtful, though all the principal prosecution witnesses have named them. Noor Khan, whose house is nearby and who is father of the three injured accused was not himself injured and, though he has also been named by all- the prosecution witnesses, the possibility of his non---participation in the occurrence cannot be altogether ruled out. It is not un- often that in this district, with a view to take revenge from the wrong-doers, as many members of the accused party are implicated, in such cases, as is possible for the complainant to include, and it is also not un-often, that even when a single shot is fired and a case of attempt--ed murder is registered, more than half a dozen persons are named as being the culprits. The present case could not be an exception, to that general rule, prevailing in this district, and unless it can be held definitely that all the accused had participated in the occurrence it would not be safe to convict all of them. On this view of the case, therefore, I feel, though with some hesitation, that the case against Noor Khan, Hayat, Ahmad Khan, Mirza Khan and Ranbaz appears to be doubtful and it would not be safe to accept the evidence of the prosecution witnesses so far as it implicates them; in the commission of the offence complained of.
9. Earlier in his judgment, however, the trial Judge had com--mented upon the weaknesses in the prosecution evidence, includ--ing those which have been indicated above. He thought also that some attempt had been made in the evidence to introduce an interval of time between the initial grappling in which Rafiulla alone was involved and the final assault, which was occupied in preparation for massive retaliation.
10. In the result, the trial Judge convicted only those of the accused persons who bore injuries and even as regards these persons, he found it possible only to hold them guilty of culpable homicide not amounting to murder, falling under Exception 4 to section 300, P. P. C., as well as under section 307, P. P. C. The sentences awarded under each count were five years' rigorous imprisonment to run concurrently. The remaining five accused persons were acquitted.
11. The case came before the High Court on appeal filed by the Crown under section 417, Cr. P. C.
12. Against Mirza Khan alone, with which was heard a revision petition by two of the prosecution witnesses seeking re-trial of the remaining acquitted persons for the same offences. The Crown appeal was accepted and Mirza Khan was convicted under section 302, P. P. C. And sentenced to death for the murder of Ismail, and also under section 307 read with section 149, P. P. C. For which a sentence of 5 years' rigorous imprisonment was imposed. After making specific reference to the judgment of the Privy Council in the case of Sheo Swamp and stating that the principles there laid down would be kept in view m disposing of Mirza Khan's appeal, the learned Judges proceeded to state the following facts, viz:- .
(1) That Mirza Khan's name was mentioned as the assailant of Ismail in the initial report.
(2) That this was stated by eye-witnesses whose presence on the spot was accepted. In so doing, the learned Judges overruled the doubt felt by the trial Judge regarding the presence of Mehr Khan.
(3) The previous incidents between the parties were consider--ed and regarded as "not a sufficient ground for falsely implicating Mirza Khan who was not concerned in the two affairs".
(4) That Mirza Khan's presence in the village was probably explained by the fact that be had relatives living there.
(5) That the dying declaration of Ismail, although incorrectly excluded from consideration by the trial judge need not be relied upon in the presence of ample evidence of eye-witnesses at the trial.
(6) That the halting nature of the learned Judge's state--ment regarding the doubt he felt, of which the benefit was given to five of the accused persons showed that the doubt was not a reasonable doubt.
13. The conclusion of the trial Judge that the case fell under Mt exception (4) to section 300, P. P. C.
14. Was examined in relation to the evidence thus accepted, and was over-ruled on two grounds, firstly that the evidence established that after the initial altercation, Rafiullah went home and returned with the seven co-accused persons, and secondly because in the circum stances, the use of fire-arms proved that the accused had acted in an unusual and cruel manner. Although there was no appeal against the acquittal of Rafiullah, Muqarrab Khan and Adam Khan on the charge of murder, that learned Judges nevertheless considered that Mirza Khan had made a dastardly attack and taken the life of Ismail, and consequently justice must be meted out to him according to law. They held him to be also "vicariously responsible for the injuries received by Shah Jahan, Faizullah, Mehr Khan and Haq Nawaz" and accord--ingly convicted him under section 307, read with section 149, P: P. C. The revision petition against the remaining four acquitt--ed accused was dismissed on the ground that to direct re--trial after a clear opinion bad been recorded on the evidence in the case, in dealing with the liability of Mirza Khan, would "amount practically to an order to the subordinate Court to which the case is sent to convict the four acquitted accused".
15. Leave to appeal to the Federal Court was given in order to examine whether proper weight had been attached to the of the trial Judge who had enjoyed the advantage of finding seeing and hearing the witnesses. Having now heard Mr. Manzurl Qadir for the appellant, who has taken us through the judg--ment of the trial Court and pressed before 'us the same argu--ments which had found favour with the trial Judge, we are satisfied that there is no occasion here for interference by this Court in the exercise of its special jurisdiction in relation to criminal matters.
16. Two defects of a technical nature may first be mentioned. The trial Court had in its judgment expressly held that it could not find on the evidence that at least five persons had joined in the attack, and, therefore, the provisions of section 149, P. P. C. Were not applicable to the case. On its own view that the incident was of a sudden and unpremeditated nature, falling within the terms of exception (4) to section 300, P. P. C., it is difficult to see how the trial Judge found it possible to convict Rafiullah, Muqarrab Khan and Adam Khan of culpable homicide not amounting to murder.
17. The convictions have been record--ed as if for a common liability but it is clear that none of these persons caused any injury to Ismail, and one of them namely Adam Khan is said to have used only a stick. The correctness of Mirza Khan's conviction by the High Court under section 307/149, P. P. C.
18. In the absence of a finding that at least five persons participated in the attack is also clearly open to question, but as this conviction is subsidiary to the main conviction for murder, which has been recorded against him separately the matter may be allowed to rest there.
19. The trial Judge's view of the case rested on two assump--tions. The first was that there is a "general rule" in the Mianwali district that in every case, a number of innocent persons are falsely implicated.
20. The second assumption was that the clash between the parties came so suddenly that only those who live in the immediate vicinity probably took part, and the others were probably falsely implicated. Eventually the scope of conviction was further restricted by confirming it to those of the accused persons who bore injuries.
21. It is necessary to state, since this has not been done by the High Court, that the "general rule" relied upon by the trial Judge has no existence either in fact or in law.. A tendency to implicate innocent members of an opposing faction along with those who are guilty undoubtedly exists, and Courts deal--ing with faction cases should, and do in fact, take notice of this tendency in appreciating the evidence led before them But to say that false implication is found in every case to the extent of being a "general rule" is erroneous and a judge who carries such a belief in his mind is in danger of incapacitating himself from doing his judicial duty, which is to decide cases on the basis of legal testimony. In the present case, it is clear that in applying this "general rule" which he had for-- mulated for himself, the trial Judge omitted to take into considera--tion the fact that this incident did not arise out of a feud and that previous enmity between the parties is almostnon-existent.
22. Consequently, the usual basis for selection of persons for false implication is altogether missing.
23. Even the tie of relationship is applicable only to Mirza Khan who is first cousin to Rafiullah. Ahmad Khan is no relation at all and the relationship of Hayat Khan and Ranbaz is distinctly remote.
24. Yet the presence of these persons in the village, and the probability of their responding to a sudden call to arms by Rafiullah appears clearly enough, and coupled with express men--tion of their names and specification of their acts in the prompt report to the police these are strong grounds for thinking that the trial Court's conclusions were founded on mature considera--tion of all .t4 relevant circumstances.
25. It is, however, not the function of this Court to review the evidence in the case, even where the findings of the two Courts below arrived at on the evidence are not concurrent. This Court is concerned only to see that substantial justice has been done, and it does not ordinarily interfere with find--ings of fact reached upon the evidence by the Court immediately below, viz. In the present case, the High Court. Nothing in the nature of violation or disregard of the fundamental principles of criminal justice appears in the judgment of the High Court, and on the other hand, it is clear to us from consideration of all the circumstances, that the High Court has acted, with due regard to its duty, generally, as well as in relation to the precepts contained in the case Sheo Swarup to correct a manifest error which had been committed by the trial Court.
26. It was urged also by Mr. Manzur Qadir that the High Court's decision has resulted in marked inequality of treat--ment between Mirza Khan on the one hand and the three persons who had been convicted by the trial Judge on the other.
27. It is clear that Mirza Khan alone were responsible for the death of Ismail, which was the basis of the charge of murder. It is possible to hold upon the facts that the responsibility of each persons who joined in the attack, should be assessed on an individual basis. Since the actions of the several participants produced different results, none being so serious as the result of Mirza Khan's action, equality of treatment was not to be expected, in the absence of a clear conclusion of constructive liability.
28. This appeal fails and we hereby dismiss it.