' MUHAMMAD MUNIR KHAN, J.---This Criminal Appeal arises from the facts that in the occurrence which took place on 16-6-1985 at Deegarwela in the garden of Nosher (deceased) situate in Mauza Yadawala, Muhammad Nawaz (respondent No,1) and Mumtaz (since dead) allegedly caused the death of Nosher by fire-arm at the instigation/abetment of Muhammad Ismail and Muhammad Hayat (respondents Nos.2 and 3). The injuries suffered by Nosher were sufficient to cause death in the ordinary course of nature. The matter was reported by Sikandar Hayat (P.W.9) brother of the deceased, at Police Station Lallian the same day at 6-30 p.m. Abdul Samad Qamar S.I. (P.W.13) inspected the spot and took into possession blood-stained earth and four crime empties from there. He arrested Mumtaz on 28-6-1985 who led the Police to his house and got recovered unlicensed carbine (Exh.P.4). No crime weapon was recovered from Muhammad Nawaz (respondent No,1). The report of Forensic Science Laboratory revealed that all the four empties recovered from the spot were fired from the gun of Mumtaz accused.
2. Motive allegedly was that the deceased was suspected of having illicit relations with the wife of Muhammad Hayat. He also had dispute over the turn of water with Muhammad Nawaz (respondent No,1).
3. To prove its case, the prosecution produced fourteen witnesses. Sikandar Hayat (P.W.9), Khizar Hayat (P.W.10) and Ahmad Yar (P.W.11) gave ocular account of the occurrence. They claim to have seen Muhammad Nawaz (respondent No,1) and Mumtaz (since dead) firing shots from the guns which hit Nosher who fell down. He was removed to the hospital but succumbed to the injuries on his way to the hospital. Mall (P.W.6) is a witness of the conspiracy/abetment against Muhammad Ismail and Muhammad Hayat (respondents Nos. 2 and 3). He stated that three/four days before the occurrence, it was within his hearing that Muhammad Ismail and Muhammad Hayat (respondents Nos.2 and 3) had instigated Mumtaz and Muhammad Nawaz to kill Nosher. Dr. Khalid Mahmood (P.W.1) proved the post-mortem report. Muhammad Anwar (P.W.7), Ahmad Yar (P.W. 11), Abdul Samad Qamar (P.W.13) have supported the recovery of four crime empties from the spot and the recovery of carbine from Mumtaz. The rest of the evidence is almost of formal nature.
4. While examined under section 342, Cr.P.C., all the accused denied the allegations against them and also the incriminating evidence produced by the prosecution. They raised the plea of false implication on account of enmity. Liaquat Ali Constable (D.W. 1) having appeared in defence stated that a criminal case under section 307/34, P.P.C. Was lodged by Muhammad Nawaz (respondent No,1) at Police Station Lallian against Jaffar who was convicted by the trial Court but acquitted in the appeal.
5. Additional Sessions Judge, Jhang acquitted Muhammad Nawaz, Muhammad Ismail and Muhammad Hayat (respondents Nos. 1 to 3) and convicted Mumtaz under section 302, P.P.C. And sentenced him to death. Feeling aggrieved, Mumtaz filed an appeal in the Lahore High Court, Lahore. The State also filed an appeal against acquittal of the respondents Nos. 1 to 3 which was dismissed by the High Court on 18-11-1990. The appeal of Mumtaz was accepted and he was acquitted of the charge vide impugned judgment.
Feeling dissatisfied with the judgment of the High Court, Sikandar Hayat (complainant) filed a petition for leave to appeal in this Court in which leave was granted on 13-11-1992 to examine the contention of the learned counsel for the petitioner/appellant that the constitution of the Bench in the High Court was illegal because one of the learned Judges of the Bench, before his elevation as a Judge of the Lahore High Court, Lahore, was Advocate-General and in that capacity he had advised the Provincial Government not to file an appeal against acquittal. In the leave granting order it was also observed that "the matter requires examination". We have heard the counsel for the appellant on merits as well.
6. Learned counsel appearing for the appellant has not seriously questioned before us the legality of constitution of the Bench which delivered the impugned judgment. This objection regarding constitution of the Division Bench in the High Court was neither raised before the Division Bench of the High Court at the time of the hearing of the appeals nor has been taken in the petition for leave to appeal. There is no material on record in proof of the objection either.
7. On merits of the case learned counsel for the appellant has argued that the prosecution has successfully brought home the charge of murder against Muhammad Nawaz, Muhammad Ismail and Muhammad Hayat (respondents Nos. 1 to 3); that Mall (P.W. 6) is an independent witness who supported the allegations of the conspiracy against Muhammad Ismail and Muhammad Hayat (respondents Nos.2 and 3) that his statement has been rejected without cogent reasons; that Muhammad Nawaz (respondent No,1) had actively participated in the occurrence and had fired shots which hit the deceased; that the eye-witnesses have fully implicated him in the crime, that the eye-witnesses are not interested witnesses and their statements do not suffer from material contradictions and major discrepancies; and that the circumstances of the wedding of the four empties with the gun recovered from Mumtaz does not exclude the possibility of firing by Muhammad Nawaz, in that, he (Muhammad Nawaz) might have carried the empties in the barrel of his gun.
8. Learned counsel appearing for the State has supported the acquittal of the respondents.
9. Considerations for interference in appeal against acquittal and in appeal against conviction are quite different. The well-settled principles, to be kept in view while dealing with an appeal against acquittal, are the following:--
(i) With the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence.
(ii) Unless all the grounds on which the High Court had purported to acquit the accused were not supportable for the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion.
(iii) Unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere.
(iv) Unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere; and
(v) The Supreme 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 not other purpose.
So, keeping in view these principles, we have reappraised the evidence and circumstances appearing in the case and have carefully attended to the arguments addressed by the learned counsel for the parties. We do not feel pursuaded to agree with the learned counsel for the appellant.
10. Muhammad Ismail and Muhammad Hayat (respondents Nos. 2 and 3) had not participated in the occurrence. The allegation against them was that four/five days before the occurrence they had instigated Muhammad Nawaz (respondent No,1) and Mumtaz co-accused (since dead) to do away with the deceased. To prove this allegation, prosecution has relied on the solitary statement of Mall (P.W.6). The High Court, while considering the evidence of Mall, observed as under:-- "....Learned trial Judge acquitted both of them by discarding the statement made by Mall P.W.6 who was the only witness examined to prove the abetment of crime by them. Mall P.W. Was son of paternal aunt of the deceased. He claimed that he had heard both of them talking about murder of the deceased at their instance by Mumtaz and Muhammad Nawaz respondents, 3-4 days prior to the occurrence. He had gone to the hospital with the complainant when he had taken the deceased there. He had not mentioned this fact to the complainant. Learned trial Court came to such a conclusion considering that had he mentioned the details to the complainant, he (the complainant) in turn would have certainly stated so in the F.I.R.
' The other thing which led the trial Court to discard the statement of Mall P.W. Was, that he was not found to have stated in his statement before the Police that he had informed the deceased about the talk of Muhammad Hayat and Muhammad Ismail regarding conspiracy of murder which he stated at the trial.
' After having considered the reasoning advanced by the trial Judge in the light of the evidence on record, we do not find anything to differ with the conclusion arrived at by him."
11. According to the prosecution, Muhammad Nawaz (respondent No,1) had fired two shots from his single barrel gun which hit the deceased and Mumtaz co-accused had also fired two shots at the deceased. Strangely enough, the four empties recovered from the spot were found to have been fired from the gun recovered from Mumtaz accused. While discussing the prosecution case against Muhammad Nawaz, the High Court observed as under:- "The reasons given by the trial Judge for acquittal of Muhammad Nawaz respondent also, in our view, do not call for any interference. In that, the most outstanding reasoning noted by the trial Judge for acquittal of Muhammad Nawaz respondent, has impressed us as well, is that, none of the empties collected from the spot was found wedded with the gun alleged to have been recovered from Muhammad Nawaz. The prosecution case, meticulously was, that out of the first four shots, two each, had been fired by both the accused. Wedding of all the four empties with the weapon recovered from Mumtaz respondent excluded the possibility of Muhammad Nawaz respondent having also fired shots."
12. The reasons given by the trial Court and by the High Court for the acquittal of the respondents are supported by the evidence on record and circumstances appearing in the case. The reasons given by the High Court are quite convincing. Muhammad Nawaz (respondent No,1) had fired two shots from single barrel gun. So, it is not possible that he may have carried the two empties in the barrel of the gun. One crime empty must have fallen on the ground. This weighty circumstance by itself is sufficient enough to exclude the possibility of Muhammad Nawaz (respondent No,1) having fired shots from his gun at the time of occurrence, and would render the statements of the eye- witnesses to the extent of Muhammad Nawaz (respondent No,1) as false.
13. In this view of the matter it cannot be said that the conclusions arrived at by the Courts below qua the respondents was such that no reasonable persons would conceivably reach the same. The reasons given by the Courts below for the acquittal of the three respondents are neither artificial nor ridiculous.
14. The upshot of the above discussion is that there being no compelling reason to interfere with the well-reasoned judgment of acquittal, the appeal is dismissed. The private respondents are on bail.
They stand discharged of the bail bonds.