1. ' RAJA AFRASIAB KHAN, J.--To begin with, on 8th of November, 1986, a case under section 307, P.P.C.
2. Read with section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered on the statement of Muhammad Iqbal with Police Station Gagoo District Vehari against the accused who had been described in fulness in F.I.R. No,219 of 1986. The complainant has been living with his wife and parents in Chak No,223/EB. On the night of occurrence, at about 1-30 a.m., he was sleeping in his room. His parents and a maid servant were sleeping in the Verandah. The accused entered the house of the complainant by scaling over the wall. Two of them had muffled their faces. Their masks were, however, removed when they jumped over the wall. They were, thus, found to be Sanaullah and Arshad Butt. They had been coming to meet the complainant even before the occurrence. Sanaullah, Muhammad Ramzan, Muhammad Afzal, Sardar Alam, Abdul Hameed, Maqbool and Arshad Ali were arrested under section 148/460/396/302/307/323 read with section 149, P.P.C. Sanaullah and Arshad Butt were armed with 7 MM rifle and .12 bore pistol respectively. The third accused with a chopped hand was with them while armed with 7 MM rifle. He was of wheatish colour and tall. The fourth had a .32 bore revolver with him. He was also tall and had kept long hair. Another accused was armed with 7 MM rifle. He was of medium size. The sixth was of stout body and was empty handed. The seventh was of medium size, whitish colour and was holding 7 MM rifle. They ordered the complainant to give them the keys of the house. On refusal, Arshad Butt killed him at the spot by firing four shots from his weapon. Sanaullah also fired at him. They injured Mst. Alam Bibi, the mother of the complainant and Mst. Bhagan. They looted the ornaments and other valuables alongwith cash and ran away from the scene. The accused were tried under the aforesaid charges. The incident was witnessed by Muhammad Iqbal P.W.2, Mst. Alam Bibi P.W.3, Mst. Bhagan P.W.4, Mst. Jamila P.W.5 and Muhammad Shafi P.W.6. On 29-12- 1987, Special Court for Speedy Trials No,V, Multan convicted and sentenced the accused in the following manner:-- "Sanaullah, Arshad Ali, Sardar Alam, Rainzan, Abdul Hameed, Maqbool and Afzal are convicted under section 148, P.P.C. And sentenced to 2 years each. They are also convicted under section 460 read with 149, P.P.C. For committing the offence of house breaking by night while armed with deadly weapons and sentenced to ten years R.I. Each and a fine of Rs,2,000 each or in default to suffer further R.I. For 6 months. All the accused had been charged for offence under section 307 read with 149, P.P.C. For grievous injuries to Mst. Alam Bibi P.W. Since the accused had given the grievous injuries to Mst. Alam Bibi P.W. Which was not dangerous to life, all the accused are, therefore, convicted under section 325 read with 149, P.P.C. For having caused the grievous injuries with blunt weapon in prosecution of the common object of the said unlawful assembly, and sentenced to three years R.I. Each and a fine of Rs,1,000 each or in default to undergo further R.I. For 3 months each. No offence under section 307/149, P.P.C. Is made out against the accused, and, therefore, they are acquitted of the said charge, and instead they have been convicted under section 325/149, P.P.C. Since Sanaullah accused committed the murder of Mukhtar Ali deceased by firing a shot with his rifle and this murder was committed while so committing the dacoity in the house of the deceased, in prosecution of the common object of the said unlawful assembly formed by all of them, they are, therefore, convicted under section 396 read with 149, P.P.C. Since Sanaullah accused had fired the shot with his rifle, Arshad Ali had also fired 3-4 shots with his pistol, injuring the deceased and Sardar Alam had also fired the shots with his rifle on Muhammad Iqbal, P.W. Who luckily escaped, all the three, therefore, namely 'Sanaullah, Arshad Ali and Sardar Alam are sentenced to death and a fine of Rs,2,000 each or in default to suffer R.I. For three months. They shall be hanged by the neck till they are dead. The other accused namely Maqbool, Ramzan and Abdul Hameed are sentenced to imprisonment for life each and a fine of Rs,2,000 each or in default to undergo R.I. For a period of three months each. Afzal accused however, did not carry any weapon, nor anything was recovered from him, he is, therefore, sentenced to 10 years R.I. With a fine of Rs,2,000 or in default to undergo further R.I. For 3 months. All the seven accused are also convicted under section 323/149, P.P.C. For causing simple injuries to Mst. Bhagan, they are sentenced to 6 months R.I. All the sentences, however, shall run concurrently. The accused shall, however, be entitled to the benefit of section 382-B, Cr.P.C. The case property i,e, the ornaments, and cheque books etc. Exhs.P-1 to P.58, P.60 to P.67, P.69 to P.74 and P.81, the currency notes of the value of Rs,5,650, Exhs.P-79/1-57, shall be returned to the complainant after the result of appeal, if any. Since the accused are convicted under section 396/149, P.P.C. There is, therefore, no need to record separate conviction under section 302/149, P.P.C."
3. The convicts challenged their conviction and sentence by filing appeal which was heard and accepted by a Division Bench of the Lahore High Court on 16-7-1988. They were acquitted of the charge by the Court by giving them the benefit of doubt. Leave to appeal was granted by this Court with the following order:-- "Leave to appeal is granted as leave to appeal has already been granted to examine question of law with regard to the competence of direct appeal in Criminal Petition for Leave to Appeal No,265 of 1988 (The State v. Shah alias Shah) on 21-2-1990, and to examine whether the High Court correctly rejected the identification of the respondents by IA the eye-witnesses.
4. ' Bailable warrants in the sum of Rs,25,000 with two sureties in the like amount to the satisfaction of District Magistrate Vehari be issued against the respondents."
2. Learned counsel for the complainant submits that the prosecution has been able to prove its case against the respondents on the basis of reliable evidence. It is stated that Sanaullah and Arshad Butt were already known to the complainant. They were named in the F.I.R. With a clear role in the commission of the crime. They were identified along with other accused by the witnesses during Identification Parade. Recovery of the looted property was effected from them. It is claimed that the prosecution witnesses are independent as they had no axe of their own to grind to implicate the accused falsely.
3. Learned counsel appearing on behalf of the respondents has argued that the High Court after discussing the evidence in depth, has doubted the claim that Muhammad Iqbal and Muhammad Shafi P.Ws. Had seen the occurrence and as such they were not believed. Recovery of the property was not accepted to be of any worth for the success of the prosecution case. In such a situation, benefit of doubt was given to the respondents. He states that appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. It has not been demonstrated that some material evidence was not taken into consideration by the High Court which, in fact, had caused gross miscarriage of justice.
4. We have heard the learned counsel for the parties at some length. The relevant record was read by us with care with their assistance. We have been persuaded to uphold the well-reasoned impugned judgment acquitting the respondents. There are number of infirmities in the case which could not be reconciled by the persecution during trial. Mukhtar Ali died of the injuries on 11-12-1986.
5. He remained under treatment in Nishtar Hospital Multan from 12-11-1986 to 29-11-1986. It is astonishing that no attempts whatsoever were made by the Investigating Officer (Allah Nawaz Inspector) to record his statement at the earliest. He (deceased) was the best person to identify the accused who committed the crime through his dying declaration. Dr. Abdul Rauf P.W.1 stated that Mukhtar Ali remained in his senses all the time during his stay in the hospital. In other words, he was surely capable of making statement. No evidence was led to establish that he was incapacitated to make statement because of his fatal injuries. If his statement had been recorded as early as possible, he would have thrown searching light on the identity of the accused and the manner in which the offences were committed by them. The High Court has also rightly held that the identity of the accused could not be established. Mst. Alam Bibi P.W. Conceded in her cross- examination that "dacoits had been arrested 5 or 7 days after the occurrence." She stated that the police had shown her the photographs of the accused. Similarly, such photographs were shown to Mst. Bhagan and Mst. Jameela Bibi P.Ws. After 15/16 days of the incident. Muhammad Iqbal P.W.
6. Made a similar admission to substantially demolish the prosecution case. Muhammad Iqbal, Muhammad Shafi and Mst. Alam Bibi P.Ws. Had created considerable doubt in the prosecution story because they had failed to prove the identity of the accused. At the top of it, Mst. Alam Bibi, Mst. Bhagan Bibi and Mst. Jameela Bibi P.Ws. Did not participate in the Identification Parade. The photographs of the accused were, nevertheless, shown to the above-said witnesses to enable them to support the prosecution version. It could be assumed that the Investigating Officer was determined to see to it that the respondents were convicted even on the basis of fabricated evidence. We agree with the High Court that the recovery could not be proved by the prosecution beyond reasonable doubt on the basis of evidence of unimpeachable character. The ,High Court aptly observed that "In these circumstances one is left with the impression that 7MM crime empties as also .32 bore empties had been fabricated." (Underlining is ours). Learned counsel did not challenge this observation of the High Court that the crime empties were falsely planted to give substantial support to the case of the prosecution which, otherwise, had no reliable and trustworthy eye-witness account to maintain conviction in this case of capital charge. In other words, this finding would go unchallenged and as such, it had to be accepted for the acquittal of the accused. There is nothing to conclude that the impugned judgment was based on misreading non-reading of the evidence available on record. It is a well-reasoned judgment which had met the ends of justice. Every aspect of the case was considered in coming to irresistible conclusion that the prosecution did not succeed to prove the case to the hilt. There was also no evidence brought on record to show that Mukhtar Ali died of the injuries which he received during the occurrence. It was noted that when he left the hospital, his wounds were still unhealthy and there was no material to indicate that he continued to have his injuries properly dressed by some competent doctor. He, therefore, might not have died of the wounds which were inflicted to him in the occurrence. This being the position, it was correct to say that the case did not fall under section 396, P.P.C. The principles laid down in Ghulam Sikandar v. Mumraz Khan PLD 1985 SC 11 are attracted to the case in hand and we, in turn, respectfully follow them for the safe administration of criminal justice. The relevant observations are:-- "Leave to appeal was granted to re-examine the case with a view to see whether: firstly a reasonable possibility could not be excluded that one person could have caused the injuries and not more than one person; and secondly, in case all the three brothers were involved in the occurrence and had also come armed with spears, this act on the part of all of them could be treated as without pre-meditation. If not whether it was a fit case for lesser sentence.
7. ' We with the help of the learned counsel have gone through the evidence and have also heard lengthy arguments addressed by both the learned counsel for the parties as also the learned counsel appearing for the State."
8. ' Several cases were cited by the learned counsel for the parties with regard to the principle to be followed by this Court regarding appreciation of evidence in an appeal against acquittal. Learned counsel for the complainant appellant cited Ali Sher v. The State and 3 others PLD 1980 SC 317; State through Advocate-General N.-W.F.P. Peshawar v. Amir Nazar and others PLD 1981 SC 286; Mst.
9. Habibun Nisa alias Bivi v. Zafar Iqbal and others 1981 SCM R 95; Nazir Ahmed v. Muhammad Din and others 1981 SCM R 415 and Capt. Mahmood Jan v. Madad Khan and another 1981 SCM R 474.
10. ' Learned counsel for the acquitted accused cited Ahmad v. Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroz Khan v. Capt. Ghulam Nabi PLD 1966 SC 424; Usman Khan v. The State PLD 1969 SC 293; Abdul Rashid v. Umid Ali and another PLD 1975 SC 227; Noora and another v. The State PLD 1973 SC 469; Taj Muhammad v. Muhammad Yousaf and another PLD 1976 SC 234; Fazalur Rehman v. Abdul Ghani PLD 1977 SC 529 and Farid v. Aslam PLD 1977 SC 4.
11. ' It is not necessary to state and comment upon the facts and circumstances of each of the afore noted cases nor it is necessary to make an attempt to deduce any one single rule from these judgments which would help resolved the controversy involved in this case, without proper analysis of the material on record.
12. However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other case-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.
13. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that been fit 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 accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus loose 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 when 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 observances 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 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. (Underlining is ours).
14. Keeping in view the above said dictum, learned counsel for the appellant did not submit before us that the impugned judgment of acquittal was shocking, ridiculous or based on artificial reasons/grounds on the face of record. We are satisfied with the plausible and convincing reasons which persuaded the learned Judges in the High Court to acquit the respondents by extending benefit of doubt to them. In any case, the prosecution evidence does not inspire confidence. It is a case of doubt all around. It is not safe to interfere at this late stage of the case after about ten years of the occurrence. The evidence of the prosecution was fairly and properly appraised to secure the ends of justice. There are, therefore, no merits in these appeals which are dismissed by upholding the impugned judgment of the High Court.