' KHALIL-UR-REHMAN KHAN, J.---This appeal is directed against the judgment. Dated 28-2-1993 whereby Muhammad Yaqoob son of Muhammad, Muhammad Rafique son of Muhammad Yousaf and Abdul Mannan son of Muhammad (respondents Nos.1 to 3) and their co-accused namely Muhammad Shahbaz son of Muhammad Yousaf and Muhammad Safdar son of Muhammad Inayat were acquitted by the Division Bench of the Lahore High Court, Lahore.
2, Muhammad Yaqoob and six others i.e,, the abovementioned five accused acquitted by the nigh Court and Muhammad Yousaf son of Maula Bux and Malik Muhammad son of Abdullah (the two accused acquitted by the trial Court) were tried under sections 302, 148 and 149, P.P.C., for the murder of Sardar Muhammad by the learned Additional Sessions Judge, Sheikupura On 17-2-1990, he convicted respondents Nos.1 to 3 and Muhammad Shabaz and Muhammad Safdar under sections 302, 148 and 149, P.P.C.., while acquitted Muhammad Yousaf and Malik Muhammad.
Muhammad Yaqoob, Muhammad Rafique and Abdul Mannan were sentenced to death, while Muhammad Shahbaz and Muhammad Safdar were sentenced to imprisonment for life. Each one of the convicts was further sentenced to R.I. For one year under section 148, P.P.C.,. In addition, each one of them was directed to pay fine of Rs,10,000 and compensation of Rs,10,000 each which if recovered was directed to be paid to heirs of the deceased.
3. The convicts filed appeal challenging their conviction and sentence while the complainant, the present appellant filed revision petition before the High Court seeking enhancement of sentence of Muhammad Shahbaz and Muhammad Safdar and against the acquittal of Muhammad Yousaf and Malik Muhammad accused. The appeal of the convicts was accepted and they were acquitted while the revision of the appellant was dismissed recording the conclusion that prosecution had failed to prove its case.
4. This Court, on petition for leave to appeal granted leave to appeal as against the three respondents only taking note of the contention that the prosecution had succeeded in establishing the guilt of the respondents beyond reasonable doubt.
5. The reasons given by the learned Judges of the High Court for acquitting the respondents and their co-accused are as under:--
(1) Muhammad Ali P.W.6 (real brother of the deceased) and Muhammad Mansha P.W.7, who used to live with Muhammad Ali in the same house were also witnesses in the case of murder of Muhammad Younis which murder took place about a month prior to the present occurrence.
(2) There were two other eye-withesses of the occurrence but neither they were examined nor any other person though admittedly there were inhabited houses in the vicinity of place of occurrence.
(3) Muhammad Ali P.W.6/complainant had suppressed a material fact in the F.I.R. Which makes him unworthy of credit as he admitted in the cross-examination that a day before the occurrence, Muhammad Akram - brother of Muhammad Safdar (one of the appellants before the High Court) had been murdered for which he and Muhammad Mansha P.W.7 alongwith others were nominated as accused. It was added, in the said case Muhammad Yousaf and Muhammad Shahbaz accused were cited as' prosecution witnesses. All this was not mentioned' in the F.I.R.
(4) In view of grave animosity that the accused (appellants before the High Court) would be entertaining against both the prosecution witnesses namely, Muhammad Ali and Muhammad Mansha, on account of murder of Muhammad Akram taking place only one day before the occurrence, they would not have spared both of them if they had been actually present at the time of occurrence. But, as no harm was done to them, that makes their presence on the spot highly suspicious.
(5) The recoveries of daggers also do not advance the prosecution case as no independent witnesses were examined to prove the recoveries and Muhammad Mansha P.W.7 who testified about it cannot be relied upon for the reasons given above.
(6) The presence of Muhammad Safdar (one of the appellants before the High Court) at the spot is highly doubtful because he had identified the dead body of his brother namely Muhammad Akram in the Mayo Hospital at the time of his post mortem examination which took place on the day of the alleged occurrence.
(7) The enmity between the parties can be judged from the fact that the complainant party did not even spare Malik Muhammad accused aged about 70 years who is a blind person but was also involved in the case and since the role of causing injuries to the deceased could not possibly be given to him, he was attributed Lalkara only.
6. Mr. Ijaz Hussain Batalvi, Senior Advocate, learned counsel for the appellant/complainant contended that the significant part of the evidence on record was not considered and the other part of the evidence has been misread and misconstrued by the learned Judges of the High Court with the result that the conclusions recorded stand vitiated. He added that had the entire evidence been appraised properly, the learned Judges of the High Court would have agreed with the finding of guilt arrived at by the learned trial Court. It was also pointed out that even the reasons which were given by the learned trial Court for holding the appellants and their co-accused guilty were neither noticed nor have been discussed in the impugned judgment. Learned counsel took us through the evidence on record specially the testimony of the two eye-witnesses namely Muhammad Ali P.W.6 and Muhammad Mansha P.W.7 and Mehmood Ahmad P.W.11/Inspector, the Investigating Officer. According to learned counsel for the appellant the testimony of the two eye- witnesses coupled with the medical evidence and the evidence of motive and the recovery of blood-stained dagger from Muhammad Rafique (respondent No,2 herein) sufficiently establish the guilt of the accused/respondents and that the acquittal of the respondents has resulted into miscarriage of justice. He argued that none of the reasons given by the learned Judges in the impugned judgment for acquitting the accused would not be available if the material on record is considered in proper perspective, analysed and evaluated on settled principles of appraisal of evidence in criminal cases.
7. Mian Aftab Farrukh, Senior Advocate, learned counsel for respondents No,1 and 2 in reply argued that each of the reasons given for acquitting the respondents has been taken in different cases decided by superior Courts as valid reason for acquittal. He then referred to certain decided cases wherein one or other of the reasons given in the impugned judgment has been given for acquitting the accused in those cases. He further argued that reasons given in totality provide sufficient justification for acquitting the accused. Learned counsel submitted that the learned Judges of the High Court after appraising the evidence have drawn reasonable and sound conclusions and this Court does not interfere merely for the reason that a different conclusion from that of the Court acquitting the accused can possibly be drawn from the evidence. In support reliance was placed, amongst others, on Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Ali Sher v. The State and 3 others (PLD 1980 SC 317) and Taj Muhammad v. Muhammad Yousaf etc. (PLD 1976 SC 234). Learned counsel for the respondents further argued that there existed long- stand enmity between the parties, Akram brother of Safdar accused having been murdered a day earlier, the accused would not have spared Muhammad Ali P.W., and Muhammad Mansha P.W.,, the alleged eyewitnesses, had they been present at spot. According to learned counsel, as murder of Muhammad Akram had been reported to the Police and the accused party including Muhammad Ali and Muhammad Mansha was nominated as accused in the F.I.R. Muhammad All and Muhammad Mansha would have fled away from their place of residence to avoid their arrest and on this hypothesis their presence at the spot would be highly doubtful as has been inferred by the learned Judges in the impugned judgment. He further pointed out that two other eye-witnesses who were cited in the F.I.R. Were not produced and the two eyewitnesses who were produced are not only inimical but also partisan witnesses and as such their evidence cannot be acted upon for basing the conviction as no corroboration is coming forth on the record from any other independent source. Learned counsel emphasised that Malik Muhammad, a blind elder of 70 years age of the opponent's family was also roped in. This tainted evidence of inimical witnesses was not accepted by the trial Court as against Muhammad Yousaf and Malik Muhammad accused, who were acquitted by the trial Court. The High Court acquitted the remaining five accused holding that the tainted testimony produced by the prosecution was not worth credence and even this Court while granting leave to appeal directed issuance of notices to the three respondents only while refusing leave to appeal against Muhammad Shahbaz and Muhammad Safdar, which implies that the same evidence was considered not worth reliance as against Muhammad Shahbaz and Muhammad Safdar accused. It was argued that the principles of appreciation of evidence in appeals against acquittal are different from the principles applicable in appeals against conviction. It was added that it is only the conclusions which are speculative and artificial, or based on no evidence, resulting into miscarriage of justice, which may warrant interference otherwise the acquittal earned strengthens the presumption of innocence of the accused and said presumption is not to be lightly interfered with.
8. We have given serious consideration of the respective pleas of the learned counsel for the parties. The principles of appraisal of evidence in appeal against acquittal may be noted. In Muhammad Usman and 2 others v. The State (1992 SCM R 489), this Court after examining the case-law on the subject, reiterated the principles noted in the case of Ghulam Sikandar (supra), which apply while appraising evidence in an appeal against acquittal. In addition to these principles, this Court has invariably interfered in cases where the finding of acquittal is not supported by evidence on record and is in fact based on gross misreading and misconstruction of evidence on record resulting into grave miscarriage of justice (See: Khadim Hussain v. Javed Sarwar and another PLD 1996 SC 129. In State v. Abdul Ghaffar (1996 SCM R 678) it was held that Appellate Court will not interfere with an order of acquittal but if the reasons given by the trial Court are of speculative and artificial nature or the findings are based on no evidence or misinterpretation of evidence, or the conclusion drawn by it about the guilt or innocence of the accused is perverse resulting in miscarriage of justice, the Court of appeal, in such a case will re- examine the evidence and draw its own conclusions from it.
9. From the study of the case-law, it follows that to the four principles noted in the case of Ghulam Sikandar (supra), another principle recognized by this Court is that the finding of acquittal is not sacrosanct if the reasons given are of speculative or artificial nature or the findings are based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusions drawn as to the guilt or innocence of the accused are perverse, resulting into miscarriage of justice. The aforesaid principles of appraisal of evidence in acquittal cases are well-settled. The evidence on record and the reasons given for acquittal, in the instant case, may now be examined in the light of these principles, keeping of course, in view the respective submissions advanced by the learned counsel for the parties.
10. The first reason given is that the eye-wintesses being inimical or partisan, the two eye-witnesses named in the F.I.R., were not produced and were given up as unnecessary. In these circumstances, the tainted testimony cannot be made basis of conviction specially when they were not believed in respect of two of the accused who were acquitted by the trial Court. Non-production of the two eye-witnesses is inconsequential as it is not necessary for the prosecution to examine unnecessary witnesses; See: Ziaullah v. The State 1993 SCM R 155. Moreover, the same criticism, as has been made against the eye-witnesses produced, would have been urged against the said witnesses, as they belonged again to the complainant party. In these circumstances, production of more witnesses of the same category would not have advanced the case of the prosecution. So, no adverse inference could reasonably be drawn on account of non-production of the said two witnesses cited in the F.I.R.
11. The mere fact that the eye-witnesses were closely related and had enmity with the family of the accused is not sufficient to refuse to analyse and evaluate their evidence. The rule laid down in such cases is that the testimony of such witnesses, if stands corroborated with the material appearing on record, can be relied upon. It is the uncorroborated testimony of relation-cum- inimical witnesses which is considered insufficient to warrant conviction. The case of Zulfiqar alias Bhutto v. The State (1995 SCM R 1668) refers.
12. Again, there is no basis for the hypothesis that the testimony of the eyewitnesses should not be considered credible as they were nominated in the F.I.R., of the murder of Muhammad Akram of the opposite-party a day earlier, and so they cannot be expected to remain present in the village. Even the learned Judge of the High Court in the impugned judgment have recorded a finding that Muhammad Ali P.W.6 the complaint, who had lodged the F.I.R., has suppressed a very material fact, that is, a day before the occurrence Muhammad Akram, brother of Muhammad Safdar, one of the accused in the instant case, had been murdered for which he and Muhammad Mansha, alongwith others were cited as accused and Muhammad Yousaf and Muhammad Shahbaz accused were cited as prosecution witnesses, and as such this omission to mention this fact in the F.I.R., make him unworthy of credit. The finding as to suppression of m. Terial fact is premised on the basis that Muhammad Ali P.W., knew that the Murder of Muhamind Akram had been reported to the Police and in the said report he and Muhammad Mansha had been nominated as accused and Muhammad Yousaf and Muhammad Shahbaz accused had been cited as prosecution witnesses.
The knowledge of this fact has been assumed by the learned Judges of the High Court, as otherwise there is nothing on the record to support the knowledge of the aforesaid fact, as in cross-examination the only suggestion put and accepted as correct was that Muhammad Akram, a brother of Muhammad Safdar accused was murdered a day before the present occurrence.
Nothing more was asked about the other facts. It is pertinent to note that from the answer given it cannot be reasonably inferred that on the day of occurrence, Muhammad Ali, the first informant, knew all those facts, knowledge of which was attributed to him on the day that he lodged the report. Assuming that he knew that he and Muhammad Mansha have been nominated as accused in the F.I.R., lodged with respect to the murder of Muhammad Akram, omission to state these facts while lodging the F.I.R., in respect of the present incident would not amount to suppression of material fact. Where there is an obligation to speak, a failure to speak will constitute the "suppression of a fact"; but, where there is no obligation to speak, silence cannot be termed "suppression". Thus, mentioning of the murder of Muhammad Akram of the opposite-party a day earlier, does not amount to suppression assuming that this fact was known to the complainant at the time of lodging the report.
13. There is yet another facet of the alleged murder of Muhammad Akram. Learned counsel for the appellant referred to the additional Paper Book wherein report of the Police has been placed on record. This report shows that the F.I.R., registered with regard to alleged murder of Muhammad Akram was cancelled and the accused nominated therein have been discharged. Even the first informant of that case stated on oath that no one has seen the occurrence with his own eyes.
14. Mr. Aftab Farrukh, learned counsel for the respondents/accused contended that this Police Report as was not produced during the trial, the same should not be allowed to be referred to.
However, he did not controvert the existence of the report and the factum of cancellation of the F.I.R., discharge of the accused nominated therein as well as the contents of the report.
15. The above discussion shows that the reason that there was material suppression of the stated facts could not possibly be made a basis for rejecting the prosecution case and the learned Judges of the High Court misdirected themselves in placing reliance on facts which were otherwise not forthcoming from the record.
16. The other conclusion arrived at by the learned Judges of the High Court is that the accused would not have spared the eye-wintesses if they had been actually present at the time of occurrence but the fact that no harm was done to them makes their presence on the spot highly suspicious, cannot reasonably be drawn as Muhammad Mansha was present in the house and he came out in the street after hearing hue and cry raised by the deceased Sardar Muhammad while Muhammad Ali was coming to his house when the accused had launched attack on Sardar Muhammad, the deceased. It was not the case of the prosecution that the deceased was in the company of these two eye-witnesses when the attack was launched by the accused party. Had it been so, then the hypothesis that the two eye-witnesses would not have been spared could be urged. The accused having launched the attack near the houses of the complainant party obviously would flee away after causing injuries to the member of the opposite-party who at that juncture fell into their clutches.
17. The presence of Muhammad Safdar accused at the spot was considered doubtful because he had identified dead body of his brother in the Mayo Hospital at the time of post-mortem examination which took place on the day of the occurrence-subject-matter of the present case.
Identification of the dead body by Muhammad Safdar does not necessarily show his non- participation in the attack launched on the deceased considering the distance of the place of occurrence to the Mayo Hospital. Moreover, as a matter of abundant caution and relying on the, principle of safe administration of justice, Muhammad Safdar appears to have been taken out of the net but that would not necessarily belie the prosecution version.
18. Applying the same principle, this Court in the order granting leave has left out Muhammad Shahbaz accused as well. Muhammad Ali and Muhammad Mansha P.Ws., though belong to the opposite-party but their testimony could not be shattered during cross-examination. The oral account of the eye-witnesses stands supported from the medical evidence on record. The recovery of daggar also cannot be discarded merely because Muhammad Mansha was one of the attesting witnesses of the recovery.
19. Again, learned Judges of the High Court have misread the evidence while observing that the complainant party has not even spared Malik Muhammad accused aged about 70 years who is a blind person and was involved by attributing Lalkara to him, since the role of causing injuries could not possibly be assigned to him. As against above, the facts on record reveal that the allegation as against Malik Muhammad was that the attack was launched by the other accused at his behest.
Malik Muhammad was, as such, acquitted by the trial Court as obviously no evidence was produced to prove the said accustion contained in the F.I.R.
20. Considering the evidence on record in its totality, we are satisfied that the conclusions recorded by the learned Trial Court, which conclusions were neither noticed nor discussed by the learned Judges of the High Court, were drawn properly and the case as against the respondents was established beyond reasonable shadow of doubt.
21. For the reasons stated above, this appeal is accepted. Judgment of the High Court is set aside as against the respondents--Muhammad Yanoob, Muhammad Rafiq and Abdul Manan with the result that their acquittal is also set aside.
' As regards the sentence, they were awarded death sentence by the learned trial Court. The question of the sentence to be awarded at this stage to the respondents has received our consideration. According to the medical examination, injuries Nos.1, 2 and 10 individually were sufficient to cause death. Other injuries caused were found to be not grievous. Injury No,1 was caused by Muhammad Yanoob, Injury No,2 was caused by Muhammad Rafique and Injury No,10 was caused by Abdul Manan---respondents Nos.1 to 3 respectively. These injures individually and collectively resulted into death of Sardar Muhammad deceased. Long-standing enmity between the parties is admitted. Private revenge though has not been considered as a mitigating circumstance in the matter of sentence, but at the same time the tradition of taking revenge hardening into families to which the accused belong-becomes almost an obsession. In view of the aforenoted factor and the fact that the interest of justice will stand satisfied by awarding life imprisonment to each respondent instead of death penalty, we convict the three respondents namely, Muhammad Yaqoob, Muhammad Rafique and Abdul Manan under sections 302/148/149, P.P.C., and sentence each one of them to undergo imprisonment for life and to pay a fine of Rs,10,000 each. In default of payment of fine, each of the respondent shall undergo further R.I. For two years. All the accused shall pay compensation of Rs,10,000 each to the heirs of the deceased in terms of section 544-A of Cr.P.C., failing which each respondent shall undergo R.I. For six months.
Benefit of section 382-B, Cr.P.C. Shall, however, be extended to the respondents. Respondents shall be taken into custody forthwith to undergo the sentence awarded by this Court.