MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 11- 3-1992 of the Federal Shariat Court by which on acceptance of the appeal filed by the respondents, their conviction under sections 302/34, 307/34 and 397, P.P.C., and sentences of death each with fine of Rs,30,000 in default whereof to undergo R.I. For 3 years, 5 years R.I. Each with fine of Rs,5000 in default whereof to undergo one year R.I. And 7 years R.I., respectively awarded to them by the trial Court through judgment dated 9-2-1992, were set aside and they were acquitted of the charges.
2. The facts of the case shortly stated are that on complaint of the appellant through F.I.R. No,37 dated 21-2-1989, a case was registered against the respondents under sections 302/34, 307/34, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hodood) Ordinance, 1979.
According to the facts disclosed in the F.I.R., the complainant i.e, Haji Muhammad Mansha, the present appellant and his brother Zafar Hussain, deceased used to run the business of tractors spare parts in a shop at Sargodha Road, Chiniot. They used, to bring spare parts from Sargodha for their shop. On 21-2-1989, both the brothers had settled their programme of going to Sargodha to bring spare parts. At that time, accused Saif who was running business of tubewell fitters close to the shop of the complainant and other two accused Ahmad Ali and Allah Yar who used to purchase goods from the complainant party, were present in the shop of the latter and in this way came to know of their programme. At about 7 p.m., the complainant and his brother started for Sargodha on their Suzuki Car No, F.D.J. No,325. The complainant was driving the Car. When they reached Chenab bridge at about 8.00 p.m. And were near the rainy bridge, they saw accused Saif who gave them a signal to stop. The complainant/appellant stopped the Car. Sail accused brought his brother Zafar Hussain down therefrom and tried to forcibly take him towards the bridge. When the complainant tried to interfere, accused Ahmad Ali and Allah Yar who were both armed with knives, also appeared and all the three accused forcibly took Zafar Hussain towards the bridge where accused Sail and Allah yar caught Zafar Hussain from the hands and feet respectively and accused Ahmad Ali brought out a knife from the right side pocket of his shirt and started cutting his neck whereby he was seriously injured. When the complainant tried to approach his brother, he was threatened by Ahmad Ali, accused the same fate. All the three accused snatched the amount of Rs,5,400 consisting of 5 notes of Rs,1,000 and 4 notes of Rs,100 from the pocket of Zafar Hussain who had also got a photostat copy of identity card in the same pocket which was also taken away by the accused. The latter also snatched the registration book of the car and other papers from the complainant and fled away from the spot. During that incident, accused Saif also gave two knife blows to the complainant on his both wrists. The alarm raised by the complainant attracted Rehmat Ali alias Kaley Khan who reached the spot and saw the occurrence in the light of the car. The complainant was going towards the police station which was nearby to get a case registered but he met Muhammad Aslam Khan, S.I. Of Police Station Rabwah who recorded the report and sent the same to the Police Station where the said F.I.R. Was recorded.
3. P.W.10 Muhammad Aslam Khan, S.1./S.H.O. Went at the spot where Zafar Hussain was lying injured.
He prepared the injury sheet and sent Zafar Hussain and Muhammad Mansha both to Civil Hospital, Chiniot for medical treatment under the escort of Muhammad Khan, H.C. The latter came back from the Hospital and informed the S.H.O. That Zafar Hussain had succumbed to the injuries while he was being shifted to Faisalabad. He arrested accused Ahmad Ali and Allah Yar on 24-2- 1989 from the Pull Rajbah of Kot Isma il. At the time of arrest, both the accused were in Suzuki Car No,F.D.J. 325, while accused Muhammad Ali was driving the same and Allah Yar was sitting in the front seat. The said Car was taken into possession. The place of recovery of this Car was about 15 miles away from Police Station Rabwah. On 22-2-1989, accused Saif was arrested who led the S.H.O. While in police custody to the recovery of blood-stained knife (Exh.P2) from a 'Kikkar' tree near Sailabi Pull. On the same day, accused Ahmad Ali while in police custody led to the recovery of bloodstained knife (Exh.PI) from Pull Sailabi Channel No,101 from a bush. On 7-3-1989, accused Allah Yar while in police custody disclosed and offered to lead to the recovery of registration book of Car No, F.D.J. 325, knife and money, and subsequently knife (Exh.P3), registration book (Exh.P4) and an amount of Rs,1,200 (Exh.P5/1-3) were recovered from Sarkanda bushes at a distance of two furlongs from the place of occurrence. The currency notes Were three in number, one of Rs,1,000 and two of Rs,100 each. On the same day, accused Saif who was still in police custody led to the recovery of Rs,2,000 (Exh.P7/1-2) and photostat copy of identity card of Zafar Hussain, deceased (Exh.P6) from his house lying under the bedding. On the same day again accused Ahmad Ali led to the recovery of Rs,1,000 (Exh.P8) and driving licence of the deceased (Exh.P9) from his house situated in village Pitraki.
4. The respondents were sent up for trial after investigation. The prosecution case was based on the ocular account of the incident given by P.W.1 Muhammad Mansha, the complainant and P.W.2 Rehmat Ali. It was corroborated by the medical evidence of P.W.8 Dr. Muhammad Ismail who examined the injured Zafar Hussain and made the medico-legal report, who found the following injuries on the person of the deceased:-
1. An incised wound 6 cm x 3 cm on the front of the neck at the thyroid level. Profuse bleeding from the wound. Profuse, haemotnisis. Pulse very weak and thready, blood pressure very low and unrecordable, patient semi conscious.
2. An incised wound 10 cm x 1/4 cm on the front of neck skin deep just about injury No, 1 ."
5. The trial Court after considering the above mentioned evidence and circumstances of the case came to the conclusion that the prosecution had succeeded in proving its case without any shadow of doubt against the respondents, therefore, they were convicted and sentenced as stated above.
6. The respondents filed appeal before the Federal Shariat Court which has been accepted through the impugned judgment by which the conviction and sentences recorded by the trial Court against the respondents in its judgment dated 9-2-1992 were set aside and they were acquitted of the charges. This appeal is directed against this judgment by leave of the Court which was granted through order dated 13-6-1994 which reads thus:- "After taking us through the evidence on the record, the learned counsel has pointed out that certain findings/conclusions arrived at by the learned Federal Shariat Court on material aspects are based on misreading of evidence. Leave to appeal is granted to consider whether the principles governing appraisal of evidence in criminal cases were correctly followed by the learned Federal Shariat Court while recording the finding of acquittal. Bailable warrants in the sum of Rs,50,000 with two sureties in the like amount returnable to District Magistrate, Jhang be issued against Allahyar, Ahmad Ali and Saif respondents."
7. Learned counsel for the appellant submitted that the findings of the Federal Shariat Court are based on misreading and non-reading of material pieces of evidence and certain assumptions based on acute misreading of the record. He argued that the evidence of P.W.2 was discarded mainly on the ground that neither his name as eye witness was mentioned in the F.I.R. Nor in the site plan prepared by the Investigating Officer, his presence was shown at the spot. He called our attention to the F.I.R. And the site plan and we find that in both of them, the name of Rehmat Ali (P.W.2) has been mentioned. He has been 'shown in the site plan at Serial No,9.
8. It has also been assumed by the Federal Shariat Court that no mention had been made about the injury allegedly suffered by Muhammad Mansha, complainant in the incident, in the F.I.R. And his injury report was made not on the same day. We have been taken through the evidence from where it is established that injury on the wrist of the appellant as alleged was not only mentioned in the F.I.R. But the injury report was also, prepared by the S.H.O. On the same day.
9. The Federal Shariat Court also proceeded on the assumption that incriminating articles were got recovered after 20 days during which period the accused persons remained in the custody of the police from the evidence, this assumption is also found to be incorrect. Accused Ahmad Ali and Allah Yar were arrested on 24-2-1989 and two blood stained knives were recovered on 26-2-1989 and not twenty days after their arrest.
10. We have noticed that these erroneous and wrong assumptions not supported by evidence rather based on misreading and non-reading of evidence have greatly influenced the findings of the Federal Shariat Court. Learned counsel for the State argued on the strength of judgment reported as The State v. Abdul Ghaffar (1996 SCM R 678), that the case should be remanded to the Federal Shariat Court for deciding the appeal afresh in accordance with law. Learned counsel for the respondents-accused also argued that if this Court comes to the conclusion that the findings of the Federal Shariat Court suffer from misreading of the record, it will be safe to remand the case for disposal of the appeal afresh.
11. Considering that the findings of the Federal Shariat Court in favour of acquittal of the respondents have been materially influenced by certain wrong and erroneous assumptions based on misreading and non-reading of the record, we consider it a fit case for remand to the said Court for disposal of the appeal afresh in accordance with law. We have refrained from commenting upon the merits of the case and the evidence lest it may not prejudice any of the parties before the Federal Shariat Court which shall decide the appeal on its own merits after considering the evidence and forming its independent opinion.
12. For the foregoing reasons, this appeal is accepted, the judgment dated 11-3-1992 of the Federal Shariat Court is set aside and the case is remanded to the said Court for disposal of he appeal afresh in accordance with law. The respondents/accused shall be taken into custody and lodged in the death cell till the disposal of the appeal.