' HAMID ALI MIRZA, J.---This criminal appeal with leave of this Court is directed against the judgment dated 10-10-1993 of the learned Judge in Chambers of the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No,24 of 1991/BWP, whereby the said appeal filed by respondents Nos.1 and 2 was allowed thereby they were ordered to be released while connected criminal revision filed by the appellant/complainant was dismissed.
2. Brief facts of the case are that the appellant/complainant Jan Muhammad P.W.7 lodged F.I.R.
(Exh.P.1) at Police Station Head Rajkan, District Bahawalpur stating therein that his wife's brother Sher Muhammad (P.W.8) had got 20 acres of land in Chak No,65-DB on lease from Muhammad Islam and Muhammad Ikram, Pathan by caste, which land was being cultivated by him, said lessee Sher Muhammad, his brother Ahmed Ali (deceased) and Nazar Muhammad. On 3-9-1988 at 7-00 a.m., he alongwith Sher Muhammad, Ahmed Ali and Nazar Muhammad were working in the said land when respondents/accused Muhammad Ali and Khurshid Ahmed both armed with hatchets, Ghulam Haider respondent No,3 armed with spear and Muhammad Ashraf and Muhammad Akram (absconders) sons of Ghulam Haider armed with hatchets came there. Immediately then, Muhammad Ali respondent gave a blow on the head of Ahmed Ali (deceased) with his hatchet from its right side and soon after that Khurshid Ahmed respondent gave hatchet blow on the head of Ahmed Ali deceased with his hatchet from its right side which hit the left side of his head.
Thereafter Muhammad Ali respondent and other co-accused started inflicting injuries to Ahmed Ali, Sher Muhammad and Nazar Muhammad who raised hue and cry whereupon Mst. Mehran and Mst. Amna, wife of Ahmed Ali, Muhammad Ramzan and Muhammad Sharif reached there. Mst.
Mehran and Mst. Amna tried to rescue the complainant party from the respondents/accused but the, latter also injured them. Muhammad Ramzan and Muhammad Sharif who were guests staying with the complainant party entreated the respondents Muhamamd Ali and others and thereafter they left to their houses. Motive for occurrence was stated to be that Muhammad Ali respondent and other accused persons wanted that the complainant party should abandon the land, and former to take over possession by force from the complainant party who were not willing to relinquish the land, therefore, the respondents and co-accused came to land in dispute and inflicted injuries on the head of deceased and also upon the complainant Jan Muhammad, Sher Muhammad, Nazar Muhammad (given up) Mst. Anma and Mst. Mehran.
3. After registration of F.I.R. And completion of usual investigation, the respondents and co-accused were charged and tried by the learned Sessions Judge, Bahawalpur who after examining the prosecution witnesses, examined respondents under section 342, Cr.P.C. The co-accused Ashraf and Akram were already declared absconders. The respondents/accused in their 342, Cr.P.C.
Statement denied the charged offence when the respondent/accused Khurshid Ahmed in answer to question No,9 stated that: "on the day of occurrence Ahmed Ali (deceased) tried to outrage the modesty of Mst. Maqboolan, wife of Muhammad Akram absconding accused and caught hold of her in the bushes in Chak No,10/DNB when he (Khurshid Ahmed) being empty-handed tried to save her upon which Ahmed Ali attacked him and caused injuries upon him. Ashraf and Akram absconding accused also tried to save the modesty of Mst. Maqboolan and his (Khurshid Ahmed's) life from Ahmed Ali and others. Jan Muhammad, Nam Muhammad, Sher Muhammad, Mst. Mehran and Mst. Amna also took part in the fight and were injured when Akram and Ashraf were also injured. The respondents Ghulam Haider and Muhammad Ali were not present at the place of occurrence". Rest of the respondent also denied the charged offence and stated that they were innocent and falsely implicated in the case and the weapons did not belong to them. The respondent/accused in defence examined Mst. Maqboolan as D.W.1.
4. After recording of above evidence and hearing the learned counsel for the parties by the trial Court, the respondents accused Muhammad Ali and Khurshid Ahmed were convicted under section 302/34, P.P.C. And sentenced to life imprisonment with a fine of Rs,10,000 each and in default to suffer further one year R.I. The respondents/accused were also directed to pay compensation of Rs, 10,000 each under section 544-A, Cr.P.C. Which, if realised, be paid to the legal heirs of the deceased and in default to suffer further six months' R.I. Both the respondents/accused were also convicted under section 307/34, P.P.C. And sentenced to three years' R.I. On three counts and fine of Rs,1,000 and in default in the payment of fine, each of them was to suffer six months' R.I.
On three counts. Respondents/accused were also convicted under section 323/34, P.P.C. And sentenced to six months' S.-I. On two counts and fine of Rs,500 each and in default in payment of fine to suffer three months' S.-I. And fine if realised was to be paid to injured Mst. Mehran and Mst Amna. Substantive sentences passed were to run concurrently. The respondent/accused Ghulam Haider was acquitted giving him benefit of doubt.
5. The respondents/accused preferred Criminal Appeal No,24 of 1991 and the appellant/complainant filed criminal revision application against the judgment of the learned trial Court when the appeal of the reSpondents/accused was allowed and criminal revision filed by the appellant/complainant was dismissed as per impugned judgment, hence this appeal. This Court, while granting leave to appeal on 30-4-1994 in paras: 3 and 4 observed:-- "3. In support of the above petition Choudhry Muhammad Ashraf Wahlah, learned counsel for the petitioner, has vehemently contended that the incident was even admitted by respondent No,2 in his 342 statement in reply to question No,9 and the only question before the learned Judge in Chambers was, whether the defence version that the deceased tried to outrage the modesty of Mst. Maqboolan wife of Muhammad Akram, absconding co-accused was plausible keeping in view that as many as five persons from the complainant side received injuries, two of them even received one grievous injuries each.
' It has further been urged by him that since there was no deep-rooted enmity between the parties, the testimony of the five injured eyewitnesses could not have discredited merely on the ground of relationship with the deceased.
4. We are inclined to grant leave to appeal against the respondents Nos.1 and 2 to consider the question, whether the learned Judge in Chambers was justified in reversing and setting aside convictions and sentences in view of material available on record."
6. We have heard the appellant in person, Syed Asghar Hussain Sabzwari, learned counsel for the respondents/accused and Mr. Muhammad Zaman- Bhatti, learned counsel for the State/respondent No,4 and carefully perused the entire evidence on record in the light of arguments advanced keeping in view the established norms of justice for evaluation of evidence and the scope of appeal against acquittal.
7. The appellant has submitted that the learned Judge in Chambers has illegally and wrongly given benefit of doubt to the respondents and acquitted them of the charge which stood established beyond reasonable doubt in view of the 'prosecution evidence considering the testimony of four injured prosecution evidence considering the testimony of four injured prosecution witnesses of the occurrence, whose presence at the place of incident was even not denied by the respondents/accused. He further submitted that the ocular testimony of injured P.Ws. Is corroborated by recovery of blood-stained hatchet, medical evidence and motive, which proved the guilt of the respondents/accused beyond reasonable doubt. He submitted that the plea of defence with regard to outraging the modesty of Mst. Maqboolan was concocted and afterthought which was not enough to discard overwhelming confidence-inspiring ocular version, corroborated by recovery, motive and medical evidence. Learned counsel for the respondent submitted that the petition was barred by fifteen days which cannot be condoned. He further submitted that standards to assess the evidence in appeal against acquittal are quite different from those laid down for appeal against conviction considering that the accused/respondents in case of acquittal have double presumption of innocence in their favour and further that no gross injustice has been done in the administration of criminal justice by the judgment of acquittal passed by the learned Judge in Chambers.
8. We find merit and substance in the submissions made by the appellant.
9. Learned Judge in Chambers as per impugned judgment has acquitted the respondents/accused on the grounds (i) that the prosecution has not come to the Court with clean hands and has suppressed the facts of case as well as injuries on the person of the respondent Khurshid Ahmed; (ii) P.W.7 appellant/complainant Jan Muhammad, in the F.I.R. Has not stated that the deceased after receipt on his head ran and at a distance of two squares he was encircled by the respondents/accused party and was again given blows on his head and .Other parts of the body when P.W.8 Sher Muhammad, P.W.9 Mst. Mehran and P.W.10 Mst. Amna had unanimously stated that the deceased had run to distance of two squares from the place where he was given injuries with hatchets by Muhammad Ali and Khurshid Ahmed and there in Chak No,12, Square No,13, Killa No,21 he was again given injuries by the accused, whereas the fight started in Chak No,65/DB, Killa No,19 of Square No,76 at the distance of two squares; (iii) the deceased after infliction of two injuries on his head could not have been able to move and cover the distance of two squares in view of the medical evidence of Dr. Muhammad Sher Zaman who declared injuries Nos.1, 2 and 4 on the person of deceased to be fatal; (iv) Deceased tried to molest Mst. Maqboolan wife of Muhammad Akram and tried to commit rape upon her; (v) eye-witnesses have made dishonest improvements and the ocular testimony on record was not consistent with the medical evidence furnished on record and further they being closely related to deceased, their testimony cannot be relied upon unless there being very strong and independent corroboration.
10. The prosecution in order to prove the guilt of the respondents/accused has produced (i) ocular version consisting of four injured P.Ws. Viz. P.W.7 Jan Muhammad, P.W.8 Sher Muhammad, P.W.9 Mst.
Mehran and P.W.I0 Mst. Amna widow of deceased Ahmed Ali; (ii) evidence of motive based on the testimony of P.W.7 Jan Muhammad and P.W.8 Sher Muhammad, (iii) medical evidence consisting of P.W.11 Dr. Sher Zaman; (iv) recovery of blood-stained hatchet from respondent Khurshid Ahmed and Chemical Examiner's Report Exh.P.V. Tendered in evidence by Mr. Javed Ashraf APP as per his statement
11. In view of the scope of an appeal against acquittal, it would be fair and proper to state in brief the ocular testimony and other circumstantial evidence so as to appreciate if the same had been assessed in accordance with the established norms of justice laid down by this Court in criminal matters by the learned Judge in Chambers.
12. Admittedly incident has taken place on 3-9-1988 and the F.I.R. Was lodged on the same day with promptness. P.W.7 complainant/appellant Jan Muhammad in his testimony has deposed that he alongwith Ahmed Ali, Sher Muhammad and his nephew Nazar Muhammad were clearing their land and preparing it for crop when at 7-00 a.m. Muhammad Ali and IChurshid Ahmed armed with hatchet, Muhammad Ashraf, Muhammad Akram and Ghulam Haider came there when Ashraf and Akram were armed with hatchets and Ghulam Haider was armed with 'Barchha. Muhammad All inflicted a hatchet blow on the right of the head of Muhammad Ali and they ran and the accused/respondents followed them and encircled them after covering two squares distance when his wife Mst. Mehran and Mst. Amna wife of Ahmed Ali also ran with them. Muhammad Ali respondent/accused inflicted second blow on Ahmed Ali's head and then blow was given by Khurshid Ahmed with hatchet also on the head of Ahmed Ali then other accused inflicted injuries upon him, Sher Muhammad, Ahmed Ali and Nazar Muhammad when Mst. Amna and Mst. Mehran beseeched the respondents/accused for mercy but even they were beaten. Muhammad Ramzan and Muhammad Sharif had come to their house who had also followed the ladies to the spot then on their cries villagers were attracted and then the accused party ran away. The accused wanted to occupy the land forcibly taken on lease by his brother-in-law and in order to harass them they resorted to the offence. P.W.8 Sher Muhammad has fully corroborated the testimony of Jan Muhammad. P.W.9 Mst. Mehran and P.W.10 Mst. Amna have also fully corroborated the ocular testimony of P.Ws. Jan Muhammad and Sher Muhammad. Their ocular testimony is corroborated by medical evidence as per P.W.11 Dr. Sher Zaman who held post-mortem examination upon the dead body of the deceased so also examined four P.Ws. And fifth injured but was given up.
Deceased Ahmed Ali had the following injuries on his person:-- "(1) An incised wound 6 x 2 c.m. x bone deep horizontal in direction above the right eyebrow. The underlying frontal bone was fractured.
(2) An incised wound 5 x 2 c.m. x bone deep on the left side of front of head. It is oblique indirection.
(3) An incised wound 4 x 1-1/2 c.m. x bone deep at the top of the mid head. It is oblique in direction.
(4) An incised wound 6 x 2 c.m. x bone deep on right side of the head above the right ear.
(5) There was huge reddish swelling encircling the whole of the lower part of right thigh. Right femour at its lower end.
(6) There was huge swelling encircling the whole of the lower part of the left thigh. It was also fractured.
(7) An incised wound 2 x 1 c.m. x bone deep on right leg at its front.
(8) An incised wound 2 x 1 c.m. x bone deep on left leg at its front.
(9) An incised wound 1 x 1 x 1 c.m. On outer side of right ankle joint.
' P.W.8 Sher Muhammad was found having the following injuries on his person:-- "(1) An incised bleeding wound 3 x 1-1/2 c.m. x bone deep on the front of the left side of head.
(2) An incised bleeding wound 3 x (sic) x c.m. x 2 c.m. At the back of right side of neck.
(3) A reddish contused swelling encircling the whole of the right forearm.
(4) A contused reddish swelling 3 x 3 c.m. On front of right upper arm.
(5) An incised bleeding wound 2 x 1 x 1 c.m. At the Palmer surface of tip of left index finger.
(6) An incised bleeding wound 3 x 1-1/2 c.m. x bone deep on the front of lower part of right knee- joint.
(7) A reddish contused swelling 2 x 2 c.m. At the back of the left leg.
(8) A reddish contused swelling 4 x 3 c.m. At the lower part of the front of left side of chest.
' Nazar Muhammad who was not examined had the following injuries:-- "(1) An incised bleeding wound 3 x 1 x 2 c.m. On left side of head, above left eyebrow.
(2) A lacerated wound 2 x 1 x 1 c.m. At the back of right forearm.
(3) A reddish contused 2 x 2 c.m. At the back of left wrist-joint.
(4) A reddish contusion 4 x 4 c.m. On the outer side of mid of left thigh.
' P.W.9 Mst. Mehran Bibi wife of Jan Muhammad was found the following injuries:-- "(1) An incised wound 2 x 1 x 1 c.m. On the inter space of left little and left ring finger.
(2) A reddish contusion 3 x 3 c.m. On outer side of mid of right thingh.
'(3) A reddish contusion 3 x 3 c.m. On the outer side of mid of left thigh.
' P.W.10 Mst. Amna Bibi wife of Ahmed Ali aged fifty years was found the following, injuries on her person:--
(1) An abrasion 2 x 2 c.m. At the back of mid of right forearm.
(2) An abrasion 2 x 2 c.m. At the back of left leg at its mid.
(3) A reddish contusion 5 x 5 c.m. On the outer side of mid of right thigh.
(4) A reddish contusion 5 x 5 c.m. On the outer side of mid left thigh.
(5) A reddish contusion 3 x 3 c.m. At the back.
' The respondent/accused Khurshid Ahmed was found having the following injuries:--
(1) An incised bleeding wound 6 x 1 x 1 c.m. On the outer side of right upper arm extending from the mid of right upper arm to the outer side of right elbow joint.
(2) An incised heavily bleeding wound 10 c.m. In length x 2-1/2 c.m. In width and through between the palmer and dorsal surfaces of the back of the right hand extending from the mid of the second meta corpal bone to the mid of the inner side of proximal phalanyx of right index finger. The proximal phalanyx and second meta corpal bone were cut in the direction of wound. The underlying tissues were also cut. There was also an incised wound 2 x 1'x 2 c.m. At the palmer surface of proximal part of right middle finger.
13. On thorough scanning of the ocular testimony of four injured eyewitnesses except the fifth injured Nazar Muhammad who was given up, their testimony has been quite consistent and has been found to corroborate each other and their testimony could not be shattered or discredited in spite of the lengthy and detailed cross-examination by the learned defence counsel. All the injured eye-witnesses are quite natural and are admitted to be present at the relevant time at the place of occurrence which fact has not been even denied by D.W.1 Mst. Maqboolan and by respondent Khurshid Ahmed in answer to question No,9 wherein he stated that Ahmed Ali, Jan Muhammad, Nazar Muhammad, Sher Muhammad, Mst. Mehran and Mst. Amna also took part in the fight and were injured. All the injured eye-witnesss have unequivocally implicated the respondents for causing the murder of deceased Ahmed Ali and also having caused injuries to four P.Ws. Namely, Jan Muhammad, Sher Muhammad, Mst. Mehran and Mst. Amna and also to Nazar Muhammad who was not examined. Their ocular testimony is fully corroborated by medical evidence on account of fatal, grievous and simple injuries having been inflicted upon the deceased and other P.Ws. And Nazar Muhammad. Testimony of abovesaid P.Ws. Was fully believed and appreciated in accordance with the norms of dispensation of criminal justice by the learned Sessions Judge so also their presence at the place of occurrence was not disputed by the learned Judge in Chambers and they having received the injuries in the incident but their testimony was not relied upon only on the ground that they did not state as to how respondent Khurshid Ahmed got two injuries on his person and further that the deceased could not have covered the distance of two squares after receiving fatal injuries on his person. On scanning and scrutiny of evidence on record it would appear that even the complainant P.W.7 in his subsequent statement before the Police stated that after first blow they ran and covered distance of two squares whereafter the deceased and he and other P.Ws. Were given hatchet blows. Mere fact that P.W.7 did not state in the F.I.R. That after receipt of one blow, the deceased and P.Ws. Ran to save themselves from the respondents/accused and covered distance of two squares would not by itself be enough to discard the testimony of injured P.Ws. Whose presence at the place of incidence at the relevant time has been proved beyond any reasonable doubt by the learned two Courts when the trial Court also believed their testimony to be reliable and trustworthy but the learned Judge in Chambers did not -rely upon their testimony as stated above and further P.Ws. Being relative of the deceased. Speaking with due respects to the learned Judge in Chambers, we are considered opinion that the reasons assigned for discarding the ocular testimony of injured four P.Ws. Were unreasonable, unsound and artificial considering that the evidence on record has not been, appraised according to norms of justice, so also conclusion arrived at were in violation of the principle of law laid down by this Court. It' is settled by this Court that mere relationship of a witness would not mean that the witness was interested and his testimony was not liable to be believed when the same is found to reliable, trustworthy and confidence-inspiring on the material points.
Mere fact that P.W.7 did not state in the F.I.R. About the injuries which were found on the person of respondent/accused Khurshid Ahmed would neither nullify/brushed aside his testimony or of other injured P.Ws. With regard to their version about the injuries inflicted upon the deceased and other P.Ws. By the respondents/accused on which points prosecution evidence could not be shaken to show that P.Ws. Have not stated the truth, considering also that the F.I.R. Being neither substantive evidence nor exhaustive document and if the detailed facts have not been mentioned, it would not diminish its correctness. Reference may be made to Muhammad Hussain and another v. The State (1993 SCM R 1614). It has been often observed that normally complainant's witness disown having caused injuries to the rival accused party on the ground that if they admit the fact having caused the injuries to rival party they would be held responsible for the incident but the said omission or repudiation only would not be enough to impeach/shake their veracity in presence of other evidence confidence-inspiring evidence. It has been settled by this Court time and again that the grain is to be sifted from the chaff so as to arrive at truth of the occurrence, therefore, it would be necessary to appraise the evidence in entirety to sift grain from chaff so that essential portion of the testimony of the P.Ws. Which has probability and reliability in the peculiar circumstances of case could be believed or acted upon or otherwise as held by this Court in (i) The State v. Mushtaq Ahmad (PLD 1973 SC 418 at page 427), (ii) Piran Ditta and others v. The State (PLD 1973 SC 300) and Allah Bakhsh v. Ghulam Rasool and others (1990 SCMR 223 at page 230, para. 10).
14. The learned Sessions Judge in the judgment dated 25-2-1991 observed that Mst. Maqboolan could not have gone to ease herself alone but would have preferred to have company of another female for going to ease herself and for that purpose would have utilized the cotton crop standing at the short distance from her house, and her going alone to distance of two squares without being accompanied by any other female-folk who were available in her house as per her statement on record to ease herself in the background of the country life of our village society, her testimony appeared to be unnatural, false and unbelievable. It may also be stated that she could not give any account or details of injuries sustained by five P.Ws. In the incident and if she was present at the place of occurrence why she was not given injuries when other two ladies and respondent Khurshid Ahmed were given injuries. Besides it, she also stated that on her alarm Muhammad Ashraf and Muhammad Akram reached the spot after half an hour while from the same distance P.Ws. Reached there to rescue Ahmed Ali deceased who were also injured which version of her manifestly belied her being present at the, place of incident in view of admitted position and evidence on record consequently defence theory of outraging her modesty by the deceased would fall to the ground. It has been alleged by the respondents/accused that Muhammad Akram and Muhammad Ashraf were inflicted injuries by the complainant party but they did not surrender and remained absconders till the conclusion of trial and they also did not lodge any report about outraging the modesty of Mst, Maqboolan which would also be ex facie pointer to their guilt that after commission of offence they went underground and remained fugitive of law. We are of considered opinion that the reasons given by the learned Sessions Judge who tried the case of respondents/accused are cogent, valid in accordance with legal principles and guidelines laid down for evaluation of evidence. The reasons given by learned Judge of the High Court in rejecting the confidence-inspiring testimony of four injured P.Ws. Corroborated by medical and recovery evidence are obviously untenable considering that defence version of outraging the modesty of Mst. Maqboolan Bibi to which undue weight has been attached was false, farce, afterthought and no prudent man could believe it in the circumstances of the case when kept in juxtaposition to the prosecution evidence.
15. So far the motive for the commission of offence on the part of the respondent/accused, P.W.7 Jan Muhammad and P.W.8 Sher Muhammad have deposed that the land was on lease with them vide Exh. P.J. Which was previously with the respondents/accused and they wanted to dispossess the complainant party from the land and on their refusal, the respondents/accused attacked them. The said ocular testimony on the point of motive could not be controverted by the respondents/accused through adequate, reliable material. Muhammad Islam P.W.1 also deposed that land was leased out to Sher Muhammad for a period of one year from 1988 to 1989 and lessee was to put in possession of leased land which fact was also admitted by D. W.1 Mst. Maqboolan. The motive as stated by prosecution stood proved. So far the recovery of blood-stained hatchet from the respondent/accused Khurshid Ahmad, P.W.4 Ali Muhammad deposed that the respondent/accused Khurshid Ahmad led police party to the recovery of blood-stained hatchet P.5 which was kept in one of room of his house in lusty Paiti", on recovering, it was sealed and such memo. Exh.PC was prepared and signed by him and by co-Masheer Noor Muhammad and the fact of it being blood-stained with human blood was confirmed vide report of serologist Exh.P.W. As such recovery of blood-stained knife stood proved from respondent/accused Khurshid Ahmad and evidence in the said respect could not be shaken or controverted by adequate/reliable material.
Mere suggestion in the negative made in the cross-examination of P.Ws. Would not be enough to detract the testimony of P.Ws.
16. Learned Judge in Chambers has not only misread the evidence but has also evaluated the same against the norms of dispensation of criminal justice resulting in miscarriage of justice. It may be observed that the learned Judge in Chambers has not pointed out as to what dishonest improvements were made by the P.Ws. Mere fact that P.W.7 Jan Muhammad complainant stated about the incident taking place in the area of Chak No,65/DB and did not state the fact that the deceased and other P.Ws. After receipt of injuries ran from the first place of occurrence to another place in Chak No,10, Sq. No,13, Killa No,21 at a distance of two squares where also deceased was given hatchet injuries when after infliction of first fatal injury, the deceased could not have moved distance of two squares equal to 443 Karams (as deposed by P.W.14 Muhammad Munir Patwari, equal to 738 yards) would not be enough to nullify/diminish/impeach the ocular testimony of all the injured P.Ws. Who had deposed that after receipt of first injury, deceased in order to save himself, ran and covered two squares distance considering that their testimony being confidence- inspiring, reliable and truthful as held by the learned trial Court corroborated by medical evidence and recovery evidence of hatchet and further absconsion of co-accused namely Muhammad Ashraf and Muhammad Akram whose presence was even admitted by D.W.1 Mst. Maqboolan. It may be stated here that the deceased was inflicted in all nine injuries out of which seven injuries were incised wounds while injuries Nos.5 and 6 were grievous in nature and were caused by blunt weapon. It is true that the Doctor deposed that injuries Nos.1, 2 and 4 were fatal but injury No,3 which was also incised wound at the top of mid of head was not stated to be fatal. It was possible that out of 4 incised wounds on the head, injury No,3 which has not been declared to be fatal on the head was inflicted first upon the deceased which fact was in harmony with the ocular testimony of four injured eye-witnesses who deposed that after receipt of the first injury on the head, deceased ran to save himself and covered distance of two squares, therefore, the reason of the learned Judge in. Chambers that deceased could not have moved after the receipt of first injury on his head has also no merit and substance hence cannot be said to be unbelievable.
17. The testimony of all the injured P.Ws. Is impeccable which could not be even shattered in the cross-examination and has been fully corroborated by medical, recovery of hatchet and motive evidence. Learned Sessions Judge on the basis of preponderant ocular testimony of injured witnesses coupled with medical evidence and recovery of blood-stained hatchet from the possession of respondent/accused Khurshid Ahmad including the injuries sustained on his person and the presence of P.Ws. Having been proved and confirmed even by D.W. Mst Maqboolan and also by respondent Khurshid Ahmad in his 342, Cr.P.C. Statement held the respondents/accused guilty of the charged offence to which finding we have not found any legal or factual infirmity or glaring impropriety in the appraisement of evidence, therefore, the acquittal of respondent/accused Muhammad Ali and Khurshid Ahmad by reversing/setting aside of the judgment of conviction in presence of overwhelming ocular and other corroborated pieces of evidence by the learned Judge in Chambers has not been evaluated in accordance with the norms of dispensation of criminal justice which has resulted in grave miscarriage of justice hence same is set aside and judgment of conviction of learned trial Court is restored. Reference may be made to (i) Allah Bakhsh and another v. Ghulam Rasool and others (1999 SCM R 223), (ii) State v.
Qaiser (1995 M LD 535), (iii) State v. Aslam Khan (1995 M LD 557) and (iv) Fateh Muhammad v.
Muhammad Khan and others (1998 M LD 1107).
18. So far the contention of learned counsel for the respondents that the petition was time-barred by fifteen days, it may be observed that the judgment was announced on 10-10-1993, application for copy was made on 20-10-1993 which was supplied on the same date and the appeal was filed on 25-11-1993. It is settled that provisions of limitation must be strictly applied and the vague and flimsy ground would not be considered as sufficient or adequate basis for condonation of delay.
However, circumstances of each case have to be independently kept in view which would be relevant for deciding as to whether in the peculiar circumstances of each case, condonation of delay with regard to acquittal appeal could be allowed or not. In the instant case we find that material evidence has been discredited contrary to the principles laid down by this Court which has resulted in grave miscarriage of justice in acquitting the respondents/accused who had committed intentional brutal murder of deceased and had caused as many as thirty-five injuries to the injured P,Ws. We have gone through the record, there, is no counter-affidavit rebutting the submission made for condonation of delay in the application and affidavit filed by the complainant/appellant. We in view of peculiar circumstances of this case feel that the delay in filing appeal deserves to be condoned, which is accordingly condoned. Reference may be made to the decision of the Court The State v. Nazir Ahmad and others (1999 SCM R 610).
21. Accordingly we set aside the order of acquittal of the learned Judge in Chambers and restore the judgment of conviction and sentence passed by learned Sessions Judge, Bahawalpur. It has been stated by the learned counsel for the respondents that the respondents were arrested under order of this Court and were sent to jail, they would serve out the remaining sentence but in case they were not in jail, the trial Court would issue non-bailable warrants for their arrest and they would be kept in jail to serve out rest of the sentence. The appeal is allowed.