FAZLU R REHMA Versus ABDUL GHANI

1. MUHAMMAD AFZAL CHEEMA, J .-In his report lodged at 10 p. m. at Police Station, Kalu Khan, District Mardan on 30-6-1971, Fazalur Rehman appellant herein charged Abdul Ghani respondent No. 1 and his brother Sultan Ghani for the murder of his uncle Hazrat Shah allegedly committed by them half an hour earlier in the street of village Yar Hussain, six miles away from the Police Station. Both the accused were tried for an offence under section 302/34, P. P. C. by the Sessions Judge, Mardan, who vide his judgment dated 12-6-1973, acquitted Sultan Ghani and convicted Abdul Ghani respondent herein with an award of life imprisonment. In appeal, the High Court acquitted the latter also vide judgment dated 2-10.1974 from which leave to appeal was granted by this Court's order dated 8-6-1976 to examine the contention (i) that the High Court was in error in attaching undue weight to the so-called improvement made by the eye-witnesses on their police statements when they deposed at the trial that having seen the assailants, the deceased immediately turned round and was hit in the back; (ii) that having once chosen to reject the testimony of Taj Muhammad, Lambardar (D. W.) the learned Judges were not justified in giving the finding that the bulb taken into possession by the police from a place close to the dead body was a fused 25 watt: bulb instead of a 100 watts live bulb; and (iii) that on the whole the reasons given by the High Court for the acquittal of respondent No. 1 were inadequate.

2. According to the version disclosed by Fazalur Rehaman appellant in his police report lodged within half an hour of the occurrence, on the fateful night he and his deceased uncle Hazrat Shah were returning to their houses after having offered Isha prayers in the mosque. Hit; uncle was gains slightly ahead of him. As they reached near the vegetable shop of Gul Rshman, they saw Abdul Ghani respondent No. 1 and his brother the acquit. led accused Sultan Ghani standing in front of them armed with shot-guns. As they came closer to them, Abdul Ghani effectively fired at the deceased who fell to the ground. Fazalur Rehman also fell over his uncle. Having done the job, the assailants ran towards their houses. Besides him, the occurrence was seen by Faqir Mohammed (P. W. 7) and Muhammad Said (P. W. 10) both nephews of Fazalur Rehman and grandsons of the deceased. The motive mentioned in the initial report was that the parties were involved in old standing civil litigation in respect of a window installed by the accused in their house which violated the privacy of the deceased. Having lasted for 10/12 years, the litigation had been finally decided in his favour on the previous day when the accused were directed to close the window and on that account they bore a grudge against the deceased.

3. Sultan Ghani appeared before the Police on 6-7-1971 while Abdul Ghani respondent surrendered himself on 10-7-1971. At the trial, the prosecution case mainly rested on the testimony of the three eye-witness, namely, Fazalur Rehman (P. W. 6) the first informant and his nephews Faqir Hussain (P. W. 7) and Muhammad Said (P. W. 10), supported by the existence of a strong motive, the medical evidence which revealed a single shot fired from a very close range resulting in both a wound of entry with blackening as well as of exit. Surprisingly enough in their statements before the Committing Magistrate while denying the allegations in the first instance each one of the accused in answer to the third question, namely, "what is your statement and why are you charged"? replied, "I plead guilty and pray for the mercy of the Court". Again at the trial, in answer to the first question, both admitted the correctnesses of their statements made before the Committing Magistrate on 18-9-1972. They also admitted the existence of civil litigation with the deceased but denied the allegations of murder. Abdul Ghani respondent stated that he was a T. B, patient and under medical advice had gone to village Amazi in Buner which is a cooler place. Having recovered a little he returned to his village, learnt about the charge of murder against him and surrendered himself to the police. He examined in his defence Taj Muhammad, Lambardar, one of the witnesses of recovery of a 100 watts bulb P. 1 from the Confectionery of Mir Ahmad Shah close to the scene of murder, which was taken into possession by Rangin Shay, Investigating Officer (P. W. 8) vide memo. Exh. P. J dated 30-6-1971. This witness who appeared as D. W. 1 was Lambardar of village Yar Hussain and on his own showing an educated person, fully supported the recovery before the Committing Magistrate as a prosecution witness, was given up at the trial as having been won over and chose to appear in defence. He tried to give an impression that it was a case of unseen murder, that Fazalur Rehman had arrived at the spot subsequently and had no knowledge of the culprits. He further stated that a bulgy of 25 watts was fixed about 12 karams away from the place where the dead body was lying, that it was not lit at that time and that on the direction of the Investigating Officer he removed it and bad handed it over to him. Ha further stated that at the instance of the Sub-Inspector he signed a blank paper purporting to be a recovery memo. acid that four days later Akbar Shah, S. H. O. brought another 25 watts bulb and told him that it had been recovered from the spot and in this regard obtained his signatures on another blank paper. The somersault of this obliging turncoat was not of much avail to the defence.

4. According to the trial Judge, the promptitude of the initial report revealing a natural and convincing version supported by the ocular testimony of three eye-witnesses, the medical evidence, the existence of a strong motive, the abscondence of Abdul Ghani respondent coupled with the patent absurdity of the defence evidence, all taken together were good enough to bring home the guilt to him. Since however, no specific role in the actual killing was attributed to Sultan Ghani the community of intention was not found to be established and he was acquitted on being given the benefit of doubt.

5. In the High Court, what appears to have weighed with the learned Judges in finding Abdul Ghani respondent also entitled to benefit of doubt was the existence of blackening on the wound of entry of the deceased showing firing from a point blank range which did not fit in with the ocular account furnished by the witnesses according to whom the shot was fired by the respondent from a distance of three paces. Besides being interested, the witnesses were found to have "materially contradicted" their police statements at the trial. It was further observed "that from the evidence sad circumstances of the case, it is also established that it was quite dark at the spot when the deceased was fired at by the assailants and that he was alone at the time of occurrence." Again the suggestion relating to the substitution of a 100 watts bulb for a 25 watts bulb at the shop of Mir Ahmad Shah was held to be not without force. For all these reasons, the case against Abdul Ghani respondent was also held to be doubtful and he too was acquitted.

6. After taking us through the relevant record, learned counsel for the appellant contended before us that the High Court had erred in reversing the finding of the trial Judge, and that the conclusions arrived at by it were not warranted by evidence and in fact were based on misreading thereof. It was submitted that the learned Judges were clearly in error in spelling out the so called contradiction between the police statements of the eye-witnesses and their depositions at the trial about the deceased having immediately turned round on seeing the two assailants suddenly emerging in front of him. It was submitted that even though this may not have been stated by the P. Ws. in so many words, this would be the only instinctive reaction of anybody placed in a situation like this. No wonder, therefore, that on finding himself confronted by two armed enemies, the deceased at once turned round to save himself and received the fatal shot in the back. It was next submitted that having once rejected the defence evidence of Taj Mohammad, Lambardar, the learned Judges could not at the same time rely on his testimony in so far as the allegation of substitution of the bulb was concerned.

7. On the other band, learned counsel for the respondent contended before us that normally this Court would ? not embark on reappraisal of evidence even if a different view were possible. It was submitted that in all probability, the street was not lit at the time of the occurrence, and the eye-witnesses were not present for if Fazalur Rehman as he would have us believe had really fallen over his uncle when he fell injured, his clothes must have been stained with blood of which there is no evidence.

8. As regards the first contention raised on behalf of the respondent the normally this Court would not embark on re-appeasement of evidence an must give due weight and consideration to the findings of the Courts below, this of course is the correct legal position. However, the proposition is not devoid of authority that where a finding is arrived at by the High Court in disregard of material evidence or is otherwise, bas-d on misreading o evidence resulting in miscarriage of justice, this Court would not hesitate to interfere in order to protect the interest of justice.

9. The question of the jurisdiction of this Court as compared to that of the Privy Council and the jurisdiction and scope of its interference in criminal matters in which appeal does not lie as of right, was examined in detail by a Full Bench of this Court in Noora's case P L D 1973 S C 469. Having reviewed the judgment in A. M. Dillet's case (1887) 12 A C 459 which is the basic authority and two subsequent decisions of the Federal Court in Sarfraz Ali v. The Crown PLD 1951 FC78 and Adalat v. Crown PLD 1956 F C 171 it was finally held as follows ;

10. "The Supreme Court has every right to examine the evidence in a criminal appeal, if it is necessary in the interest of justice. In what circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any bard and-fast rule. Each case will have to be judged upon its own facts and circumstances; but, at the same time, it must be emphasized that although under the constitutional provisions the powers of this Court are it! no way refereed, yet, from the very nature of thins, there must be some difference in its approach towards the cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained."

11. A little further, it was observes;-

12. "As an ultimate Court, the Supreme Court, must give due weight and consideration to the opinions of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below: but the Supreme Court should first satisfy itself that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to ire own independent finding upon a re-examination of the evidence untrammelled by the opinions of the Courts below."

13. In a more recent judgment of this Court in Farid v. Aslam and 4 other PLD 1977 S C 4 which is more aptly applicable ? to the circumstances of this case inasmuch as the precise scope of interference with the orders of acquittal made by the High Court was examined. It was observed as follows :-

14. The principle consistently enunciated by the Court is that as an ultimate Court, the Supreme Court must give due weight and consideration to the findings of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. the mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from due procedure in the reception of evidence or otherwise, which is calculated to interfere with the due or safe dispensation of justice, then interference by this Court would be justified and necessary."

15. In the instant case, we are satisfied that while on the one hand, the learned Judges in the High Court were trying to be unnecessarily meticulous by characterising as a contradiction what on a reasonable view would not even amount to an improvement they had on the other clearly ignored the evidence aliunde relating to the recovery of a 100 watts bulb from the shop of Mir Ahead Shah close to the scene of murder, and available in the statements of Umar Khan (P. W. 4), Rangin Khan, Sub-Inspector (P. W. 8) as also the statement of Taj Muhammad, Lambardar (D. W. 1) made before the Committing Magistrate from which he retracted at the trial. Surprisingly enough while on the one hand this witness was found to be unreliable and the rejection of his evidence by the Sessions Judge was fully endorsed by tile learned Judges, a portion of his statement relating to the alleged substitution of a 100 watts bulb by one of 25 watts was accepted on the other, on the flimsy basis of a denied suggestion made in this regard to Fazalur Rehman first informant during cross-examination.

16. No doubt Fazalur Rehman did not clearly state in the initial report that being suddenly confronted by the assailants, his deceased uncle immediately turned round and was hit in the back. But it hardly needs any imagination to visualize this position. In fact even if it were not stated so in to many words as rightly urged before us, this would be the only instinctive reaction of any person so, circumstanced. An initial report need not necessarily an in fact would seldom contain such minute retails. The clarification of this position by the examination of Fazalur Rehman is quite significant and may be advantageously reproduced. ? It reads as follows :--

17. "It is wrong that the bulb fixed outside the shop of Mir Ahead Shah was of 25 watts and that it was dead at that time. I stayed with the dead body for about b/7 minutes, The bulb was about 15 paces from in spot. It is wrong that too light of that bulb could not reach the spot. Another bulb from the shop of Qamar Gul was also taken out by the Investigating Officer on that night. It is wrong to suggest that no bulb from the shop of Qamar Gul was taken out on that night."

18. It was rightly contended by the learned counsel for the appellant that while giving a finding in favour of darkness, the learned Judges had not discussed or even referred to the evidence of Umar Khan (P. W. 4), the other recovery witness of a 100 watts bulb from the shop of Mir Ahmad Shad which was taken into possession vide memo. Exh. P. J., signed by him. This witness had categorically stated in cross-examination that "there was sufficient light where the dead body was lying", that "there were several bulbs in the bazar, and that the bazar was electrically lit from one end to the other. In view of the above position we are convinced and say so with respect that the finding of the learned Judges about darkness was based on misreading of evidence. They stomach of the deceased was found to be full of food which clearly fell in, line with the time of occurrence, namely, Isha prayers time. The venue stood established by the recovery of blood-stained earth from the spot. the bazar was lit. The report was lodged within halt an hour of the occurrence and c contained the names of the eye-witnesses who stood up well to a thorough and lengthy cross-examination. Their testimony received corroboration from the abscondence of the respondent. The existence of a strong motive stood established by documentary evidence and only a day earlier the twelve years old litigation between the parties was concluded. The case was decided in favour of the deceased on whose applications not only the decree was executed but warrants for the arrest of the respondent and his brother were also issued the same day as evidenced by certified copies of the orders o~ the Civil Judge, Mardan, dated 30-6-1971 placed on the record as Exhs. P. M.I and P. N. As regards the point that on his own showing Fazalur Rehman fell over his deceased uncle when the latter fell injured, this fact was mentioned by him only in the F. I. R. He did not state so at the trial nor was he questioned about this during cross-examination. Even from the F. I. R. which does not constitute substantive evidence, it is not clear as to whether he deliberately tried to give a cover to his uncle to protect him from another shot or just stumbled. In the conspicuous absence of a single question on this point during cross-examination no inference adverse to the prosecution could be raised.

19. In conclusion, we are fully satisfied that the findings of the learned Judges in the High Court disposing to the judgment of acquittal a-a untenable and cannot stand. Accordingly, we allow this appeal and restore the order of conviction and sentence recorded by the learned Sessions Judge. .

20. DORAB PATEL, J . The respondent had absconded for a period of only ten days, therefore, for the reasons given by this Court in Mac-is and other v. The State PLD1976SC695 this abscondence is of no corroboration value, with this qualification I agree with the judgment to he pronounced by my learned brother, Cheema, J.

21. S. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.

22. ???????????