BAKHAT BAIDAR Versus STATE

1. NASIM HASAN SHAH, J.‑ This is a direct appeal under Article 185(2) (a) of the Constitution against the judgment and order of the Peshawar High Court dated 6‑5‑1978 in Criminal Appeal No. 133 of 1976.

2. The relevant facts briefly are that on 29‑12‑1971 in the city of Bannu at qaza peshi time two deceased persons, Badi‑uz‑Zaman and Zar Khan came out of the bazzar. They were seated in the tonga of Zaman Khan son of Faizullah, Badi‑uz‑Zaman was on the front seat while Zar Khan was on the back seat. The tonga stopped outside Haved Gate and P. W. 8 Arab Khan who is related to the deceased person met them there and shook hands with them, P. W. 9 Afsar Ali, another relation of the deceased Badi‑uz‑Zaman Khan, who was oa his cycle, stood at the rear of the tonga. As the informant was leaving, five accused persons i.e. the appellant, Bakbat Baidar having a '303 rifle, Aurangzeb‑son of Zamindar also armed with a 303 rifle, three uncles of the appellant viz. Arjumand, Zangobar and Umarzad, all armed with ' 12 bore guns, came out of the shop of one Hamidullab son of Mir Ali Khan which is located outside the Haved Gate. All the five accused fired at Badi uz‑Zaman and Zar Khan who were hit and fell in the tonga. One Noor Ali Khan, who was making his purchases nearby was also injured by a shot. Zar Khan was injured and put on charpoy and sent to the Police Station while informant Arab Khan took the body of Badi‑uz‑Zaman in the same tonga to the police station where he lodged the report. There was a blood fued between the parties which was the motive for this incident. After the murder all the accused persons absconded. The only person arrested was the appellant who surrendered voluntarily on 22‑4‑1975 and was tried by the Addi tional Sessions Judge, Bannu. The learned Additional Sessions Judge, by his order dated 17‑1‑1976, acquitted the appellant Bakhat Baidar of all the charges (on two counts) under section 302/149, P. P. C. as also under section 307/149 and under section 148, P. P. C. The State filed an appeal against the order of acquittal and the High Court by its judgment dated 9‑5‑1978 set aside the acquittal, convicted and sentenced the appellant to imprisonment for life on two counts under section 302/149, P. P. C. and three years' R. I. under section 148, P. P. C. Hence this appeal by right before this Court.

3. The learned Additional Sessions Judge mainly based the order of acquittal on the grounds that there was a discrepancy between the medical evidence and the eye‑witness account furnished by Arab Khan P. W. 8 and Afsar Ali P. W. 9 ; the nature of the evidence of the two eye‑witnesses was unsatis factory and the fact that they were interested witnesses. He, therefore, was of the opinion that their evidence required corroboration. This was sought to be furnished by the prosecution by the circumstance of the long abscondence of the appellant. However, the learned Additional Sessions Judge accepted the explanation given by the appellant for his absence, namely, that when the occurrence took place his father Azad Khan was in Jail, having been sentenced in a criminal case, and that he was studying in Government Middle School, Ismail Khel. On the day of occurrence lie was in his school and he learnt about the occurrence and the fact that he bad been charged therein. He sent a message asking for advice of his father in the matter who advised him from Jail that he should go to Miranshah and get himself admitted in Government High School, Miranshah with a view to pursue his studies as otherwise he would be at the mercy of his enemies. Consequently, he went up to Miranshah and got himself admitted in the Government High School, Miranshah and continued to study there. Subsequently, on the advice of his father he came back and voluntarily surrendered to the Police and that the above facts showed that he had not absconded. The above explanation was accepted by the learned Additional Sessions Judge, who observed that in his opinion the accused had not absconded because he was guilty of the offence but might have avoided arrest because of fear, keeping in view his age (he was only 16 years of age at the time of the occurrence).

4. The learned Judges in the High Court while dealing with the appeal against acquittal were of the view that on proper analysis there was a dis crepancy between the medical evidence and the eye‑witness account and that the evidence of the eye‑witnesses was satisfactory and though they might be interested witnesses, their testimony was corroborated by the circumstance of the abacondance and that the explanation given by the appellant for avoiding arrest was not satisfactory.

5. We would observe that the three absconders have yet to be arrested and tried and, therefore, we are not inclined to comment on the question whether the evidence of the eye‑witnesses was, indeed, satisfactory or not but would merely observe that the eye‑witnesses were interested witnesses and that their evidence, therefore, required, corroboration before it could be relied upon. The High Court found such corroboration in the circumstance of the abscond ance of the appellant of merely 3/4 years but the learned Additional Sessions Judge had accepted the explanation and was of the opinion that in the circum stances mentioned by the appellant he could not be held to have absconded.

6. The only question therefore is whether the learned Judge in the High Court were justified while hearing an appeal against acquittal to substituting their opinion on this question for that of the learned Additional Sessions Judge? Although in the course of an appeal against acquittal under section 417, Cr. P. C. there is no limitation on the power of the superior Courts to interfere with every findings recorded by the trial Court but the superior Courts have themselves laid down certain principles relating to their jurisdic tion in the case of acquittal appeals. (See Sheo Swarup and others v. King Emperor (AIR 1934 P C 227) which was referred to with approval in Billu alias Inayatullah v., The State (P L D 1979 S C 934). It has been laid down that although the High Court in such appeals has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed but it has also been observed that in exercising the power conferred by the Code in such cases and before reach ing its conclusions upon facts, the High Court should give proper weight an consideration to the views of the learned trial Judge in inter alia, disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses and we might add of hearing the accused. The learned Additional Sessions Judge had recorded a finding that in the circumstances narrated by the appellant he could not be considered as having absconded and we feel that such a finding of fact should not have been disturbed by the High Court in the course of an appeal against acquittal merely because another view could be taken of the same facts by the learned Judges. If the said finding was not disturbed the only evidence left against the appellant would be that of the eye‑witnesses, who being, as seen above, to be interested witnesses could not be relied upon without corroboration. If the appellant's absence from the spot for the fairly long period after the incident is not treated as abscondence, there is no corroboration available to the testimony of the eye‑witnesses. In these circumstances, it was not safe to convict the appellant on the uncorro borated testimony of the aforesaid two witnesses.

7. We would, therefore, allow this appeal, set aside the order and judgment of the High Court and restore that of the trial Court and order that the appellant be set at liberty forthwith, if not required in any other case.

8. Appeal accepted.