STATE Versus PUNNU KHAN
Punnu Khan. Dastar and Abdul Karim, respondents to this appeal, were tried alongwith Muhammad Azam accused for an offence under sections 302/ 307, 114/34, A. P. C. read with section 5 of the Islamic Penal Laws Enforce ment Act,'1974, by the District Court of Criminal Jurisdiction, Kotli. Vide its judgment, passed on 30‑4‑1978, the District Criminal Court convicted and sentenced Muhammad Azam to death while the respondents, namely, Punnu Khan, Dastar and Abdul Karim, were acquitted.
2. The State went up in appeal to challenge the acquittal order of the respondents while Muhammad Azam preferred an appeal against his convic tion and sentence before the High Court. Both the appeals were heard together and disposed of, by a single order; by a Division Bench of the High Court on 13‑5‑1979. The appeal of Muhammad Azam was accepted and the sentence recorded against him by the District Criminal Court was sot aside and the case was remanded to the District Criminal Court, Kotli, to record flesh order after purgation of the witnesses because there was no positive proof on the file that the Qazi had conducted the credibility test of the witnesses. This very order, however, dismissed the appeal filed by the State to impeach the acquittal order of the respondents by the District Criminal Court. This appeal, by leave, seeks to impeach the said judgment of the High Court so far as acquittal of Punnu, Dastar and Abdul Karim is concerned. The remand order made in respect of Muhammad Azam has not been challenged.
3. Raja Muhammad Akram Khan, the learned counsel for the State, has assailed the judgment of the High Court, inter alia, on the following grounds
(i) that the respondents' case stands on the same footing as that of Muhammad Azam and the High Court and the District Criminal Court made artificial distinction between the cases of both the sets and failed to appreciate the evidence on correct legal principles. In his view the case of murder against Punnu and other respondents stands established out of the evidence and it is illegal to convict Muhammad Azam and acquit respondents on the same evidence ;
(ii) that when both the cases were heard together and disposed of by a single judgment by the High Court, both the cases should have been remanded on the point of 'Tazkiyyatush‑Shahood.' If there was no 'Tazkia' against Muhammad Azam, there was no 'Tazkia' in the case of the acquitted respondents too; and
(iii) that the approach to the question of 'Tazkia' made by one of the members of the Court (Mr. Justice Muhammad Yusuf Saraf, Chief Justice of the time), when he says that 'Tazkia' should precede the statements of the prosecution witnesses, in the body of his order is incorrect. In the estimation of the learned Advocate‑General certain observations, made by the learned Chief Justice in the body of his order to the effect that the correct stage of 'Tazkia' is the time of arraignment of the accused before the trial Court, offend the principles of Islamic jurisprudence and need to be vacated to keep the law straight.
4. I propose to dispose of point No. (i) first. On this aspect of the case it is to be seen as to whether there is any substance in the submission made by the learned Advocate‑General that there is sufficient evidence to connect the respondents with the offence charged. To have a clear approach to the point I may state here the brief facts of the case. The facts of the case as narrated in the judgment of the High Court on the basis of F. I. R. are that "Gul Bahar, complainant, at Police Station, Kotli, on 19‑11‑1974, made a report that on the day of occurrence, 9th of November, 1974, at about noon he was sitting at the shop of Sufi Muhammad Khan, P. W. and the other P. Ws. namely Zarait and Maqbool were also sitting at the shop of Sufi Muhammad Khan alongwith the complainant. While they were sitting at the shop, Gulbahar deceased, the brother of the complainant came back from the house of one Mateen Alam and was on his way to his house and when reached near the house of Salah Muhammad refugee, Muhammad Azam appellant and Abdul Karim accused‑respondent stopped him from proceeding to his house and shouted 'Lalkara' at him that they would not permit him to live any more. On this threat, Gulbahar deceased raised hue and cry that he might be rescued. On this hue and cry, according to the complainant, he alongwith Maqbool, Zarait and Muhammad Khan, P. Ws. ran towards the place of occurrence. They saw the deceased being followed by Muhammad Azam and Abdul Karim accused‑respondents. Abdul Karim was armed with a stick while Muhammad Azam had a pistol in his hand. Muhammad Azam ran ahead of the deceased and fired at him. The deceased was hit and fell on the ground. It is further alleged in the F. I. R. that on this, the complainant asked Muhammad Azam and Abdul Karim not to kill the deceased. At this stage, Punnu Khan shouted 'Lalkara' that we should also be put to an end and he also fired with '12 bore gun. Dastar alias Bhtti son of Punnu Khan was also standing alongwith him in the compound of the house of one Mangoo. After this, Muhammad Azam and Abdul Karim proceeded towards where Punnu Khan and Dastar were standing. The motive for this incident, as alleged in the F. I. R. is that Sarwar Khan, the uncle of the deceased had abducted the daughter of Punnu Khan and apart from this, the deceased and the accused persons had strained relations for other reasons too. The Police registered the case under section 302/34, P. C. However, the accused were tried under section 5 of the Islamic Penal Law Act, 1974 read with section 34, P. C.
5. The close reading of the F. I. R. would show that this Report, except Muhammad Azam, does not attribute any overt act to connect the respondents with the commission of the offence of murder. Likewise the learned District Criminal Court and the learned High Court, after considering the pros and cons of the prosecution evidence found that no case against the respondents stand established. Here I would like to quote learned Judge of the High Court on the point. He says :‑
After considering the evidence against the acquitted accused, I am the opinion that even without purgation, the evidence against the accused‑persons Punnu Khan, Dastar and Abdul Karim is not sufficient enough to justify the reversal of the verdict of acquitted against them .The learned Advocate‑General argued that Punnu Khan respondent had also fired during the course of incident and gun was also recovered at his instance. It was further argued that he shouted Lalkara and thus it was obvious that he had common intention with Muhammad Azam accused‑appellant in the murder of the deceased, Gulbahar. Nobody has been injured by the alleged fire attributed to Punnu Khan respondent. As Arms Expert has not been produced in the Court, the report of the Arms Expert cannot be read in evidence. Therefore, the prosecution has failed to prove beyond reasonable doubt that Punnu Khan accused has used '12 bore gun when the incident was in progress. So far as the allegation of shouting 'Lalkara' is concerned, there is improvement in the prosecution case. In F. I. R. it is alleged that Punnu Khan shouted 'Lalkara' indicating that the P. Ws. should be killed while later on the P. Ws. state that Punnu Khan shouted Lalkara twice, once inciting Muhammad Azam to kill the deceased and the other to kill the prosecution witnesses. In F. I. R. no Lalkara is attributed to Dastar accused but at trial the prosecution witnesses also attributed 'Lalkara' to this witness too. According to the statements of P. Ws. Dastar accused was standing at some distance in the compound of the house of Mangoo armed with a stick. It is not alleged that he used his stick during the course of incident. So far as Abdul Karim is concerned, he has also not been attributed the part that he used his stick during the course of occurrence. So far as the statements of P. Ws. that he also chased the deceased are concerned these have not been considered sufficient by the trial Court to bring home charge against the accused and I see no reason to disagree with the finding of the trial Court and reverse the acquittal order, passed with regard to this accused. No 'Lalkara' has been attributed to this accused in F. I. R. but later on, the prosecution witnesses also attributed incitement to this accused. This clearly is an improvement and in the circumstances of the case, it has not been proved beyond a reasonable doubt that Abdul Karim has been guilty of conduct, as narrated by the P. Ws. It may be pointed out that in a case of acquittal, there is a further presumption in favour of the innocence of the accused. The order of acquittal cannot be reversed until and unless it is shown that the order is perverse or the conclusion drawn from the evidence is manifestly unjust and against the settled principles of law.
The above observations make the matter abundantly clear that the High Court, after applying its mind to the evidence, found it insufficient to bring home the guilt against the respondents.
6. The question, therefore, which would require to be determined is as to whether such a thoughtful finding can be reversed. It is correct that since 1956 the tendency of the Supreme Court of Pakistan, which I also own, has been to consider itself freed from the fetters of the practices of the Privy Council and the Court, in proper cases, has not been hesitated to re‑examine the evidence when justice of cause so demanded. So was held in Noora and another v. State (1). It has been observed in that case :‑
The Supreme Court has every right to examine the evidence in a criminal appeal, if it is necessary in the interests 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 emphasised that although under the constitu tional provisions the powers of this Court are in no way fettered, yet, from the very nature of things, 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.
But here it is to be seen as to whether the circumstances in the case warrant re‑examination of the evidence to advance the cause of justice. The law is well‑settled that due weight has always been given to the finding of the trial Court because full facts and circumstances of a case are laid open before a trial Court and, therefore, it is but natural that they come within the comprehension of the trial Court far more thoroughly and completely than i possible on the basis of a written record in a Court of appeal. The trial Court being close to the scene of occurrence and familiar with the ways and. practice of the people involved, enjoys a marked advantage in the formation of a complete and balanced picture of the incident which go into the making of the prosecution case as presented by witnesses of the locality.
7. It, therefore, follows that in setting aside an acquittal order in a case which rests wholly on direct evidence of witnesses (as this case is) much importance must be given to the opinion of the trial Court and the rule which runs through the criminal jurisprudence of our country that the benefit of every doubt must go to the accused person. It is now well‑settled that the appreciation of the evidence by the trial Court must always be given due weight as that Court has the advantage of not only hearing the evidence but (1) P L D 1973 S C 469 also observing the demeanour of the witnesses deposing before it. Its judgment of the credibility of a witness cannot, therefore, be lightly discarded particularly where such a judgment is supported by cogent and substantial reasons. However, if the appreciation is not based exclusively on the materials placed before the trial Court but on reasoning which is found to faulty or on speculation and surmises then the High Court would be justified informing its own view on the evidence. But the High Court should and will always give proper weight and consideration to the view of the trial Judge as to the credibility of the witnesses the presumption of innocence in favour of the accused and the right of the accused to the benefit of doubt. The appellate Court would be slow in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
8. In the case before me the trial Court had canvassed in its judgment a considerable number of features which went to create doubt regarding the testimony of the witnesses. This doubt was also shared and expressly declared by the High Court. I am not, therefore, prepared, unless perversity is established, to alter it. I must not, however, be thought to say that such a view of the facts or the conclusion thereunder formed by the trial Judge o the High Court is binding on me. A judgment which no reasonable man, upon facts, can conceive may be reversed but where a trial Judge has read the evidence fairly and has formulated grounds of doubt which are no perverse, illogical or unreasonable there is a clear risk of departure from the rule of the benefit of doubt in reversing such a finding. I am fortified in my view in Abdul Majid v. Superintendent and Remembrancer of Legal Affairs. Government of East Pakistan (P L D 1964 S C 422). It bas been observed in this case :‑
"In the case of reversal of an acquittal by the trial Judge, supported unanimously by the assessors, it is desirable that the Court should bear in mind that the full facts and circumstances of a case are laid open before a trial Court and thereby come within the comprehension of that Court including a jury or assessors, sitting as part of the Court far more thoroughly and completely than it is ever possible on the basis of a written record canvassed to advantage or disadvantage by learned counsel in a Court of appeal. The trial Court being close to the scene of occurrence and familiar with the ways and practices of the people involved, enjoys a marked advantage in the formation of a complete and balanced picture of the incident or incidents which go into the making of the prosecution case as presented by witnesses of the locality. It also enjoys another advantage of a priceless character for such appreciation namely that the witnesses do not merely appear before it to give that evidence, which through repetition before the Police authorities and the committing Court they may be thought to be well‑schooled in, but also that which they give under the probing stresses of cross‑examination.
In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as such importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused‑person. Of course a view of the facts or the conclusion therein formed by a trial Judge or even by a jury is not binding on a Court of appeal in Pakistan. A verdict by a jury may be reversed by the High Court on a reference. Equally, a conclusion by a Judge may be reversed even where it has led to an acquittal. But where the Judge has read the evidence fairly, and has formulated grounds of doubt which are not perverse or wholly illogical or unreason able, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings."
9. Attaching due weight to the matters (as is done in the present case) the High Court, on the facts, came to the conclusion that the trial Court verdict is correct. In these circumstances interference in the finding would not be justified. The Supreme Court would generally be very slow to inter fere with the appreciation of the evidence made by the trial Court or the finding of the High Court even if on the evidence, as to the guilt or innocence of the accused, the opinion of this Court differs. It is correct, as said earlier, that where the evidence is such that no Tribunal could legitimately infer from it that the accused is innocent, the Supreme Court will set aside the acquittal but not otherwise.
10. It, therefore, follows that if the reasons given by the trial Judge are of speculative and artificial nature, and are based on no evidence or are based on misinterpretation of evidence, or they are perverse resulting in the miscarriage of justice, the Supreme Court in such a case will re‑examine the evidence and draw its own conclusion from it but not otherwise.
11. In the instant case after looking into the evidence, the judgment recorded by the trial Court and the High Court. I find that substantial reasons have been advanced forgiving benefit of doubt to the respondents an there is no justification to interfere with such a finding. It is significant that nobody has been injured by the alleged fire attributed to Punnu Khan respondent. No arm expert has been examined to prove that the gun received from him was at all used. The report of the Arms Expert thus d not contain any legal evidence against him. So far as the allegation of hi shouting 'Lalkara' is concerned, as rightly pointed out by the High Court there is improvement in the prosecution case which casts serious doubt about the prosecution case so far the involvement of respondents is concerned. The first information report shows that Punnu Khan shouted 'Lalkara' to do away with the life of the witnesses while in evidence before the trial Court in departure to it, the witnesses say that Punnu Khan shouted 'Lalkara twice, once inciting Muhammad Azam to kill the deceased and then to kill the prosecution witnesses. Similarly, the first information report does no attribute 'Lalkara' to Dastar respondent, but at trial the 'Lalkara' is also attributed to him. The prosecution also does not give any overt act t Dastar during the course of incident. Similarly, Abdul Karim has not given any part in using the stick during the occurrence. All that is bein said against him is that he too chased the deceased. All these facts ha been, very rightly, considered sufficient by the trial Court to earn acquittal for the respondents.
12. The next submission of the learned Advocate‑General that the case of the respondents should also be remanded for retrial and decision for conducting credibility test of the witnesses is not tenable. When without Purgation of the witnesses the evidence against the respondents is insufficient to justify the reversal of the verdict of acquittal against them, I fail to appreciate as to how can there be a compulsion of law to get the credibility test of these witnesses regarding the involvement of the respondents. No laboured argument is required to hold so because the witnesses would either be 'Aadil' or not 'Aadil.' But whatever the character of the witnesses may b it would hardly make any difference so far as the case of the respondents is Concerned because, as said elsewhere, when the witnesses, even if believed to be `Aadil', do not establish any criminal involvement against the respondents, there appears no wisdom to send them back to the District Criminal court for deciding their involving in the incident after conducting the purgation of the witnesses.
13. Now remains only the question of purgation. Mr. Justice M. Y. Saraf, the learned Chief Justice of the time, held the view that purgation of the witnesses should precede examination of the prosecution witnesses. Nevertheless the Division Bench of the High Court showed full respect to the dictum of the Supreme Court in The State v. Amir Zaman Hanifi others (P L D 1979 S C (Azad J & K) 78) and concluded that the credibility test is to be observed after recording the statements of the prosecution witnesses. The observations in the body of the judgment, made by Mr. Justice Saraf, run counter to the finding of the Supreme Court in the case referred to above and need keen consideration. This aspect of the case requires deep study which would require some time.
Besides as directed by the order dated 17‑5‑1983. Ch. Ali Muhammad Advocate has not so for submitted written arguments. He would be directed to submit the written arguments positively within a month. I have, wherefore, decided to decide this issue by a separate order. The disposal of this point by a separate order, I may point out, would not in any way, prejudice the cause by any of the parties.
In the result this appeal fails. The respondents are released of their bonds.
Appeal dismissed.