FEROZE KHAN vs FATEH KHAN And 2 Other

1. MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against a judgment of acquittal by the High Court in a murder case. The petition for leave to appeal was against the acquittal of Fateh Khan, Anwar Khan, Sher Khan; and Lal Khan, Slier Zaman and Karam Elahi.

2. The facts and point noted for the grant of leave to appeal are as under:---- "All the aforementioned accused were tried for the murder of Arab Gul by inflicting on him Soti and knife blows.

3. "The trial Court accepted the ocular testimony of Feroze Khan and Muhammad Iqbal while convicting Fateh Khan, Anwar Khan and Sher Khan, but the High Court rejected their testimony and acquitted them.

4. "From the examination of the evidence and the judgment, it appears that the High Court has, on its own assessm ent of the probabilities, discounted the presence of Feroze Khan and Muhammad Iqbal without going into any depth of their evidence for assessing the quality of their testimony. We are, therefore, of the view that the entire evidence requires re-appraisal so as to avoid any miscarriage of justice.

5. "We would, accordingly, grant leave to appeal as against Fateh Khan, Anwar Khan and Sher Khan, but would dismiss it as against Sher Zaman, Karam Ellahi and Lal Khan in regard to whom, in the absence of any State appeal, we do not consider it worthwhile to examine their acquittal."

6. Learned counsel for the appellant has reiterated the argument that Feroze Khan and Muhammad 1qbal could have been relied upon notwithstanding the fact that the acquittal of Sher Zaman, Karam Ellahi and Lal Khan has been affirmed even by this Court in refusing to grant leave to appeal. He argued that if the acquittal by the trial Court of three accused in this case is with the finding that the same eye-witnesses having perjured themselves falsely implicated the acquitted accused, then it may not be possible to rely upon the same witnesses for seeking conviction of the remaining accused against whom leave to appeal has been granted. But, as further, contended by him, the first mentioned set of accused was acquitted on account of extension of benefit of doubt, therefore, the remaining accused cannot be convicted on the basis of the testimony of the same witnesses. The proposition seems to be correct. See (i) Sher Hassan v. The State PLD 1959 SC 480 and (ii) Sadaruzzaman v. The State 1990 SCM R 1277.

7. The acquittal on the extension of benefit of doubt does not necessarily mean that the eye- witnesses had either not seen the occurrence or that they had deliberately falsely implicated the acquitted accused. It means that there are both the possibilities; namely, that they might have told the truth or they might have not told the truth. On account of this doubt while the accused becomes entitled to acquittal under the higher jurisprudential principles relatable to the theory of extension of benefit of doubt, the witnesses cannot be condemned to have told lies. In such like cases, however, care is taken that for convicting the remaining accused, the witnesses are put to hardest test of scrutiny and depending upon the circumstances of each case attempt is made to see if their testimony is corroborated by independent circumstances.

8. In this case we, with the help of the learned counsel for the appellant, have ourselves gone through the testimony of the eye-witnesses as well as the view of the High Court regarding their reliability.

9. After going through the same we have come to the conclusion that at best it could be a case of mere difference of opinion regarding appreciation of evidence but this alone is not a good ground for setting aside an acquittal as held by this Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11.

10. The learned counsel then contended that the misappreciation of evidence, when it leads to a difference of opinion in the Court of appeal and has also resulted in miscarriage of justice, can be a basis for upsetting the order of acquittal. This proposition also in a way seems only partially correct. Miscarriage of justice is a relative consideration. Justice is the birth right of every citizen.

11. The accused has also similar right to justice as the complainant side. Therefore, while balancing the facts in such like cases regarding miscarriage of justice it is very difficult to define the limits where the right of one ends and that of the other begins. The Courts often in such like difficult situations, have applied test of "impossibility" by asking question; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place. We have applied this lest to the appreciation of evidence in the present case and the prosecution has not succeeded in this test. The view held by the High Court about the witnesses was not impossible.

12. Next the learned counsel contended that the High Court while refusing to rely on the testimony of the eye-witnesses has also mentioned that it was not possible for it to believe them without corroboration. And because, as further contended by him, there is very strong corroboration in the recovery of incriminating articles including the revolver, of the deceased from one of the accused, this corroboration would be enough to rill the gap left on the prosecution side and the weakness (if found) in; the testimony of the eye--witnesses. It is correct that the nature of the recovery in this case if it would have been relied upon, would have furnished very strong corroboration. But the evidence regarding this recovery was put to similar tests and criticism as the testimony of the eye- witnesses. And the same criticism in this Court, while hearing an appeal against acquittal, would apply to the appreciation of evidence. We have not found it an iota better than the eye-witnesses themselves.

13. In the light of the foregoing discussion no merit having been found in this appeal the same is dismissed. The respondents/accused shall be released forthwith if not required in any other matter.