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Criminal Acquittal Appeal No. 94 of 1971, decided on 28th January 1974.

S. 417‑Appeal against acquittal‑High Court has ample power to review at large evidence upon which order of acquittal founded‑Not necessary that in order to justify interference (with order of acquittal) judgment of trial Court should be shown to be perverse‑Reasons advanced by trial Court for disbelieving witnesses, not satisfactory and High Court coming to conclusion that evidence established guilt of accused beyond reasonable doubt‑Order of acquittal set aside and accused convicted on capital charge and sentenced to life imprison ment‑Penal Code (XLV of 1860), S. 302.

It cannot be said that the High Court in appeal under section 417,. Cr. P. C. has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately, blun dered,' or has through incompetence, stupidity or perversity' reached such distorted conclusion as to produce a positive miscarriage of justice", or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Criminal Procedure Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the: power conferred by the Code and before reaching its conclusion upon facts, the High Court should and will .always give proper weight and consideration. to such matters as (1) the views of the trial Judge as to credibility of the. witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the ]act that he has been acquitted at his trial ; (3) the right of the deceased to the benefit of any doubt ; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

However it is not necessary that in order to justify interference the trial Court must have been shown to have acted obstinately or through incompet ence, stupidity or perversity or similar extreme mode of assessment.

Technically, therefore. the power of the High Court to examine then evidence on which a finding of fact is based is unlimited though in adopting, that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can therefore, be laid down defining the classes of cases in which the High Court should or should not order of retrial. The matter is essentially in the discretion of the High Court and the" only limitation on the exercise of that, discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful.

Cases which lay down that the discretion is not to be exercised unless the judgment of acquittal be perverse or based on a view of evidence which no reasonable man will take merely indicate the classes of cases in which an interference is necessary and do not lay down that in no other case can the High Court interfere. It is a wise rule to follow that where the Legislature itself does not define the limits of or the grounds for the exercise of a discre tion, the Courts should not too readily lay down rules to fetter that discretion, and it seems that the practice while interfering with orders of acquittal or recording strong finding as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated because if these be the only grounds on which an order of acquittal can be interfered with, revision Courts will in every case be engaged in determining the preliminary issue whether the error committed is gross or palpable and the view taken perverse or foolish and not the real question whether the order of acquittal is wrong,. and if allowed to stand, would occasion a failure of justice.

The position then in dealing with acquittal, particularly which rests wholly upon the direct evidence of witnesses the principle of the benefit of doubt must never be lost sight of. If, therefore, the grounds upon which the trial Judge has rejected the testimony of the witnesses are reasonable then even though the High Court may not share his opinion it ought not ordinarily to reverse his findings. That is not however to say that his opinion is binding upon the High Court. If the reasons which appeal to the trial Judge for rejecting. the testimony of the oral witnesses are, in the opinion of the High Court, not valid reasons then it becomes the duty of the High Court to re‑examine the evidence and, if itself satisfied that the evidence warranted a conviction beyond reasonable doubt, then the High Court would be failing in its duty if it refused to interfere merely because the appeal is one against an acquittal. So to do would be in effect to refuse to exercise a jurisdiction which the law vests in the High Court and to ignore the clear wishes of the Legislature as expressed in section 417 of the Code of Criminal Procedure.

Shea Swarup v. The King‑Emperor A I R 1934 P C 227 ; Ghulam Safdar v. The Crown P L D 1956 F C 126 ; The Stare v. Bashir Ahmed P L D 1963 Kar. 242 ; Anwar v. The Crown P L D 1955 F C 185 and Abdul Majid v. The Superintendent and Remembrancer of Legal Affairs P L D 1964 S C 422 ref.

S. Nasiruddin for the State. Azizullah K. Shaikh for Respondent.

Jamaluddin K. Shaikh for the Complainant.

Date of hearing : 14th January 1974.

. All the material prosecution witnesses,. except the eye‑witness Mohammad Moosa, and the respondent in this case lived at the material time in the village of Muhbat Ruk in Taluka Ghotki in the District of Sukkur but, while the prosecution witnesses are all Sheikhs by caste, and are inter‑related, the respondent is a Ruk by caste and it would seem that the entire village is populated by persons belonging to the Sheikh caste while the respondent alone is a member of a family who are Ruks. On the evening of the 21st September 1969 the marriage of the daughter of ‑prosecution witness Hussain Bux was to take place and accordingly, the sole witness who does not live in the village, namely, the witness Mohammad Moosa, had come to attend the marriage. On the next morning, it is the case of the prosecution that the first informant Luqman Shaikh went after must of the guests had departed, along with his brother‑in‑law Allah Wasayo who is the deceased in this case, in a bullock cart to his field for cutting grass. From there he returned at about noon and stopped the bullock cart opposite the house of one Qamardin in the street on which also is situate the house of Hussain Shaikh and the deceased. The bullock were then un‑yoked from the cart and Allah Wasayo went to leave them at the house and, when he returned, the appellant came up to the street from his own house armed with a gun. At that time, Hussain Bux and Mooso were in the street, as Mooso was about to depart for his own village and, having taken leave of the others, was having a last few words in the street outside the house of Hussain with the latter. Luqman, of course, was already present. The respondent, it is alleged, abused the deceased and then fired a single shot at him which hit him on the left temporal region on account of which he fell down and bled. The respondent then ran away while the witnesses went up to the deceased who was, however, in no condition to speak and died within a very few minutes of the attack. Moosd and Hussain were then left at the scene to ‑watch the dead body and Luqman left for the Ghotki Police Station which is miles away and there his first information report was recorded at 4‑00 p.m. the time at which the actual firing took place being, according to the witnesses, about 1‑30 p.m. The report was recorded by Mohammad Younus, the Assis tant Sub‑Inspector then posted at the Ghotki Police Station who returned with the first informant to the scene of offence and carried out most of the investi gation though the S. H. O. Hafis Hussain Shah later also took part in the in vestigation but died soon after had and could not be examined even in the committal Court. About this investigation all that needs to be mentioned is that the statements of the witnesses Hussain Bux and Mohammad Mooso were taken the usual mashirnamas prepared including one which recorded the fact of the securing of a licensed double‑barrel gun from the respondent, the licence standing in the name of his father, and a spent cartridge which was found in the gun itself. It is to be noted that no spent cartridge was found at the scene. The gun and the cartridge, it appears, were sent to the ballistic expert but that expert was not examined as a witness. No other recoveries were made and after the investigation was completed the respondent was sent up for trial and ultimately acquitted by the learned Sessions Judge, Sukkur. It is against this acquittal that the present appeal has been instituted.

2. The learned Judge did not consider the evidence of the eye‑witnesses sufficiently reliable to justify a conviction without corroboration and ad mittedly there was no corroboration in this case. He found also that one of the witnesses, namely Moosa was what he has described as a chance witness .and found some other reasons also, which I shall examine, which led him to the conclusion that the case was not established against the respondent.

3. Before us the learned counsel for the State argued that the evidence ought to be accepted while learned counsel for the respondent argued in the main that acquittals by a trial Court ought not to be interfered with by this Court unless the judgment was manifestly wrong or perverse and although, neither learned counsel cited any case in support of their contention, quite obviously what they had in mind was a number of cases in which the princi ples upon which interference by the High Court in such matters can be justified have been discussed. Since upon a study of those cases I have not been able to pursuade myself that a judgment must necessarily be shown to be perverse before it can be upset by this Court nor that the assessment of the evidence by the learned Judge was a correct one in this case, I think it necessary to refer to some of these cases though it is obviously both and almost impossible task as well as a futile one to mention every single case. The most well known case upon the question which has been repeatedly quoted in a large number of cases thereafter is one decided by the Privy Council and reported as Sheo Swarup v. The King‑Emperor (A I R 1934 P C 227) although of course there were several cases prior to the pronouncement of their Lordships of the Privy Council which must be regarded as having been overruled to the extent that they are inconsistent with this case. The following passage from the judgment of the Privy Council sufficiently states the principles upon which the Privy Council thought interference could be justified:

"It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has " obstinately, blundered' or has through in competence, stupidity or perversity' reached such distorted conclusion A as to produce a positive miscarriage of justice", or has in some other way so conducted or misconducted itself as to produce a glaring mis carriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judges as to credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weaken ed by the fact that he has been acquitted at his trial; (3) the right of the deceased to the benefit of any doubt; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

It will be seen that the Privy Council did not agree with the view that in order to justify interference the trial Court must have been shown to have acted obstinately or through incompetence, stupidity or perversity or similar extreme mode of assessment.

4. One of the earliest cases in which the highest Court in our own country has had occasion to examine the question is the one reported as Ghulam Safdar v. The Crown (P L D 1956 F C 126) and the then Chief Justice in delivering the judgment of the Court observed:

"The law allows a right to the Provincial Government to appeal against an acquittal, and on being moved on any such appeal it is the duty of the High Court to review the evidence and to come to its own conclu sions, bearing of course in mind the conclusions arrived at by the trial Judge, the reasons given for such conclusions and the advantage that he had in observing the demeanour of the witnesses and hearing their story viva voce. In convicting the appellants, the High Court has not contravened any rule or principle. There is therefore, no occa sion for us to interfere and we dismiss the appeal."

The case of Sheo Swarup is not mentioned but, quite apart from the fact that this case would be binding upon us even if it ran counter to the Privy Council case, that case was far to well known not to have been present to the minds of their Lordships and quite clearly what their Lordships said is. in no way contradictory to what the Privy Council had observed. Clearly their Lordships of the Federal Court are emphasising the duty of the High Court to come to its own conclusion but also emphasising that in doing so they must be mindful of the conclusions reached by the Trial Judge and the reasons he gave for them.

5. A case to which I think I might usefully make reference is the one decided by the Division Bench of the West Pakistan sitting at Karachi and reported as The State v. Bashir Ahmed (P L D 1963 Kar. 242) and the following quotation is I think, a fair summary of the highest at which the case of the respondent in appeals from acquittal can be put:

"The learned defence counsel quoted certain authorities of the effect that before an order of acquittal could be reversed it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong and that if two conclusions were equally possible an order of acquittal should not be reversed in Ahmed v. The Crown P L D 1951 F C 107, that unless the Court is fully satisfied that the order of the Lower Court directing the acquittal of the accused is manifestly perverse the Appellate Court would not set it aside. Crown v. Sultan Ahmed P L D 1955 Bal. 1, that while in considering an appeal from acquittal the whole case is at large before the High Court both as to the facts and as to the law, the Appellate Court will be slow to disturb a finding of fact arrived at by a Judge who had opportunities for assessing the value of evidence which the Appellate Court has not had in Crown v. Abdul Majid P L D 1950 Bal. 13, that a verdict of acquittal should not be lightly disturbed by the High Court, yet if the acquittal of the accused is manifestly wrong and it is not just a question of taking a view different from one taken by the . trial Judge, the High Court can rightly interfere in State v. Sadiq and another P L D 1960 Lah. 774."

The learned Judges then go to observe. These rulings are no longer good law as will be seen presently. More authoritative law in our view is to be found in the following rulings whereafter the passage from Sheo Swarup's case which I have already quoted is reproduced and then a passage from the judgment of the Federal Court in Anwar v. The Crown (P L D 1955 F C 185) is quoted as follows:‑

"Technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion c formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can therefore, be laid down defining the clauses of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contain ed in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended mis carriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial are relevant factors to be duly weighed. Cases which lay down that the discretion is not to be exercised unless the judgment of acquittal be perverse or based on a view of evidence which no reasonable man will take merely indicate the classes of cases in which an interference is necessary and do not lay down that in no other case can the High Court interfere. It is a wise rule to follow that where the Legislature itself does not define the limits of or the grounds for the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems to me that the practice while interfering with orders of acquittal or recording strong finding as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated because if these be the only grounds on which an order of acquittal can be interfered with, revisional Courts will in every case be engaged in determining the preliminary issue whether the error com mitted is gross or palpable and the view taken perverse or foolish and not the real question whether the order of acquittal is wrong, and if allowed to stand, would occasion, a failure of justice."

6. The question was again considered by the Supreme Court in Abdul Majid v. The Superintendent and Remembrancer of Legal Affairs (P L D 1964 S C 422) and the following passage in the judgment is an exposition of the law by which of course 1 am bound and with which, if I may say so with respect, I am in entire agreement:‑

"This being a case of reversal of an acquittal by the trial Judges, supported unanimously by the assessors, it is desirable that I should commence by stating a fundamental principle applicable to such cases. It is 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 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 the occurrence and familiar with its 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 loca lity. It enjoys also 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 though to be well schooled in but also that which they give under the probing stresses of cross‑examination. A good deal of emphasis has been laid in the present case upon a very usual feature of such cross‑exami nation namely, that, based upon earlier statements made by the witnesses before the police and elsewhere. But that it is not the only feature of the depositions to weigh in the estimation of the degree of credence, which, as human to human, the Court is prepared to place upon the testimony. In other words, while a witness prejudices his evidence by departing significantly from an earlier statement by him self or by some other witness, and his evidence may equally be damag ed by errors of other kinds, yet there is also in progress while he makes his statement a formation of opinion in the mind of the Judge and of the jury or assessors sitting with him, as to whether in a human way, they would be prepared to rely upon what he has been saying. When the judgment comes to be written the attention of the writer is naturally focussed upon the written record, and it is consequently rare to find that the Judge makes refers to the impression of reliability or otherwise which any witness made upon his mind. But it is as true as any proposition can be with reference to so delicate a matter as the formation of an opinion upon oral evidence as to a part event, that this impression or reliability or otherwise forms a substantial part of the whole bundle of reasons which determine the decision of the Court finally to rely or not to rely upon the witnesses.

These are matters which lie within the consciousness of every person who has performed the function of a Judge, and we drew attention to them only because it appears with clarity in the judgment under appeal that the reliance of the learned Judges upon a number of witnesses whom the trial Judge had characterised an unreliable, is based upon a number of external and almost incidental factors which they have canvassed at considerable length, but at the same time they have ignored the simple fact that having had the advantage of seeing and being familiar with the manners and modes and practices and reactions. in given circumstances of the locals, the trial Judge had recorded that each of these witnesses was in his opinion, an unreliable deponent, in the case before him.

In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as much importance must be given as in any other case, to the rule which runs through the criminal jurisprudences of our country as a golden thread that the benefit of every doubt must go to the accused person. In this case, the Judge of the trial Court had canvassed in his judgment a considerable number of features which went to create doubt regarding the testimony or each of the aforesaid witnesses, a doubt which was clearly shared and expressly declared by the assessors. As was remarked by the Judicial Committee in the case of Sheo Swarup and others 1934 I A 398 the fact of the acquittal by the trial Court certainly does not operate to diminish the substantial nature of such doubts or of the benefit to the accused persons which must necessarily follow. That is a principle which appears to have escaped the notice of the learned Judges in this case, we must not be thought to say that such a view of the facts or the conclusion therein formed by a trial Judge or even by a jury is bind ing on a Court of appeal in Pakistan. A verdict by a jury upon proved facts which no reasonable body of men could conceivably reach 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 he has read the evidence fairly, and has formu lated grounds of doubt which' are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings."

7. As I understand then the position then in dealing with acquittal, particularly which rests wholly upon the direct evidence of witnesses the principle of the benefit of doubt must never be lost sight of. If, therefore, the grounds upon which the trial Judge has rejected the testimony of the witnesses are reasonable then even though the High Court may not share his opinion it ought not ordinarily to reverse his findings. That is not however to say that his opinion is binding upon the High Court and I think, therefore, that if the reasons which appeal to the trial Judge for rejecting the testimony the oral witnesses are, in the opinion of the High Court, not valid reasons then it becomes the duty of the High Court to re‑examine the evidence and, if itself satisfied that the evidence warranted a conviction beyond reasonable doubt, then the High Court would be failing in its duty if it refused to inter fere merely because the appeal is one against an acquittal. So to do I think, would be in effect to refuse to exercise a jurisdiction which the law vests in the High Court and to ignore the clear wishes of the Legislature as expressed in section 417 of the Code of Criminal Procedure.

8. I therefore begin by considering the reasons which have appealed to the learned trial Judge in rejecting the evidence. The learned Judge deals first with the motive which, according to the first informant, lay in the suspicion of the respondent that the deceased had developed criminal inti macy with one Mst. Sabhai who was a niece of the respondent. The principal reason that the learned Judge assigns for this is that he has not referred to the fact in his deposition in the committal Court but, regard being had to, the fact that he admittedly has referred to it in the first information report I am quite unable to see how the omission in the committal Court deposition really affects the matter. Omission in a previous statement might be regarded as having the effect of casting a doubt on the truth of the allegation as being an after thought but if that statement has been made in a yet earlier statement,. obviously this cannot be so. He then goes on to say that in his deposition in Court he alleges that the respondent gave expression to this suspicion even when he shot the deceased but that he has not stated this in the first informa tion report and that the other two witnesses Hussain Bakhsh and Muhammad,' Moosa also do not say so. Now here again I think the learned Judge is not being completely fair to the prosecution because, although it is true that the other two witnesses do not say that he said so, they do say that he abused the deceased and nobody questioned the witnesses as to the precise language of' this abuse. I would agree, that primarily it was the duty of the Public Prosecutor to have asked the question but if the learned Judge is placing so great an emphasis upon this, then I think in the interest of justice he might himself have also asked the question and it certainly was within his power, as think it lay within his duty, so to do.

He then discusses the evidence of Mohammad Moosa and describes him as a chance witness inasmuch as he resided twenty miles away from the village. Surely however, this argument entirely overlooks the fact that the, marriage of the daughter of Hussain Bux admittedly took place the previous night and that Muhammad Moosa is a close relation which would make his, coming from his village for the purpose of attending the marriage and spend ing the night there wholly natural. I am therefore unable to regard the presence of Mohammad Moosa as being that of a chance witness and the observation of the learned Judge that "he still imports his presence in this village on the ground that he had to attend the marriage of Hussain Bux's daughter" is I think very specious reasoning. He then goes on to say that in any case Moosa should have left inasmuch as the other guests had already left. But it was still about mid‑day after the night of the marriage and I can ,hardly regard his staying on until that period as being unnatural. After all when relations come for attending a marriage from different villages it is not to be expected that they will leave immediately after the ceremony and even if he had taken advantage of the occasion to stay‑ on for a day or two more with his relations I could not possibly regard that as unnatural. As it is, as noticed by the learned Judge himself in the very same paragraph one other guest namely Mandro Shaikh had also not yet gone away but this the learned Judge does not take into consideration for judging the naturalness of the conduct of Moosa but by implication comments upon the non‑examina tion of Mandro Shaikh as a witness. Mandro Shaikh however, may have remained in the house but that does not necessarily mean that he was present outside in the street. The learned Judge's criticism obviously is somewhat self‑contradictory when on the one hand he seems surprised that all the witnesses who have been examined happen to be present at the relevant time outside in the street and yet adversely comments upon the non‑examination of a witness, who though present in the village and possibly in the house, is not alleged to be present outside in the street at the actual occurrence. The learned Judge is surprised that Hussain Bux and Moosa should have a long chat in the street but, in the first place, nobody has said that there was a long chat nor, if there was, can I really regard that either as being unnatural. When guests are leaving a house it is not at all unusual that even at the door they may continue conversing with their hosts before finally leaving.

10. In regard to Luqman the learned Judge's criticism is as follows:‑

"12. Luqman states that he and the deceased had gone to cut "Juwar" grass from the complainant's land and returned at 1‑30 p.m. They stopped the bullock cart just near the house of Hussain Bux and not near the house of the deceased although the street was wide enough to drive the cart up to the house of the deceased, being 9 feet in width at that point. The deceased unyoked his bullocks and took them inside his house. He came back to remove grass from the cart. Both Luqman and the deceased had gone to leave the bullocks, Luqman could have kept him self‑busy and removed his grass at least from the cart and carried it to his house. There was no reason for him to stay away there."

This reasoning I have entirely been unable to follow.

11. Luqman's evidence he also doubts on the ground that, according to Rustam, also a Shaikh who is the mashir with regard to the scene of offence and the production of the gun, he, Rustam, and Luqman were partners in a contract of fuel, by which I suppose is meant firewood. Rustam states that they used to go every morning and come back at noon time and that on that day also they returned at about 12 or 1 p.m. I am unable to regard this as sufficient criticism of Luqman's evidence for it is clearly contradicted by the fact that Allah Wasayo obviously did go for the purpose of cutting grass and that he died at the time alleged and in the circumstances alleged can hardly admit of any dispute.

12. Hussain Bux's evidence the learned Judge dismisses even more ,shortly by saying that having dealt with Mohammad Moosa's evidence he has in the same context also dealt with Hussain Bux's evidence and im plies that, if Moosa is not to be believed, Hussain Bux cannot be.

13. The learned Judge then has criticised the absence of the evidence of the Ballistic Expert, but I am quite unable to see what that evidence could have yielded. The cartridge in question was not found at the scene but from the gun itself. Admittedly only one shot was fired and the gun was a double barrelled gun and no occasion for reloading arose. Even therefore, if the Ballistic Expert had come and given evidence all that could have been establi shed was either that the gun was the one which was used for firing the cartridge found in it or that it was not. In either event it would have carried the mater no further and the case against the appellant would still have had to rest upon the ocular testimony which would have been neither supported nor contradicted by that of the expert.

14. The next piece of criticism that the learned Judge makes that the wound on the deceased shows no signs of charring. Now the evidence of the doctor does not even disclose that there was no charring; all that he states is that he does not remember whether there was any and it is true that the post‑mortem notes have no mention in them of any charring marks. I am prepared to assume therefore that there were no charring marks. The distance however from which the respondent is said to have fired the gun is 4 to 5 paces, that is to say about 6 or 7 feet and, quite apart from the fact that the doctor was not asked whether at that distance there would not be charring marks, reference to the Medical authorities also does not indicate that firing at that distance would cause charring.

15. Finally the learned Judge places reliance upon the opinion of the doctor that the direction of the injury was "from left and front side going little upwards" and that the assailant may have been at a lower level at the time of firing at the deceased. To this the learned Judge adds his own obser vation, which no doubt must be correct, that the respondent is quite tall and that it has not come in evidence that he sat down and fired at the deceased in that position. I regret I am unable to see the force of this argument. We are dealing not with a bullet but with a cartridge and there must be some degree of spread; the injury is on the head and even if the respondent stooped very slightly to take aim that could well account for the direction of the pellets.

16. In these circumstances I am not at all satisfied with the reason which the learned Judge has advanced for disbelieving the witnesses and I do not think that they can be described, in the words of Supreme Court in P L D 1964 S C 422, as a case where the trial Judge "has read the evidence fairly and have formulated grounds of doubt which are not perverse or wholly illogical or unreasonable." It therefore becomes our duty to examine the evidence for ourselves. Now there is in this case no evidence of previous hostility unless the motive can be considered as such. Clearly it cannot because there is no allegation on either side that on account of this motive the respondent had ever complained or that there was bad blood between the parties. The witnesses therefore although related to the deceased are not inimical to the respondent and it has been held over and over again that the mere interest of the witnesses in the deceased is no reason for disbelieving them. The incident took place outside the house of the deceased and all the witnesses had good reason to be present there. I have already indicated my reasons for not agreeing that Mohammad Moosa can be described as a chance witness; on the contrary under the circumstances I think he was a per fectly natural witness.

17. The danger that might exist in some cases of the false implication of innocent persons in addition to the guilty ones is clearly ruled out by the fact that only one person in all has been implicated. The incident took place in broad day light and it would be fantastic to assume, regard being had to the place where the murder took place, that it was an unwitnessed crime. The first information has been recorded, regard being had to the distance and the fact that the first informant went to the Police Station on foot, with reasonable promptness. I am wholly unable to see therefore, why the evidence of these witnesses should be disbelieved. There is nothing in the cross‑examination of the witnesses which leads to any such conclusion nor has the learned counsel for the respondent pointed out any such matter. I have therefore come to the conclusion that the case against the respondent has been established beyond reasonable doubt and he ought to be convicted of the offence of murder.

18. In regard to the question of sentence however, there are circum stances which pursuade me that the extreme sentence is not called for in this case. The incident took place on the 22nd September 1969 that is about 4J years ago and he was acquitted on the 17th September 1970. Thereafter has been not only in the fairly reasonable belief that he is not to be punished but has in fact been on bail. I would therefore allow this appeal and convict the respondent under section 302 of the Pakistan Penal Code and sentence him to imprisonment for life.

K. B. A. Appeal accepted.

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