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Criminal Appeal No. 73 of 1978, decided on 16th June, 1986.

(On appeal from the judgment and order of the Lahore High Court, dated 20‑2‑1974 in Criminal Appeal No. 344 of 1972 and Murder Reference No. 97 of 1972) .

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Appeal against acquittal‑‑Leave to appeal granted to examine correctness of acquittal of accused by High Court and whether it had resulted in miscarriage of justice.

Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Appeal against acquittal‑‑Complainant unable to challenge judgment of Trial Court regarding doubtful nature of motive alleged against accused‑‑Three out of four main items of evidence, namely, extra‑judicial confession, motive and recoveries were brought under serious doubt‑‑Argument of complainant was not that High Court misread or ignored any evidence but he wanted Supreme Court to differ with High Court on these questions‑‑Reasoning of High Court neither impossible nor based on misreading of evidence‑‑Appeal dismissed.

(c) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Acquittal, appeal against‑‑Appreciation of evidence‑‑Mere existence of another possibility regarding appreciation of evidence, held, would not be a good ground for setting aside a judgment of acquittal.

Mian Saeedur Rehman Farrukh, Advocate Supreme Court and Salahuddin, Advocate‑on‑Record (:absent) for Appellant.

Mujeebur Rehman, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.1.

7. Bilal, Advocate Supreme Court for A.G., Punjab Lahore and Sh. Ejaz Ali, Advocate‑on‑Record (absent) for Respondent No.2.

Date of hearing: 16th June, 1986.

This appeal against acquittal is directed against judgment, dated 20th February, 1974, of the Lahore High Court; whereby in a murder reference and on a criminal appeal, the conviction (and sentence of death) of Muhammad Ali respondent for the murder of Maqsood Anwar, was set aside and he was acquitted. His co‑accused Muhammad Siddique who had not filed an appeal against his conviction for lesser offence also got the benefit from the High Court, in that in suo motu revision his conviction and sentence, were also set aside.

The prosecution case is that Muhammad Nazir appellant who is also the complainant in the case owned a grocery shop. In his business he was assisted by his brothers including Maqsood Anwar deceased. Muhammad Ali accused was employed as a servant in the said shop for nearly a decade. A few months before the present occurrence Maqsood Anwar suspected Muhammad Ali of misappropriating the sale proceeds whereupon complaint was made to the appellant by the deceased with a suggestion that Muhammad Ali accused be removed from the job. Their father, however, on the asking of the respondent intervened. The matter was settled and the removal of the respondent did not thus take place. However, he bore a grudge against Maqsood Anwar and became inimical to him. Due to this, on night 18th and 19th February, 1971, he allegedly committed the murder of Maqsood Anwar when he was asleep in the shop, and in order to save himself made up a false story of an attack by some decoits. The story according to the prosecution coined by him was that Muhammad Din and Rafiq P.Ws. were awakened by the call of the respondent from inside the shop that he was lying tied up and the owner of the shop, namely, Muhammad Nazir, may be informed about it. Muhammad Din thereupon informed Nazir appellant who rushed to his shop. As the front door was locked from inside he entered the shop through the back door and saw the respondent sitting near the front door and his hands and legs had been tied down with a string. His clothes and Chappels were stained with blood. He enquired from the respondent as to what had happened and he gave out that he went to get milk from the hotel at 9 p.m. and when he returned to the shop he saw 4 or 5 persons in the store room who caught hold of him and tied him with the string. Nazir then went to the store room and saw his brother lying murdered. Nazir was not satisfied with the explanation given by the respondent and he thereupon proceeded to Police Station where he lodged the First Information Report at 1.45 a.m. The police came to the spot and secured an attach ‑case and the clothes lying scattered in the courtyard of the shop. It collected blood‑stained earth from underneath the cot together with some articles lying on the cot which were also stained with blood. The string was also taken into possession after its removal from the person of the respondent. His blood‑stained vest, shirt, Pyjama and Chappels were also taken into possession. He led to the recovery of a Toka which he had placed in a heap of bricks and dry grass near the eastern wall of the shop. The respondent further led to the recovery of six currency notes amounting to Rs.600 lying in a heap of newspapers underneath an almirah. During the investigation it transpired that Muhammad Siddiq the brother of the respondent was also involved in the crime. He was accordingly arrested where after he led to the recovery of blood‑stained Bambee (an iron pointed instrument used for taking out samples from gunny bags in a grocery shop). It may be mentioned here that according to the prosecution when Nazir and everybody else had gone to lodge the F.I.R. and the respondent was alone in the shop one Mushtaq Ahmad a brother‑in‑law of the appellant remained behind with the respondent in the shop. On Mushtaq's asking as to what had happened the respondent, it is further alleged, made an extra‑judicial confession stating therein the motive aforementioned and giving the details as to how he prevailed over his brother Muhammad Siddiq to murder Maqsood Anwar. And that while he used the Toka, Muhammad Siddiq used the iron Bambee and thus murdered Maqsood Anwar.

The trial Court accepted the evidence of extra‑judicial confession made by the respondent to Mushtaq Ahmad as the latter was held to be of unimpeachable integrity. The recoveries of incriminating articles were also accepted as genuine, as also the presence of the respondent inside the shop with the front door locked from inside as presumptive proof of his guilt in the context of other circumstantial evidence.

On appeal and reference learned Judges in the High Court on their re‑appraisal of the evidence disbelieved the extra‑judicial confession and held that the evidence in regard to recovery of incriminating articles was also highly doubtful. Finding no other evidence to sustain the conviction they acquitted the respondent. As for Muhammad Siddiq as noted earlier the learned Judges also reviewed his case suo motu under section 439, Cr.P.C. and acquitted him.

On petition for leave to appeal by Muhammad Nazir complainant leave to appeal was granted to examine the correctness of acquittal of respondent by the High Court and whether it has not resulted in miscarriage of justice.

We have heard the learned counsel for the appellant and the learned counsel for the respondent as well as the learned counsel for the State who supported the appeal. We have also gone through the record. Learned counsel for the appellant had laid stress on the fact that there were several items of circumstantial evidence which supported and corroborated the extra‑judicial confession, it was, therefore, a case for confirming the conviction and sentence by the High Court. He has counted the items of evidence as extra‑judicial confession; motive; recovery of blood‑stained clothes of the respondent and a blood‑stained Toka the crime weapon respondents presence in the shop during the night of occurrence: and lastly, the recovery of money at his instance. Learned counsel for the respondent referred us to the reasons given by the High Court for not believing the extra‑judicial confession and the recoveries. He also pointed out that motive had been disbelieved by the trial Court which finding had not been disturbed by the High Court. Regarding the presence of the accused with the deceased in the shop during the night of occurrence, he explained that the accused never admitted that he was an eye‑witness to the occurrence. They were sleeping in the different rooms of the shop, therefore, it could not be said with certainty that they were present in the same room at the time of the occurrence.

We have perused the reasons. The learned Judges of the High Court have given four reasons for not believing the extra‑judicial confession: one, that the only witness thereto is a very close relation of the complainant; two, that the brother of the witness is a Sub‑Inspector in the Police Department, three, that the witness has made improvements upon the police statement made under section 161. Cr.P.C.; and lastly, that there was no occasion for the respondent to have made extra‑judicial confession in the manner deposed to by Mushtaq P.W. Regarding recoveries the learned Judges noted that Barkat Hussain the recovery witness from the public was a stock witness of the police and according to his own admission he might have appeared in dozens of cases as a prosecution witness. The other witness from the public was Muhammad Nazir himself who undoubtedly is an interested witness. The Investigating Officer had made an admission in cross‑examination that Barkat Hussain P.W. might have joined the investigation in nearly. half a dozen cases. A discrepancy was also pointed out with regard to the statement made by the Investigating Officer and Nasrullah Foot Constable. After disbelieving the recoveries for these reasons the learned Judges also noted the fact that Muhammad Nazir appellant had stated in the F.I.R. that respondent had removed Rs.600 and had scattered the clothes outside the shop. The learned Judges felt it strange that how Muhammad Nazir would have become aware at the time of the lodging of the F . I . R . exact amount of the currency which was later on recovered at the instance of the appellant. The suggestion being that the incriminating articles would have been planted.

Learned counsel for the appellant was unable to challenge the judgment of the trial Court regarding doubtful nature of the motive alleged against the respondent. Thus, three, of the main items of evidence, namely, the extra‑judicial confession, the motive and the recoveries were brought under serious doubt. The argument of the learned counsel for the appellant is not that the learned Judges of the High Court misread or ignored any evidence but what he wants this Court is to differ with the learned High Court on these questions. Even if there is a possibility of some difference of opinion regarding appreciation of evidence it is not a case in which it can be safely said that the reasoning of the High Court is impossible or is based on misreading of evidence. Mere existence of another possibility regarding appreciation of evidence is not a good ground for setting aside a judgment of acquittal. It has been so held in a recent judgment of this Court in Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 S C 11.

We accordingly are unable to set aside the respondent's acquittal on the arguments advanced by the learned counsel.

The only question that remains to be seen is whether after excluding these items of evidence the circumstance that the accused slept in the shop where murder took place on the night of occurrence can be considered enough for setting aside the acquittal. The site plan shows that it is not a one‑room shop nor it is the prosecution case that the respondent and the deceased were sleeping in one room of the shop. They were sleeping in different rooms. Moreover, it is in evidence that there was a back door to the shop which was open. In these circumstances this fact alone is not enough in the facts of the present case for setting aside the judgment of acquittal.

In the light of the above discussion we find no merit in this appeal and the same, is dismissed.

M. Y. H. Appeal dismissed.

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