P L D 2006 Supreme Court 427 (PLP)

CH. IJAZ AHMAD, J.

The detailed facts have already been mentioned in the impugned judgment. However, the necessary facts out of which the present petition arises .are that respondents were involved in a case F.I.R. No.463 which was registered at police station Saddar Kamalia under sections 302/364/324/109/34 of PPC on the complaint of Zahida Saleem widow of Muhammad Saleem deceased. The investigating agency investigated the matter and found Muhammad Naseem respondent No.1 guilty and submitted challan in the competent Court against respondents. The Additional Sessions Judge vide judgment dated 6-8-2003 acquitted all the respondents. The petitioner being aggrieved filed Criminal Appeal No.1657 of 2003 in the Lahore High Court which was dismissed vide impugned judgment dated 17-12-2003. Hence, the present petition.

2. The learned counsel for the petitioner submits that prosecution had established the guilt of the respondents of the ocular account by producing two injured eye witnesses P.W.6 Mst., Zahida Naseem and Faiz Saleem P.W.7. He further urges that ocular account was corroborated by recovery of weapons from the respondents Exh.P.5 Sota and Pistol Exh.P.6 along with crime empties Exh.P.1/3 and medical evidence. He further urges that both the Courts below had erred in law to discard the statements of injured witnesses. There was sufficient incriminatory evidence produced by the prosecution which was sufficient to connect the respondent with the commission of offence. He further urges that learned Courts below had acquitted the respondents by mis?reading and non-reading of the record and wrongly relied upon the finding of the investigation agency according to which respondents were found' innocent except respondent No.1. He further urges that prosecution had not concealed the injuries inflicted to the respondents during the scuffle as the injuries which were allegedly inflicted to the respondents were self sustained injuries. He further urges that version of the prosecution was in line with the evidence on record but both the Courts below erred in law to accept the defence version.

3. We have given our due consideration to the contention of learned counsel of the petitioner and perused the record. It is deemed proper to reproduce principles laid down to interfere where the accused were acquitted by the Courts below: See Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11:-- "(I) In an appeal against acquittal the Supreme Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re?appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This different approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. (II) The acquitted will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (III) In either case the well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere .assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason. (IV) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusions and irresistible conclusions; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

4. It is well-settled by now that the superior Courts while dealing with the appeal against the acquittal interfered only in such cases where the judgment and acquittal is based on misreading, non-appraisal of evidence or is speculative artificial, arbitrary and foolish on its face.

5. The learned High Court while deciding the appeal of the petitioner had kept in mind the aforesaid principle. It is pertinent to mention here that the Courts below had not believed the motive set up by the prosecution. The ocular account furnished by the prosecution through injured witnesses is in conflict with the medical evidence as observed by both the Courts below by comparison as depicted from para. 3 of the impugned judgment of the Lahore High Court and para. 37 of the judgment of the trial Court. It is also an admitted fact that the witnesses had made an improvement in their statements before the trial Court to bring their statements in accord with the medical evidence. It is also observed by both the Courts below that prosecution had failed to provide any evidence with regard to abetment to connect the commission of offence committed by respondents Nos.3 and 4 and in fact the. learned counsel of the petitioner had conceded before the High Court that it was a case of no evidence vis-a-vis respondents Nos.3 and 4 as depicted from para. 3 of the impugned judgment. It is also an admitted fact that prosecution had concealed the injuries inflicted to the accused party in the contents of the F.I.R. as well as before the trial Court. Both the Courts below had taken note of this concealment while giving benefit to the respondents. It is also an admitted fact that both the sides had given their own versions. The courts below had believed the defence version as compared to the prosecution version after proper appreciation of evidence. It. is an admitted fact that prosecution had involved respondents Nos.3 and 4 for committing abetment to the prosecution as mentioned above had failed to bring the same and in fact it was conceded by counsel of the petitioner before the High Court that he could not point out piece of evidence to connect the respondents Nos.3 and 4 qua the commission of offence. It-is pertinent to mention here that names of the aforesaid respondents were mentioned in the contents of the F.I.R. and their involvement was not proved by the prosecution through the eye witnesses P.W.6 and P.W.7. Their statements were disbelieved to the extent of respondents Nos.3 and 4 in toto. It is a settled principle of law that when such type of witnesses who had deliberately involved innocent person in a charge of capital nature, then the courts insisted upon independent and strong support in the nature of circumstantial or otherwise for giving finding of guilt against co-accused of the innocent victim a false implication by the same eye-witnesses. Mere this aspect of the case is sufficient that the impugned judgments were passed by the Courts below against the petitioner with cogent reasons as the prosecution was responsible to involve large number of persons in the case in question. See Wasiullah v. Mirza Ali and others (PLD 1963 SC 25). It is a settled principle of law that weak evidence plus week evidence cannot corroborate each other. In the present case the prosecution had produced P.W.6 and P.W.7 to prove the motive, ocular account and recovery. In the instant case the eye-witnesses and the recovery witnesses being the same, as mentioned above, the question of corroboration would be a mere farce. Whenever any corroboration is required, it emplies that it should be an independent one. If the corroboration is also through the same witness whose statement is required to be corroborated it will be no corroboration in the eye of law in these circumstances, we are of the opinion that both the Courts below .were justified to ignore the recoveries. Both the Courts below after proper appreciation of evidence had given finding of fact against the petitioner that petitioner had failed to prove the motive and also justified after comparison of the two versions of the prosecution and defence and had rightly come to the conclusion that defence version was plausible as compared to the prosecution version. It is also a settled principle of law that this court cannot interfere in the concurrent conclusions arrived at by the both the c Courts while exercising power under Article 185 (3) of the Constitution as the law laid down by this Court in the following judgments: (i) Hamayun's case (1986 SCMR 1987); (ii) Ibrahim's case (1989 SCMR 1521); (iii) Muhammad Khalid's case (1986 SCMR 1956); (iv) Abdullah's case (1987 SCMR 513); and (v) Ghulam Hussain's case (1984 SCMR 1540)

6. In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the High Court. Consequently this petition has no merit and the same is dismissed. Leave to appeal is refused. M.B.A./Z-9/S????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.