2011 SCMR 474 (PLP)

CH. IJAZ AHMED, J.

Petitioner seeks leave to appeal against the judgment of the High Court dated 15-4-2009 wherein the appeal of respondent No. 1 was accepted and he was acquitted.

2. The facts of the case as depicted in para 2 of the impugned judgment are as follows:-- "The prosecution was launched with registration of F.I.R. by Munir Ahmad (complainant) to the effect that at 3-00 (noon), he along with Muhammad Saleem and Muhammad Aslam were present on the eastern brink of Umarpur Naala, and Allah Bachaya was coming to his house. When Allah Bachaya came in front of Chah Arriwala, Azam (accused/appellant), Muhammad Iqbal and Muhammad Ramzan armed with pistols rushed out of a room, shouted a lalkara to Allah Bachaya and all the three started firing on him, two fire hit Allah Bachaya on his left leg near the thigh and one fire hit his anus and he fell down. From the firing of the accused Muhammad Hayat who was also coming on the brink riding a bicycle also sustained injury on his leg. Thereafter, the accused escaped from the place of occurrence by firing in the air but Allah Bachaya died at the spot." Respondent No.1 namely Muhammad Azam along with his two co-acquitted accused, namely, Muhammad Iqbal and Muhammad Ramzan were involved in a case F.I.R. No. 314 which was registered on 25-9-2001 at Police Station Rohilanwali under section 302/324/34, P.P.C. on the complaint of Munir Ahmed. The learned Additional Sessions Judge Muzaffargarh vide its judgment dated 31-1-2003 convicted and sentenced the accused as under:-- Muhammad Azam Death under section 302(b), P.P.C. with compensation of Rs.50,000 to be paid to the legal heirs of the deceased Allah Bachaya. In case of default in payment of compensation to further undergo six months' S.I. The said compensation will be recoverable as arrears of land revenue. He was acquitted from the charge under section 324, P.P.C. Muhammad Iqbal and Muhammad Ramzan They were acquitted from the charges framed against them by giving them the benefit of doubt. Respondent No.1 being aggrieved filed Criminal Appeal No.64 of 2003 in the Lahore High Court, Multan Bench, Multan. Munir Ahmed complainant also filed Criminal Revision No. 72 of 2003 against respondent No.1 seeking further enhancement of compensation. Murder Reference has been sent by the learned trial Court. The learned High Court vide impugned judgment acquitted respondent No.1 and dismissed the criminal revision filed by complainant. Hence the present petition.

3. The learned counsel for the petitioner submits as under: (i) The investigating agency has not conducted the investigation of the case fairly, justly and honestly. (ii) Muhammad Hayat was also injured in the incident in question who had sustained injury on his leg as is evident from the contents of the F.I.R. This fact also highlighted by the eye-witnesses of the occurrences Munir Ahmed, complainant P.W.3 and Muhammad Saleem P. W .4. (iii) The occurrence had taken place in the daylight at 3-00 p.m. but the Investigating Officer did not record the statement of Muhammad Hayat injured witness. (iv) Muhammad Hayat was also medically examined on 25-9-2001 by Dr. Muhammad Siddique Bhatti, P.W.8. (v) The police authorities have not cited injured Muhammad Hayat in the report under section 173, Cr.P.C. which reveals that the police has failed to assign Muhammad Hayat as prosecution witness nor produced his MLR No. 152-R dated 25-9-2001. (vi) The most important prosecution witness was not produced by the police which vitiated the whole trial. (vii) Both the courts below did not advert to this aspect of the case by not summoning the injured witness for recording the evidence, which is essential to the just decision of the case, therefore, both the courts below have decided the present case in violation of the mandatory provisions of Qanun-e-Shahadat Order, 1984 and provisions of Criminal Procedure Code. (viii) Mian Salim-ur-Rehman learned PP for the State had given up P.Ws. Muhammad Aslam, Mst. Nasreen and Dildar Ahmed being unnecessary whereas he did not say single word qua non-producing Muhammad Hayat, injured witness. (ix) He has also relied upon the following passage from the cross-examination of Sadiq Hussain, Sub-Inspector, to show that the police did not investigate the case in accordance with law:-- "After getting myself satisfied as to the preparation of the challan, the accused were challaned to the Court. I did not mention Muhammad Hayat injured in the calendar of the witnesses because it came to my knowledge that he was supporting the accused party. I did not interrogate Muhammad Hayat injured. The I.O. told me that Muhammad Iqbal injured was giving favour to accused, therefore, I did not mentioned him as P.W. I have discharged my duty properly. Being SHO/S.I., I did not want to damage the merits of the case."

4. We have given our anxious consideration to the contentions of the learned counsel for the petitioner and perused the record. It is admitted fact that petitioner did not raise the aforesaid pleas before the trial court and the such pleas were also not taken in the memo of revision petition before the High Court. Sahibzada Farooq Ali Khan, Senior Counsel, appeared on behalf of the complainant in the High Court. The aforesaid pleas were not raised before the learned High Court as evident from the impugned judgment. It is admitted fact that learned trial court had acquitted co-accused of Muhammad Azam respondent No.1, namely Muhammad Iqbal and Muhammad Ramzan but the petitioner did not agitate their acquittal before the learned High Court as evident from the impugned judgment. Their acquittal has also not been challenged by the petitioner/complainant before this Court as is evident from the memo of parties names of the present petition. Motive behind the occurrence as alleged by the prosecution is that Muhammad Iqbal and Ramzan had a dispute of land with Allah Bachaya deceased and litigation between them was also pending. Motive was not proved against Muhammad Azam respondent as evident from para 6 of the impugned judgment. The learned High Court had discarded ocular account furnished by Munir Ahmed P.W.3, Muhammad Saleem P.W.4 after reappraisal of the evidence on record by observing that there are improvements and contradictions in their statements as well as in the statement of Investigating Officer P.W.6 Sadiq Hussain, Sub Inspector as is evident from paras 7 and 8 of the impugned judgment. The statement of the eye-witnesses is also in conflict with medical evidence as evident from para 9 of the impugned judgment. Recovery from respondent No.1 has also not furnished corroboration in view of the finding of the learned High Court as evident from para 12 of the impugned judgment. Learned High Court has also taken judicial notice of the fact that prosecution had failed to produce Muhammad Hayat injured who is an independent and direct witness of the incident in question as evident from para 14 of the impugned judgment. It is settled law that the witnesses while appearing in the court had made improvements in their statements to strengthen the prosecution case cast serious doubt on the veracity of such witnesses, therefore, the learned High Court was justified to come to the conclusion that their statements are not worthy of reliance. See Saeed Muhammad Shah's case (1993 SCMR 550) and Muhammad Shafique Ahmad's case (PLD 1981 SC 472). The learned High Court was justified to come to the conclusion that medical evidence is in conflict with ocular evidence, therefore, reliance on such ocular testimony is unsafe as law laid down by this Court in Bagh Ali's case (PLD 1973 SC 321), Zarshad's case (1972 SCMR 644) and Darey Khan's case (1972 SCMR 578). The recovery was also ignored by the learned High Court with cogent reasons. See Shah Bakhsh's case (1990 SCMR 158). According to the prosecution one Muhammad Hayat was also injured in the incident in question who was not produced by the prosecution without sufficient reasons highlighted by the prosecution, therefore, learned High Court was justified to presume that had the witness been produced he would not have supported prosecution case as law laid down by this Court in Muhammad Shafqat's case (1970 SCMR 713). We have re-examined the evidence on record in the interest of justice and fair play. We do not find any infirmity or illegality committed by the learned High Court while reappraising the evidence on record which was paramount duty of the learned High Court to re-examine the evidence on record at the time of deciding the appeal of the respondent No.1. It is admitted fact that two acquitted co-accused of respondent No.1 who had allegedly taken part in the attack were found by the trial court to have beep falsely implicated by the same witnesses who deposed against him, therefore, the leached High Court was justified to acquit respondent No.1. The learned counsel for the petitioner has raised plea qua summoning of Muhammad Hayat injured witness whose name was not mentioned in the calendar of witnesses under section 540, Cr.P.C. before this Court when the learned High Court had already taken judicial notice against the prosecution. The aforesaid provision was-interpreted by this Court benevolence and laid down the following benefits in Haji Aurangzeb's case (PLD 2004 SC 160):-- (1) benefit to the exempted accused. (2) benefit to the co-accused under trial, (3) benefit being the convenience of the court itself. Mere reading of section 540, Cr.P.C. shows that Court has wide powers to call or recall any witness but such powers are not to be exercised to fill in the lacuna left by any party. The Court has to exercise these powers judiciously for just decision of case keeping in view circumstances of each and every case. This Court generally does not allow to raise such pleas for the first time before this Court with the sole object to create doubts about the judgments of the courts below. See Sh. Muhammad Ahmad's case (PLD 2003 SC 704). The petitioner has not agitated the matter before the trial court when the challan was submitted before the trial court and his name (Muhammad Hayat injured) was not mentioned in calendar of witnesses. During the proceedings before trial court the petitioner has not raised this plea and also failed to raise such plea even in the, High Court. In view of the aforesaid circumstances highlighted hereinabove we do not find any force and we are not inclined to vitiate the judgments of the courts below consequently and remand the case of the respondent for retrial at this belated stage as is evident from the following facts: (i) F.I.R. was lodged on 25-9-2001 (ii) Trial Court convicted respondent No. 1 vide its judgment dated 31-1-2003. (iii) The learned High Court had acquitted respondent No.1 vide judgment dated 15-4-2009. It is settled law that for enhancement of sentence, the order impugned should be either perverse or arbitrary or without any substance reason. See Ghulam Sikandar's case (PLD 1985 SC 11). In the light of principle laid down by this Court in the aforesaid judgment we see no illegality committed by the learned High Court while acquitting respondent No.1. The reasoning noted in aforesaid paragraphs in the impugned judgment shows that the learned High Court had acquitted respondent No.1 after judicious application of mind and after considering each and every piece of evidence.

5. In view of what has been discussed above we do not find any infirmity or illegality in the findings of innocence recorded by the learned High Court in the impugned judgment qua respondent No.1. Therefore the petition has no force and the same is dismissed. Leave refused. M.H./M-92/SC Petition dismissed.