2009 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

This Criminal Appeal No.647 of 2007 has been filed by Muhammad Ayub against the judgment dated 15-12-2006 passed by the learned Additional Sessions Judge, Jarranwala whereby he has acquitted the accused persons/respondents.

2. Precisely the facts of the case are that the complainant got registered case F.I.R. No.744 of 1997 under sections 324, 337-A2, 337-L2 and 34, P.P.C. at Police Station Jaranwala, wherein it was alleged that respondents inflicted injuries to the complainant party and being dissatisfied by the findings of the police the complainant filed a private complaint against the accused persons under sections 324, 452, 337-A2, 337-L2, 148, 149, P.P.C. The learned trial Court after recording the evidence convicted the respondents and sentenced them as under:-- Under section 149, P.P.C. and sentenced all the respondents to till rising of the Court. Under section 452, P.P.C. and sentenced all the respondents to fine of Rs. 1,000 per head and till rising of Court. Under section 337-L2 and sentenced to Tariq and Abdul Hameed respondents to fine of Rs.5,000 each as Damaan Under section 337-Al, P.P.C. and sentenced all the respondents to fine of Rs.5,000 as Damaan, and Under section 337-L2 and sentenced all the respondents to fine of Rs.2,000 as Damaan.

3. Being aggrieved by the impugned judgment and order the complainant filed the Revision Petitions for enhancement of the sentence before learned Additional Sessions Judge, Jaranwala, who, vide judgment dated 24-7-2006 remanded the case back to the learned trial Court while observing that learned trial Court had taken unnecessary lenient view while awarding sentence to the respondents and directed both the parties to appear before the learned trial Court on 4-9-2006. The learned trial Court decided the same vide judgment dated 27-9-2006 whereby it was announced as under:

"Mst. Khalida and Fatima accused have been attributed to have inflicted Sota blows upon the bodies of Safia Bibi and Razia Bibi, but as they were not attributed any specific injury to any one of them, so both were acquitted. Tariq and Abdul Hameed were convicted under section 337-L2, P.P.C, so they were convicted to pay Rs.10,000 as daman to victims. However they were previously non-convicted and by keeping in view of subsection (2) of section 337-N of P.P.C. the sentence of imprisonment was not awarded to them. Abdul Hameed was also convicted under section 337-Al, P.P.C. for payment of Rs.10,000 as daman for injury No.1, he was further convicted under section 337-L2, P.P.C. for payment of Rs.5,000 as daman for injury No.2. All the respondents were also convicted under section 149, P.P.C. till the rising of Court. Abdul Hameed, Tariq, and Khalida were convicted under section 452, P.P.C. and sentenced to six months' R.I. along with fine of Rs.1,000 for each, or in default of payment of fine, to further undergo 30 days' S.I., and' Mst. Fatima who was of extremely old age lady near about 90 years was convicted under section 452, P.P.C. but by taking lenient view she was sentenced to stand without support till the rising of Court."

4. Then aggrieved by the said order passed by learned trial Court, the respondents/convicts filed an appeal before the learned Additional Sessions Judge, Jaranwala which was accepted vide judgment dated 15-12-2006 and all the convicts were acquitted by setting aside the judgment dated 27-9-2006 passed by learned trial Court and revision filed by the present appellant for enhancement of sentence was also dismissed by learned Additional Sessions Judge, Jaranwala. The appellant feeling aggrieved by the judgment dated 15-12-2006 has filed this appeal.

5. Learned counsel for the appellant contends that the injured P.Ws. had fully supported the participation of the respondents in the commission of offence; that they had committed heinous offence; that the respondents did not challenge the judgment dated 24-7-2006 passed by learned trial Court, whereby they were found guilty and sentenced to till rising of Court and payment of Daman, which had already attained finality; that the appellant filed revision petition for enhancement of sentence which was accepted by the learned Additional Sessions Judge, Jaranwala and he remanded the case back to learned trial Court, for deciding the same afresh; that sentence was enhanced by the learned trial Court and said judgment having been challenged by the respondents by filing appeal before learned Additional Sessions Judge, Jaranwala, he has passed the impugned judgment whereby the respondents have been acquitted from the charges; that the 'revision petition filed by the appellant was dismissed by the learned Additional Sessions Judge without any plausible reason; that all the respondents were armed with weapons, who inflicted injuries to the P.Ws.; that the P.Ws. appeared before the trial Court, and already the lenient view was taken by the learned trial Court, in the quantum of sentence and the impugned judgment for acquittal of the respondents is not justified, which is liable to be set aside; that the appeal may be accepted and all the respondents be convicted in accordance with law. Learned counsel for the appellant relies upon Farooq Khan v. The State 2008 SCMR 917, Waris Hussain Shah v. Abid Hussain Shah and 3 others 2001 PCr.LJ. 268, Muhammad Sarwar v. The State PLD 2007 Lah. 618, Mahmood Ahmad and others v. The State and others 2007 PCr.LJ 1173, Zahir Hussain Shah and others v. Shah Nawab Khan and others 2007 PCr.LJ 1757, Abdul Aziz v. Muhammad Lal and 2 others 2001 YLR 236, Muhammad Pervez and others v. The State and others 2007 SCMR 670, Imran and 3 others v. The State 2007 PCr.LJ 721, Pervaiz Khan v. Shaikh Rais and 3 others 2009 PCr.LJ 10, Zahoor Ahmed v. The State 2007 SCMR 1519, Miss Kanwal Akram v. D.P.O. Gujrat and 11 others 2007 YLR 2169 and Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 in support of his contentions.

6. On the other hand learned counsel for the respondents has opposed the appeal and supported the judgment of learned appellate Court on the ground that prosecution witnesses are related inter se and inimical towards the respondents; that the respondents had falsely been implicated in this case; that the statements of the P.Ws. do not find support by the medical evidence as the X-ray report was not brought on record; that simple injuries have been attributed to the respondents; that it was admitted by appellant/complainant while appearing in the witness box before learned trial Court that Razia Bibi also gave injuries to Mst. Safia Bibi and Khalida Bibi; that the police had deleted the section 452, P.P.C. and declared Mst. Fatima, Mst. Khalida and Tariq accused innocent; that the finding of the Investigating Officer was never challenged by the appellant/complainant, and that the order of learned Additional Sessions Judge, Jaranwala through which the respondents have been acquitted may be upheld.

7. I have heard the arguments of learned counsel for the parties, perused the evidence of the parties and also perused the impugned judgments.

8. The incident in the present case had taken place on 30-8-1997 at 5-00 p.m. F.I.R. was got registered by the complainant on 31-8-1997 at 4-00 p.m. with the delay of 23 hours without any explanation. The appellant/complainant had involved all the family members of the respondents in the present case and during the investigation police came to the conclusion that Fatima Bibi and Khalida Bibi daughters of Abdul Hameed and Abdullah and Tariq son of Abdul Hameed were innocent and did not participate in the incident. The Investigating Officer also opined that Tariq respondent was innocent and not present at the spot. The opinion of the police is not binding upon the' Court but the said opinion was verified by the D.S.P. and they were not placed as accused in the report under section 173, Cr. P. C. Appellant and his witnesses admitted during the cross-examination that civil suit was pending between the parties, who had a dispute over distribution of property and present incident took place during the prosecution of said dispute.

9. The case of respondent is that all the P.Ws were inimical towards them due to litigation and dispute over the property and they were not independent witnesses. This fact was not denied by the appellant and other witnesses while appearing in the witness box before learned trial Court P.W. Safia also admitted that civil dispute of the property was pending, which shows that the witnesses had a motive to falsely implicate all the family members in order to pressurize them and restrain from pursuing the civil suit and their share of the property from the appellant. The august Supreme Court of Pakistan and this Court have repeatedly held that the interested witnesses cannot be relied upon unless their statements are corroborated through unimpeachable source of evidence, which is lacking in the present case.

10. It is also noticed that no X-Ray report was placed on the record and the injuries can only be treated as simple injuries while the respondents have been facing agony of trial since 1997 till today' for a period of 12 years with the allegation of causing simple injuries on the person of P.Ws. and section 452, P.P.C. had been deleted by the police during the investigation and opined that the respondents did not trespass into the house of complainant/appellant. Even otherwise both the parties were closely related to each other and provisions of section 452, P.P.C. were not attracted against them as they had access to the houses of each other without interference.

11. In cases of criminal nature the rule of estoppel cannot be applied against the accused and if the respondents/accused had not challenged the earlier judgment and the case was remanded on the Criminal Revision filed by the appellant/complainant, it cannot be said that the respondents/ accused who were subsequently convicted and sentenced to imprisonment could not challenge the same as the matter was reopened after the remand order. It was open to challenge the judgment of the learned trial Court by the parties as fresh cause of action arose. On this score alone this appeal cannot be accepted. The learned trial Court has given valid reasons for acquittal of the respondents/accused, which are borne out from the evidence on the record. The learned counsel for the appellant has failed to point out any misreading or non-reading of the material evidence on the part of the learned trial Court in arriving at wrong conclusions. It has been repeatedly held by the superior Courts that interference in appeal against acquittal is a rare phenomenon and reappraisal of evidence is not its purpose. The presumption of double innocence is attached to the acquitted accused and if two view can be formed from the evidence on record, the view favourable to the accused has to be preferred. The finding of acquittal is not found perverse, fanciful and against the settled principles of law, which is maintained. The case law cited by learned counsel for the appellant is not applicable to the facts and circumstances of the present case. Even otherwise it is settled law that each case has to be decided on its own merits. This appeal has no merits, which is dismissed accordingly. H.B.T./M-442/L Appeal dismissed.