P L D 1990 Supreme Court 1058 (PLP)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑Leave to appeal has been sought by the complainant side; against the acceptance by the High Court of the Criminal Appeal filed by Abdul Jabbar respondent No. 2 as a result whereof his conviction and sentence of life imprisonment as well as fine of Rs. 10,000 were set aside and he was acquitted. The prosecution case as summarised in the petition is that Muhammad Akram deceased and his father Abdur Rehman petitioner boarded a bus from Chishtian to reach their village and alighted at the Adda Mari Shauq Shah, where Muhammad Sarwar PW hired a tonga and boarded the same in order to go to their village. When they had gone one acre ahead of wheat godowns in the area of Chak No. 8‑G at about 3‑30 p.m. all of a sudden Abdul Latif and Shari accused being armed with guns still upon a motor‑cycle, came in front of the tonga and stopped the same. 1n the meanwhile Muhammad Ayub and Abdul Jabbar accused being armed with guns also reached there upon a motor‑cycle. Abdul Jabbar accused fired the first shot on Muhammad Akram which hit him on the right side of his chest. Muhammad Akram after receiving the gun shot injury fell into the lap of his father Adbur Rehman and died in the tonga. The dead body of the deceased Muhammad Akram was then taken by his father and other P.Ws. to the police station. The motive for the alleged occurrence was based on the enmity between the parties which also included previous litigation. Learned counsel while attacking the acquittal of the accused/respondent contended that the prosecution having examined the eye‑witnesses mentioned in the F.I.R. and having given up the tonga driver as won over witness, it was not proper for the trial Court to have summoned the said tonga driver as Court -witness. He further criticised the statement of the Court‑witness to the effect that although the occurrence took place as stated by the other eye‑witnesses, he had seen the attack by persons who had muffled their faces. This, according to the learned counsel, was due to the concession which the Court‑witness showed to the accused persons and that is why he had been given up by the prosecution as its own witness. To conclude his argument learned counsel urged that the version given by the Court‑witness should not have been preferred over the eye‑witnesses examined by the petitioner. After hearing the learned counsel we are satisfied that the conditions laid down by this Court from time to time regarding setting aside of acquittal , particularly in a murder case, have not been satisfied in this matter. There is neither any misreading or non‑reading of evidence of substantial nature nor there has been, as a result of such like infirmity, gross miscarriage of justice. Regarding the respective worth of the two types of evidence in this case one coming from a Court‑witness and the other from the prosecution witnesses; which one should have been preferred, is a matter essentially of appreciation of evidence which otherwise is not called for in this case. Even if the element of preference of one witness over the other is excluded and even if it be assumed that the Court‑witness might have withheld some truth, the fact remains that the prosecution case in its very bases had become doubtful. No justification has been made out for interference by this Court so as to upset the order of acquittal. Leave to appeal, accordingly, is refused. M.B.A./A‑802/S , Leave refused.