2004 PLP 1116 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Leave to appeal is sought against the judgment, dated 5-11-2001 passed by a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby petition for Special Leave to Appeal No. 34 of 2001 filed by the petitioner against the acquittal of respondents by the learned Sessions Judge, Khanewal, vide his judgment, dated 10-7-2001 was dismissed in limine. Learned counsel stated that the petitioner's Petition for Special Leave to Appeal against the judgment of the trial Court whereby the respondents were acquitted of the charge under sections 302/324/148/149, P.P.C. was dismissed by the High Court in limine without appreciating the evidence produced by the prosecution at the trial. He further stated that case of the petitioner in which he has been convicted was pending before the High Court, therefore, it would have been appropriate if the High Court had decided both the matters together in view of judgment of this Court in the case of Wazir Moral alias Wazid Ali and 13 others v. The State and another 1970 S C M R

256. We have considered the contentions raised by the learned counsel and have gone through the impugned judgment carefully. It is to be noted that the petitioner filed a Petition for Special Leave to Appeal under section 417(2), Cr.P.C. in the High Court for grant of special leave narrating complete facts and circumstances of the case and the learned Judges of the Division Bench, after having taken into consideration the judgment of the learned Sessions Judge, Khanewal, dated 10-7-2001 against which special leave was sought, as well as other material produced by the petitioner, concluded that do case for leave has been made out. We are not inclined to agree with the learned counsel that the evidence produced by the prosecution was not taken into consideration because it is evident from the impugned order that the ocular evidence as well as the medical evidence was considered and thereafter opinion was formed by the High Court that the accused persons have earned innocence on merits, therefore, no case is made out for grant of leave. As far as the second point raised by the learned counsel is concerned, in this behalf it may be noted that in the judgment relied upon by the learned counsel, it has not been held that both the cross cases shall be heard together, rather the observation is that a Court, has to make independent assessment of evidence of each case. In our opinion, in present matter as both the cases proceeded separately and learned Sessions Judge on having made independent assessment of evidence in each case, concluded through judgment, dated 10-7-2001 that guilt is not proved against the respondents, whereas reportedly in case in which B Muhammad Akbar petitioner has been convicted, it has been concluded that he was guilty of the offence charged against him. Therefore, in no manner, the principle laid down in the judgment relied upon by the learned counsel has been violated. Thus for the foregoing reasons we see no force in instant petition and the same is dismissed. N.H.Q./M-595/S Leave refused.