2002 PLP 494 (YLR)

Sahibzada Farooq Ali for Appellant. Through this appeal Muhammad Anwar complainant-appellant has called in question the judgment dated 12-11-2001 rendered by the learned Sessions Judge, Muzaffargarh whereby respondents Nos.1 to 3 were acquitted of the charge in case F.I.R. No.46 registered at Police Station Khairpur Sadat, District Muazaffargarh on 13-5-2000 for offence under sections 320/324/148/ 149/109, P.P.C. In support 4 this appeal it has been argued by the learned counsel for the appellant that there was sufficient incriminatory evidence available on the record so as to warrant conviction of respondents Nos.1 to 3 and that the learned trial Court was not justified in recording their acquittal. In this context the learned counsel for the appellant has maintained that the evidence of Dr. Muhammad Saleem Akbar (P.W.6) had been given undue weight and importance by the learned trial Court for the purpose of concluding that the case against respondents Nos. 1 and 2 had not been proved beyond reasonable doubt.

2. After hearing- the learned counsel for the appellant and going through the record it has been noticed .by us that according to the prosecution's allegations respondent No.1 was saddled with the responsibility of raising a Lalkara and for having caused a fire-arm injury on the forehead of Faiz Khan deceased. However, the medical evidence squarely contradicted the said allegation inasmuch as injury No.2 found by Dr. Muhammad Saleem Akbar (P.W.6) on the dead body of Faiz Khan deceased was found to be an exit wound. We have further noticed that the allegation leveled by the prosecution against respondent No.2 was that he had fired two shots which had hit the right forearm of Faiz Khan deceased. In this context to the medical evidence did not support the ocular account inasmuch as Dr. Muhammad ,Saleem Akbar (P.W.6) had found that the injuries on the forearm of the deceased were merely abrasions which, according to the doctor, could have been a result of the deceased's fall on the ground. The allegation regarding abetment having been provided by respondent No.3 was not found by the learned trial Court to be reliable as the statement of Khuda Bakhsh (P.W.10) produced by the prosecution in that regard did not inspire confidence of the learned trial Court.

3. It has vehemently been argued by the learned counsel for the appellant that the doctor's statement ought not to have been believed and relied upon by the learned trial Court because in an appropriate case medical evidence belying the ocular account can be ignored. In this context the learned counsel-for the appellant has placed reliance upon the cases of Yaqoob Shah v. The State (PLD 1976 SC 53), Saeed Ullah Khan v. The State (1986 SCMR 1027) and Manzoor and others v. The State and others (1992 SCMR 2037). However, we have not been able to subscribe to this submission of the learned counsel for the appellant for the reason that the doctor produced before the learned trial Court was an independent witness who had never been declared to be hostile and the evidence coming from a prosecution witness of such independent character which enured to the benefit of the accused party could not have been ignored or the benefit accruing therefrom could not have been refused to the accused party in the absence of anything to suggest that the observations recorded and the opinions formed by the said doctor were based on motives which were otherwise than bona fide. The tirade launched by the learned counsel for the appellant against the doctor n this case has been found by us to be misplaced and, if we may say so, misconceived inasmuch as if injury No.2 on he dead body of Faiz Khan deceased described by the doctor to be an exit wound was in fact an entry wound then there ought to have been an exit wound of such an entry wound but there is none. The doctor conducting the post-mortem examination of the dead body had failed to and any bullet inside any part of the dead body of the deceased. Thus, the argument f the learned counsel for the appellant that he doctor had described injury No.2 as an exit wound on account of mala fide has not impressed us at all. The learned counsel for he appellant has also maintained that the angles of injuries Nos.1 and 2 were such hat injury No.2 could not be an exit wound of injury No. 1 and that the doctor had not recorded whether the said injuries had inverted or everted margins. We have unfortunately not been able to appreciate its submission of the learned counsel for the appellant either, for the simple reason that even if respondent No.1 had fired at he deceased from the front still upon an evasive action taken by the deceased by ending his head backwards he could have received injury No. 1 as straight shot which, due to bending of his head backwards by the deceased, could have made an and at the point noticed by the doctor described as injury No.2.

4. No serious argument has beet advanced by the learned counsel for the, appellant against the acquittal respondents Nos.2 and 3 recorded by the learned trial Court.

5. The learned counsel for the appellant has remained unable to point out any particular misreading or non-reading of relevant record on the part of the learned trial Court. The reasons advances the learned trial Court for recording the acquittal of respondents Nos. 1 to 3 have not en found by us to be arbitrary of perverse d the conclusions arrived at by it have not been found by us to be such that any reasonable Court could have arrived at the same upon a fair assessment of the evidence available on the record. In these circumstances, without prejudice to the prosecution's allegations against the convicts in this case, we have failed to find any occasion for interference with the impugned judgment of acquittal to the tent of respondents Nos. 1 to 3.

6. Before parting with this order we must refer to a curious and intriguing argument advanced by the learned counsel for the appellant. At the commencement of his arguments the learned counsel for the appellant had maintained before us that it is right of the present appellant to get his appeal admitted to regular hearing because after introduction of subsection (2-A) of section 417, Cr.P.C. the complainant is now possessed of a right of appeal before this Court. This argument of the learned counsel for the appellant unfortunately blurs a distinction between possessing a right of appeal and getting an appeal admitted to regular hearing. It is true that by virtue of the provisions of subsection (2-A) of section 417, Cr.P.C. the appellant has a right to prefer an appeal before this Court against the impugned judgment of acquittal passed by the learned trial Court but at the same time how can we ignore the provisions of section 421, Cr.P.C. which provide as follows:- "Summary dismissal of appeal.

(1) On receiving the petition and copy under section 419 or section 420, the Appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily: Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has a reasonable opportunity of being heard in support of the same. (2) Before dismissing an appeal under this section the Court may call for the record of the case, but shall not be bound to do so." A bare reading of section 421, Cr.P.C. amply demonstrates that no appellant is possessed of a right to get his appeal admitted to regular hearing and in an appropriate case this Court is possessed of the requisite jurisdiction to dismiss an appeal summarily even without calling for the record of the Court below. We have found the present case to be one such case end, therefore, this appeal is hereby dismissed summarily under section 421, Cr.P.C. N.H.Q./M-1030/L Appeal dismissed.