2007 PLP 1549 (SCMR)

CH. IJAZ AHMED, J.

We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment of the Lahore" High Court Rawalpindi Bench, Rawalpindi, dated 25-4-2000. Necessary facts out of which the aforesaid appeals arise are that F.I.R. No.105 dated 28-6-1994 under sections 324/302/34, P.P,C, at Police Station Saddar Chakwai was recorded by Khadim Hussain, A.S.-I. an the statement of Muhammad Afzal son of Muhammad Shafi, P.W.10 against Muhammad Akram,. Zafar Iqbal and Munsif Khan on the allegation of having, in furtherance of their common intention committed Qatl-i-Amd of Saqlain Murtaza and murderous assault on Muhammad Afzal and Muhammad Nazeer Sultan P.Ws. at about 6-15 a.m. on 28-6-1994 at Mauza Dhakoo within the jurisdiction of Police Station Saddar Chakwal. Investigating agency investigated the matter and challan was submitted against all the accused mentioned in the said F.LR, namely Abdur Rashid, Muhammad Akram, Zafar Iqbal and Munsif Khan. Learned Sessions Judge, Chakwal vide its judgment, dated 13-3-1995 convicted and sentenced aforesaid accused as under: -- Name of accused Under section Sentence Muhammad Akram and Zafar Iqbal 302(b), P.P.C. Imprisonment for life as Ta'zir each. Compensation under section 544-A, Rs.50,000 each to the legal heirs of Saqlain Murtaza, deceased. Zafar Iqbal and Munsif Khan 337-F(ii) One year's R.I. each Rs.2,000 as Daman each. Munsif Khan was also convicted under section 337(f)(i), P.P.C. and sentenced 6 months'. R.I. Rs.500 as Daman. Sentences shall run concurrently with benefit of section 382-B, Cr.P.C. It is pertinent to mention here that aforesaid accused were acquitted qua other charges by giving them benefit of doubt whereas Abdur Rashid was acquitted by giving him benefit of doubt.

2. During the pendency of the appeal Muhammad Akram has served the sentence, consequently he was released therefore, Criminal Appeal No.499 of 2000 has become infructuous.

3. Learned counsel of the appellant submits that learned trial Court had erred in law to award life imprisonment to Muhammad Akram and Zafar Iqbal instead of awarding capital punishment to them. He further maintains that learned High Court after reappraisal of evidence had found Muhammad Akram guilty of Qatl-i-Amd of Saqlain Murtaza deceased and without any justification awarded alternative punishment of life imprisonment merely on the ground of weak motive of the occurrence in question and keeping in view peculiar feature of the case in hand. He further maintains that learned High Court had also erred in law not to award capital punishment to Muhammad Akram respondent and also erred in law to acquit Zafar Iqbal respondent merely on surmises and conjectures that in the light of the size of injury possibility cannot be ruled out that second injury was also inflicted by Muhammad Akram respondent to the deceased. The same is not in consonance with the evidence on record. The prosecution has specifically attributed two injuries to the respondent Muhammad Akram and Zafar Iqbal which were proved by the prosecution from the statement of the eye-witnesses which were corroborated by medical evidence. He further maintains that respondents acted with pre-meditation and virtually caused death of Saglain Murtaza by causing him 5 incised wounds, all of them on the backside of the chest, buttock and shoulder per se reveals that the accused acted in furtherance of their common intention.

4. Learned counsel for the respondents submits that Munsif Khan was riot awarded punishment under section 302(b), P.P.C. and was awarded punishment under section 337(1)(ii). The complainant has not challenged his acquittal under section 302, P.P.C. before the learned High Court. Therefore, learned High Court was justified to dismiss the revision petition of the appellant qua Munsif Khan respondent No.3. The learned High Court had acquitted Zafar Iqbal, respondent No.2 with cogent reasons by reappraisal of the evidence on record and had taken a lot of pain to reappraisal the size of injuries attributed to the respondents which were inflicted by them to the deceased after examining the medical evidence on record along with oral evidence. He further maintains that prosecution had suppressed injuries received by respondent No.3 Munsif Khan and Muhammad Akram, respondent No.1. He further maintains that this fact was considered by the learned High Court while acquitting Zafar Iqbal that he was not present at the place of occurrence at the time of incident as he did not receive any injury. Muhammad Rashid, acquitted co-accused also did not receive any injury at the time of occurrence and he was also found innocent by the S.S.P. Consequently he was acquitted by the trial Court. He further urges that respondent had oaken a specific defence version as is evident from reply of question No.13 of Muhammad Akratn and Munsif Khan in reply of question No.10 wherein they had categorically stated that Saqlain Murtaza deceased injured Munsif Khan respondent with his Chhuri which Munsif Khan snatched from him. Nazir Sultan P.W. struck Munsif Khan with the knuckles whereas Saqlain Murtaza, deceased, took the Chhuri of Muhammad Afzal, complainant, P.W. and attacked him with the same. Grappling ensued between the parties. Munsif Khan injured Saqlain Murtaza deceased in self-defence. Zafar Iqbal and Abdul Rashid acquitted co-accused were not present at the spot. Defence could cross-examine P.W.10 Muhammad Afzal in terms of reply of question No.13 mentioned above and this fact was not considered by the Courts below in its true perspective while convicting Muhammad Akram respondent and at the time of acquitting Zafar Iqbal, respondent.

5. We have considered the submissions of learned counsel of the parties anal have perused the record. As mentioned above appeal of convict Muhammad Akram has become infructuous as he has served out the sentence during the pendency of the appeal. It is an admitted fact that prosecution has suppressed the injuries on the accused as evident from the .contents of the F.I.R. It is a settled law that there are different parameters and circumstances for interference in an appeal/petition against acquittal and in appeal/petition for conviction as laid down by this Court in Muhammad Iqbal's case 1994 SCMR 1928. The relevant observation is as follows:-- "(i) that with the acquittal, the presumption of the innocence of the accused become double; one initial, that till found guilty he is innocent, and two., that after his trial a Court below has confirmed the assumption of innocence; (ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion; (iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere; (iv) that unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere; and (v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose." The aforesaid proposition of law is also supported as law laid down in Ghulam Sikandar's case PLD 1985 SC

11. The learned High Court as well as trial Court were justified to award life imprisonment to Muhammad Akram, respondent, keeping in view the circumstances of C the case in hand. The impugned judgment to the extent of respondent is in consonance with the law laid down by this Court in various pronouncements. See Ansar Ahmed Khan Bargi's case 1993 SCMR 1660. It is pertinent to mention here that respondent No.3 inflicted only one injury to the deceased through weapon of offence (Chhuri) and did not repeat, therefore, all these factors cumulatively make out case for mitigation of sentence and lesser sentence of lire imprisonment would meet ends of justice as law laid down by this Court in Muhammad Arshad's case PLD 1996 SC 122 and Muhammad Akram's case 1999 SCMR

52. It is a settled law that as in the case for enhancement of sentence where it depends upon findings of tact or reversal thereof, ordinarily findings of fact would not be reversed. As in the case for enhancement to death penalty (or for setting aside acquittal) unless amongst others there is either misreading or non-reading of evidence on a very substantial point and or there has been a miscarriage of justice ordinarily there is no interference, One test to determine; whether, there has been miscarriage of justice would be to answer a further question; whether, the view taken by the lower Court on question of acquittal or reduction of sentences impossible? The reasons given by the learned High Court in extending the benefit of doubt to Zafar Iqbal are not irrelevant and extraneous to the record.

6. We have re-examined the evidence on record and did not find any miscarriage of justice qua the acquittal of Zafar Iqbal coupled with the other circumstance of the case wherein their co-accused Rashid Ahmed was acquitted by the trial Court on the basis of some evidence. The learned counsel of appellant failed to bring the case within the four corners of law .laid down by this Court in the aforesaid cases of Muhammad Iqbal and Ghulam Sikandar even otherwise we do not find any infirmity or illegality in the impugned judgment. The learned High Court has rightly acquitted Zafar Iqbal accused after re-examining evidence on record. It is proper to mention here that the prosecution has failed to discharge his burden in the manner laid down by this Court in the case of Muhammad Luqman v. State PLD 1970 SC 10 to the extent of Zafar Iqbal respondent. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would H not connect the accused with the commission of the crime. There are various judgments of this Court. See Machia's case PLD 1976 SC 695 and Muhammad Iqbal's case 1994 SCMR 1928. It is a settled law that medical evidence is not a corroborative piece of evidence which is always supporting evidence and medical evidence does not disclose who has inflicted injury to the deceased as law laid down by this. Court in Machin (supra). The circumstances of the case in hand are justified to acquit Zafar Iqbal whose case was to some extent at par with his I acquitted co-accused Rashid Ahmed. As mentioned above the learned High Court while upholding the conviction of Muhammad. Akram respondent, therefore, it would meet the ends of justice. We are of the opinion that the power to enhance sentences should be sparingly exercised by this Court and sentences should be enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that this Court, had it been trying the case, might have imposed the capital sentences is not a sufficient reason for enhancement or conviction coupled with the fact that defence had taken a defence plea at a relevant time and this tact was not considered by both the Courts below at the time of awarding conviction to respondent Zafar Iqbal. We have considered this aspect of the case and found acquittal of respondent Zai'ar Iqbal was justified as observed by us in the preceding paragraphs. Indeed the considerations which influence the decision of the High Court in acquittal of Zafar Iqbal are well-grounded and in the background of the case discretion exercised by the learned Judges is in conformity with the accepted principles of criminal justice;

7. For what has, been discussed above, the appeal has no merit and the same is dismissed. N.H.Q./G-22/SC Appeals dismissed.