1985 PLP 1387 (MLD)

5. Muhammad Saeed A.S.I who conducted the investigation of the case appeared as P.W. 4 and stated inter alia that according to his investigation there were two eye-witnesses namely Asghar and Nisar other than the complainant. He admitted that in the inspection note prepared by him, he did not mentioned the Injures of the accused or of Abdul Satter complainant lie further stated that injured complainant and the accused were not, present on the spot and that the accused appeared before 'him at '3:00` p.m. He admitted that the complainant had stated that he came to, know, the 'name of the accused Maqsood later on.

6. Dr. Muhammad Nazir who medically examined Abdul Sattar complainant and Maqsood Ahmad accused appeared as P.W. 5 and stated that on the day of the occurrence at 5-30 p.m., he examined Maqsood Ahmad who complained of pain at .two places on his body. In cross examination, this 'witness stated that there was no apparent injury on the person of Maqsood Ahmed accused. On the close of the prosecution case respondent No 3 was examined under section 342 Cr.P.C. and he pleaded :not guilty to the charge.

7. Learned trial Court after through and elaborate appreciation of the evidence came to conclusion that the prosecution case-rested on the sole testimony of Abdul Sattar complainant who was an Interested witness and whose evidence was discrepant with his previous statement Exh P.E. Learned trial Court took particular note of the fact "that this witnesses stated in the F.I.R that he came to know of the name of the accused afterwards but in his evidence he, stated-that he knew him erstwhile. Learned trial Court also noticed that the traffic sergeant recorded the wrong parentage, and address of the accused which indicates that "the identity of the accused was not established upto 3.00 p.m.; on the day of occurrence. Learned trial Court also noticed that they prosecution has failed to established the cause of death because according to Death Certificate Exh. P.M. the cause of death was the failure of cardio-respiratory system and it was not proved by evidence " that the death was caused on account of the direct result of injuries suffered by the deceased during the accident......According to the 'medical examination of the deceased there was no, impact of the collision on the, person of the deceased and there was, no fatel injury on her vital parts"' : Evidence of Dr. Iftikhar Ahmad P.W. 3. in this behalf was not believed because according to the learned trial ,Court, he had improved his statement in Court Finding of the learned ,trial Court was that out three eye-witnesses. Nisar Ahmad P.W. was declared hostile, Asghar Ali was given up, and the evidence of Abdul Sattar complainant was full of discrepancies. Learned trial Court also, refused to take judicial notice of the pleadings in the civil Court (copies of which were produced by complainant s counsel 'at the' conclusion of the trial) wherein respondent No. 3 was alleged to have admitted that he was driving the vehicle at the time of occurrence. As regards the injuries on the person of respondent No. 3 learned trial court came to the conclusion that the according to the medical report the accused complained pains in the right chest front and left buttock. These pains cannot be attributed to the, impact of accident. Having discussed the evidence and earth with all the relevant aspects of the prosecution case in the manner aforementioned t filer was no independent corroboration of the evidence of P.W.2 and that in view of numerous doubts and discrepancies in the prosecution evidence benefit of which must go to the accused prosecution has miserably failed to establish its case, Respondent No. 3 was accordingly acquitted vide judgment dated 11-10-1980. State having refused to filed an appeal against the acquittal of respondent No. 3 petitioner who is the husband of the deceased Mst. Gul Bano preferred a revision petition. State represented through A.D.A did not support the revision petition. Learned Additional, Session, a , Judge re-appraised the entire evidence and found that out of three eye-witnesses. Nisar Ahmed did not support the, prosecution case: and was declared hostile. Asghar the other eye-witness was not, produced by the prosecution as having been won over. Prosecution was, therefore, left only with testimony of Abdul Sattar who was rightly held to be an interested witness and since, he was, himself involved in the accident, his position was not better than that of an accomplice. It was further found that this witness also suffered injuries and definitely lost a bit of senses. This accident took piece at 5.15 a.m. and he lodged his statement at about 8 a.m. at the, spot; thus showing that he found brae for consultation. The, perusal of his statement definitely needed to be corroborated and l find that the there is no corroboration son, record to his testimony on the ocular side. As regards the report of the traffic sergeant (Exh. P.K.) incriminating respondent No. 3 as responsible for the accident, learned Additional Sessions Judge held chat this was only an opinion of a police officer. With these findings, learned Additional Session Judge dismissed the petitioner's revision. Hence this petition.

9. Learned counsel for the petitioner assailed the impugned judgments on the sole ground that the learned courts below took an unreasonable view of the evidence. Learned counsel relied upon Mrs. Farhat Jabeen Additional Judge Lahore and other P.L.D. 1981 Lah. 588 for the proposition that a judgment based on unreasonable view of evidence can be interfered with in constitutional` jurisdiction of this Court. In the case cited by the learned counsel, it was held that this Court in writ jurisdiction can interfere even with discretionary orders "in case of finding being based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction arbitrary exercise of power and unreasonable view of evidence." There is no cavil with the proposition canvassed by the learned counsel for the petitioner but the question is whether in the instant case, view of the evidence taken by the learned Courts below can be said to be unreasonable. Learned counsel for the petitioner submitted that Abdul Satter P.W. 2 who was driving the car in which the deceased lady was sitting was himself injured in the accident and as such his testimony did not require any further corroboration. I am not impressed with the submission made by the learned counsel. Learned trial Court as also the learned Additional Sessions Judge gave good reasons for holding that Abdul Sattar complainant was an interested witness whose testimony could not be accepted without independent corroboration. The learned trial Magistrate particularly pointed out that this witness stated in the F. I. R. that he came to know the name of respondent No. 3 after the occurrence but while appearing as a witness in Court he stated that he had known him before. Taking this material discrepancy together with other circumstances into consideration, learned trial Court came to the conclusion that the evidence of this witness required corroboration. Finding of the learned trial Court was affirmed by the learned Additional Sessions Judge who held that since this witness was himself involved in the accident, his position was no better than that of an accomplice. It was further found by the learned Additional Sessions Judge that the accident took place at 5.15 a.m. and this witness longed the report at about 8.00 a.m. at the spot which shows that he found time for consultation. Thus the finding of the learned Courts below that the evidence of Abdul Sattar P.W. required corroboration is based on proper appreciation of the evidence on the record and supported by sound reasons.

10. Learned counsel next contended even if any corroboration of the evidence of P.W. was needed, the same was furnished by the medical evidence to the effect that respondent No. 3 had also suffered injuries in the accident. This aspect of the matter was also duly taken note of by the learned trial Magistrate and he came to the conclusion that according to the medical report, the accused complained of pain in the right chest and left buttock which could not be called injuries nor could the same be said to be the result of the accident. This, in my view, was the correct appreciation of the medical evidence and that being so, the so-called injuries on the person of respondent No. 3 could hardly be of any corroborative value.

11. As discussed above, learned Courts below recorded their findings after elaborate appraisal of all the evidence on the record. Learned counsel for the petitioner was unable to point gut any misreading of the evidence or non-consideration of material evidence. His only contention that the learned Courts below took unreasb4able view of the evidence, as held above, is without any substance. Learned trial Court after thorough appraisal of the entire evidence on the record held that the prosecution failed to establish its case and, therefore, acquitted respondent No.

3. Judgment of acquittal was not appealed against by the State. Revision petition moved by the petitioner was also not supported by the State and was dismissed by the learned Additional Sessions Judge after re-considering and re-appraising the prosecution evidence. In these circumstances, findings recorded by the two learned Courts of competent jurisdiction cannot be interfered with in constitutional jurisdiction. Even if it be possible to come to a conclusion different from that recorded by the Courts of competent jurisdiction, that is no reason for interference with the impugned judgments because this Court in its writ jurisdiction does no act as an appellate Court.

12. Apart from what has been said above, order of the learned Additional Sessions Judge passed in exercise of his revisional jurisdiction is not open to review in writ jurisdiction. It was so held in Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S C

522. Relevant observations of their Lordships of the Supreme Court are as follows:- "After the enforcement of revisional power on the Sessions Judges, ail revisions against judgments of acquittal recorded by Magistrate lie before them, i.e. before Sessions Judges, while revisions against judgments of acquittal by any other 'inferior criminal Court' would still lie before the High Court. The reasons for introducing this amendment and curtailing the jurisdiction of the High Court was obviously that each High Court had become clogged with revision petitions against orders of hundreds of Magistrates throughout the respective province and speedy disposal thereof was not possible ........ But it is noticed with some dismay that persons dissatisfied with the judgments of the final Courts under the normal law have taken to challenging them through writ petitions under Article 199 of the Constitution, thereby circumventing the law and defeating the obvious intention of the Legislature." It was further held in the precedent case that:- "The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect or is not one at which the High Court would have arrived, does not render the decision without jurisdiction." The aforementioned view was reaffirmed in Faqir Muhammad v. Muhammad Ismail P L D 1983 S C

453. Upshot of the above discussions that this petition merits dismissal and the same is hereby dismissed but with no order as to costs in the circumstances of the case. S.A. Writ dismissed.