2006 SCMR 1217 (PLP)

CH. 1JAZ AHMAD, J.

Brief facts out of which the present petition arises are that respondents along with nine (9) acquitted co-accused were involved in a Case No.2 of 2001 on the complaint of Jan Muhammad petitioner No.3 which was registered at Police Station Lavies Police Station Chamman under section 324/337-A read with section 147, 148, 149 and 34 of P.P.C. The Investigating Agency investigated the case and found them guilty and the challan was submitted before the competent Court. Respondents were convicted and sentenced vide judgment dated 31-12-2002 by Sessions Judge/Special Judge, S.T.A. Pashin as under: Name of accused Under section Sentence Bakhat Muhammad 337-F(ii)/34, Punished to suffer R.I. and Allah Muhammad P.P.C. for 2 years each with Daman Rs.5,000 each or in default thereof to further suffer S.I. for six months each. -do- 337-F(iii)/34, P.P.C. To suffer R.I. 2 years each with daman Rs.10,000 each or in default thereof to further suffer S.I. for six months each. -do- 337-F(v)/34, P.P.C. To suffer R.I. 4 years each with Daman Rs.20,000 each or in default thereof to further suffer S.I. 8 months each. It is pertinent to mention here that nine (9) co-accused were acquitted by giving them benefit of doubt.

2. Respondents being aggrieved filed Criminal Appeal No.5 of 2003 in the High Court which was accepted and respondents were acquitted vide impugned judgment, dated 8-1-2004. Hence, the present petition.

3. Learned counsel for the petitioners submits that prosecution had proved the case against the respondents beyond any shadow of doubt and the learned trial Court was justified to convict them with cogent reasons whereas the learned High Court had erred to acquit the respondents by misreading and non-reading of record. He further urges that learned High Court had acquitted them merely on the ground that statement of witnesses of the prosecution were recorded after considerable delay and the prosecution witnesses failed to explain the delay which was not sufficient ground to acquit the respondents in view of law laid down by the superior Courts. In support of his contention, he relied upon Abdul Ali's case 2002 SCMR

203. He further urges that learned High Court had acquitted them without judicial application of mind as the reasoning of the learned High Court were based on surmises and conjunctures. The learned High Court had not scrutinized the evidence in its true perspective and reversed the conclusions of the trial Court without any justification. He further urges that learned High Court was influenced in view of the cross-case lodged by the accused party against the petitioners.

4. The learned Additional Advocate-General supported the judgment of the learned High Court and stated that learned High Court had acquitted the respondents after re-examining evidence on record and found that prosecution had failed to prove the case against the respondents.

5. We have given our due consideration to the contention of learned counsel of the parties and perused the record. It is pertinent to mention here that this is a petition for leave to appeal against the acquittal. Consideration for interference in an appeal/petition against acquittal and in an appeal/petition for conviction are altogether different. It is a well-settled principle that appreciation of evidence against acquittal is entirely different as compared to the appreciation of evidence to the appeal against conviction. There are several pronouncements of this Court qua the aforesaid proposition of law. See Muhammad Iqbal's case 1994 SCMR 1928 and Ghulam Sikandar's case PLD 1985 SC

11. The learned High Court had examined the case with him the parameters prescribed by this Court in the aforesaid judgments. Keeping in view the principle laid down by this Court in the aforesaid judgments and have come to the conclusion that evidence of the prosecution P.W.2 Muhammad Ibrahim, P.W.3 Allahuddin and P.W.5 Muhammad Aslam were variance in their statements and contradicting each other on material points. So much so the aforesaid witnesses had improved their statements before the trial Court to connect the respondents with the commission of offence. It is pertinent to mention here that statement of witnesses were not recorded promptly which were recorded after a considerable delay and the witnesses had failed to explain delay and this fact was considered by the learned High Court in its true perspective and found that their statements were not trustworthy as their statements created doubt in their veracity as the law laid down by this Court in Syed Saeed Muhammad Shah's case 1993 SCMR

550. The petitioners had suppressed the injuries qua the accused persons, therefore, learned High Court was justified to acquit the respondent coupled with the fact that the trial Court had acquitted nine (9) persons on the basis of the same evidence on which the trial Court had convicted the respondents. The learned High Court was justified to acquit the respondent keeping in view all the attending circumstances of the casein hand. We have gone through the record in the interest of justice and fairplay with the able assistance of the learned counsel of the parties and we find the reasons advanced by the learned High Court while giving benefit of doubt to the respondents are well-founded. It is an admitted fact that prosecution witnesses had made improvements in their statements to strength the prosecution case, therefore, learned High Court was justified to discard their evidence. See Amir Zaman's case 1985 SCMR 685. it is a settled principle of law that medical evidence is always considered as supporting C evidence. Injuries by themselves are not sufficient to identify the culprits. See Abdul Karim's case 1992 SCMR 1445, Mehmood Ahmad's case 1995 SCMR 127 and Muhammad Sharif's case 1995 SCMR

635. It is a settled principle of law that this Court is not a Court of appeal while exercising power under Article 185(3) of the Constitution, therefore, we are not expected to reappraisal of evidence except in exceptional circumstances. As mentioned above the petitioners' counsel has failed to bring the case within the category of exceptional cases. The judgment (Abdul Ali's case supra) relied by the counsel of petitioners is distinguished on facts and law.

6. In view of what has been discussed above, we do not find any E merit in this petition which is hereby dismissed. Leave to appeal is declined. M.H./M-85/SC??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.