PLJ 2009 SC 953

[Appellate Jurisdiction]

Present: Javed Iqbal, Ijaz-ul-Hassan &

Muhammad Qaim Jan Khan, JJ.

JEHANGIR--Petitioner

versus

AMINULLAH & others--Respondents

Crl. Petition No. 18-Q of 2006, decided on 18.5.2009.

(On appeal from the judgment dated 4.5.2006 passed by the High Court of Balochistan Quetta in Crl. Acq. No. 380/2005).

Criminal Procedure Code, 1898 (V of 1898)--

----S. 200--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Private complaint--Instead of registering case the police arrested him in connection with crime--Acquittal of accused--Assailed--Appreciated the entire evidence in accordance with law and settled norms of justice--Determination of--High Court upheld by assigning cogent and concrete reasoning--Conduct of accused was indicative of the fact that complaint lodged by him was not only an after thought but appears to be a counter blast--FIR was got lodged against the petitioner before the petitioner could file the complaint--Question of conviction does not arise--Statement had rightly been discarded by Courts below--Validity--Statements of prosecution witnesses were recorded after two months and such an inordinate delay would speak a volume about deliberation, concoction and false involvement of the respondents--Held: Impugned judgment did not suffer from any error of law and conclusion drawn by Courts below is strictly in accordance with law, settled norms of justice and well entrenched principles qua appreciation of evidence and accordingly no interference was called for--Petition being devoid of merit was dismissed. [Pp. 956 & 957] A & D

Constitution of Pakistan, 1973--

----Art. 185(3)--Criminal Procedure Code, (V of 1898)--S. 200--Leave to appeal--Private complaint--Limitations on power of Appellate Court to convert acquittal into a conviction--Validity--Appellate Court would not interfere with acquittal merely because on reappraisal of evidence--Held: No reasonable person would conceivably reach the same and was impossible then Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion--Further held: Appeal against acquittal Supreme Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused--Such approach is slightly different from that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to accused--Principle--Leave refused. [Pp. 956 & 957] B & C

PLD 1997 SC 569, PLD 1995 SC 1, PLD 1985 SC 11, PLD 1951 FC 107, PLD 1964 SC 426, PLD 1997 SC 408, PLD 1976 SC 452, PLD 1977 SC 413, 2001 SCMR 1474 & 2002 SCMR 261, fol.

Mr. Kamran Murtaza, ASC & Mr. S.A.M. Quadri, AOR for Petitioner.

Nemo for Respondents.

Date of hearing: 18.5.2009.

Order

Javed Iqbal, J.--This petition for leave to appeal preferred under Article 185(3) of the Constitution of Islamic Republic of Pakistan is directed against judgment dated 4.5.2006 passed by learned Division Bench of High Court of Balochistan, Quetta in Crl. Acq. Appeal No.380/2005 whereby respondents were acquitted.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "a private compliant under Section 200 Cr.P.C. was presented by the appellant before the Judicial Magistrate, Chaman alleging therein that on 10.11.2003 he on his way at Mehrban Road, Chaman when accused persons namely Amin Ullah, Hafiz Allah Muhammad and Haji Abdul Ahad while sitting in a car driven by Haji Abdul Ahad hit him due to which he fell down. He got up and enquired from the accused persons as to why he was hit by them whereupon accused persons armed with knives launched attack upon him. Resultantly he received injuries. He went to police Station, Chaman for lodging report but instead of registering case the police arrested him in connection with crime No.55 of 2003 lodged by the respondents".

3. After completion of necessary formalities challan was submitted in the Court of learned Sessions Judge, Pishin which culminated into the acquittal of respondents. Being aggrieved acquittal appeal was preferred by the petitioner in the High Court which has been dismissed vide judgment impugned, hence this petition.

4. Mr. Kamran Murtaza, learned ASC entered appearance on behalf of petitioner and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is also pointed out that conclusion as arrived at by the learned trial Court and upheld by the learned High Court is not inconsonance with the evidence led by the petitioner in support of accusation. It is urged with vehemence that the eye account has been discarded without assigning any reason and on this score alone the judgment impugned is liable to be set aside.

5. We have carefully examined the contentions as mentioned hereinabove in the light of relevant provisions of law and record of the case. We have minutely perused the evidence by keeping the defence version in juxtaposition and also perused the judgment dated 24.11.2005 passed by learned Sessions Judge, Pishin as well as the judgment impugned. After having gone through the entire record we are of the considered view that the learned trial court has appreciated the entire evidence in accordance with law and settled norms of justice, determination whereof has been upheld by the learned High Court by assigning cogent and concrete reasoning. It is worth mentioning that the conduct of the petitioner is indicative of the fact that the complaint lodged by him is not only an after thought but appears to be a counter blast against the respondents as Haji Abdul Ahad (Respondent No. 2) was injured by him. In this regard FIR was got lodged against the petitioner before the petitioner could file the complaint. The petitioner himself has admitted that he was arrested by police and also produced before the Judicial Magistrate. The learned ASC has time and again referred the statement of Noor Muhammad (CW-2) with the submission that it has been ignored by the courts below without any justification as Noor Muhammad (CW-2) has fully supported the complainant's version and stood firm to the test of cross-examination. The above contention of Mr. Kamran Murtaza, learned ASC on behalf of petitioner seems to be devoid of merit for the simple reason that the statement of Noor Muhammad (CW-2) does not appeal to logic and reason and besides that it is vague and sketchy on the basis whereof the question of conviction does not arise. By no stretch of imagination it can be imagined that he could have gone to his shop after seeing the incident and infliction of knife blows upon the petitioner who is his brother. In our considered view his statement has rightly been discarded by the courts below. It is worth mentioning that the statements of prosecution witnesses were recorded after two months and such an inordinate delay would speak a volume about deliberation, concoction and false involvement of the respondents. In such back drop how conviction could have been awarded to the respondents. It is to be noted that an order of acquittal only warrants interference when the conclusion arrived at is absurd, baseless, perverse, arbitrary or capricious.

6. It is well settled by now that "there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court 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 important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous". The view taken by this Court in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. The will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence: (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah (PLD 1997 SC 569), State v. Farman Hussain (PLD 1995 SC 1). Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Ahmad v. Crown (PLD 1951 FC 107), Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan (PLD 1964 SC 426), State v. Bashir (PLD 1997 SC 408, Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452), Shahzado v. State (PLD 1977 SC 413) and Farmanullah v. Qudeem Khan (2001 SCMR 1474), Khadim Hussain v. Manzoor Hussain Shah (2002 SCMR 261)".

7. In the light of what has been discussed hereinabove the judgment impugned did not suffer from any error of law and the conclusion drawn by the courts below is strictly in accordance with law, settled norms of justice and well entrenched principles qua appreciation of evidence and accordingly no interference is called for. The petition being devoid of merit is dismissed and leave refused.

(R.A.) Leave refused.