' HAMID ALI MIRZA, J.--- These two Criminal Petitions for Leave to Appeal No,546 of 2003 (Muhammad Din and another v. The State and another) and Criminal Petition No,54 of 2004 (Sheikh Abdul Ghafoor v. The State and others) are directed against the common judgment, dated 5-12-2003 passed by learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, when the former petition is against their conviction whereas the latter petition is for enhancement of sentence against the respondents/convicts.
2. Brief facts of the case are that on 30-12-1992 respondent Sheikh Abdul Ghafoor made written complaint which was incorporated in F.I.R. Book as F.I.R. No,217, dated 30-12-1992, registered at P.S. Saddar, Jhelum, stating therein that on 29-12-1992 at about 5-00 p.m. He was present in the house when the outer gate was being knocked with full force on which the complainant came out where he saw the petitioners (convicts) viz. Sagheer and Muhammad Din, standing with Dandas who forcibly entered into the house and beat him with fists and Dandas when Sagheer inflicted a Danda blow hitting his head whereas another person inflicted a Danda blow on his temple, consequently he fell down. People came when the petitioners/convicts fled away by raising threats. The said occurrence was witnessed by Muhammad Sharif and Talat. Motive was stated to be that about 3/4 days prior to the incident petitioners/convicts raised construction which was stopped by the complainant when they threatened him. On the written complaint a case under sections 452, 337-F and 34, P.P.C. Was registered against the petitioners/convicts and challan was submitted before the competent concerned Magistrate who, after recording the prosecution evidence of P.Ws.
Muhammad Sharif, Talat Mahmood, Abdul Qayyum, Ghulam Rasool, Dr. Shaukat Mahmood, Abdul Rauf, Abdul Ghafoor, complainant, and Dr. Muhammad Afzal Bhatti and after examining the petitioners/convicts under section 342, Cr.P.C. Who did not examine themselves under section 340(2), Cr.P.C. And did not lead evidence in defence, after hearing the counsel for the parties, acquitted the petitioners/convicts holding that the petitioners convicts have faced agony of trial for the last nine years which was sufficient punishment for them, therefore, giving benefit of doubt and considering the same as mitigating circumstances, the petitioners/ convicts were acquitted.
The respondent/complainant preferred appeal under section 417(2-A), Cr.P.C. Before the High Court of the petitioners/convicts vide judgment, dated 31-3-2001 passed by Magistrate Section 30, Jhelum, which appeal was accepted by learned Judge in Chambers as per impugned judgment hence this petition.
3. We have heard learned counsel for the parties in both petitions and perused the record minutely.
4. Contention of learned counsel for the petitioner/convicts is that learned Judge in Chambers has erred in law and facts holding the above convicts to be guilty of offence under section 337-A(i), P.P.C. Considering that there was no reliable evidence available on record connecting the petitioners/convicts with the commission of alleged offence and further that credence should have been accorded to the finding of trial Court which exonerated the petitioners from the charged offences considering also that the scope for dealing with appeal against acquittal was different from the appeal against conviction when in case of appeal against acquittal, presumption of double innocence in favor of the accused is attached to the acquittal order. He has placed reliance upon Khadim Hussain v. Manzoor Hussain 2002 SCM R 261 and Munawar Shah v. Liaqat 2002 SCM R 713.
5. Learned counsel for the respondent/complainant submitted that the judgment of conviction passed by learned Judge in Chambers is based on proper appreciation of evidence on record and law except that the learned Judge in Chambers has taken lenient view in the award of sentence so also erred in exonerating/acquitting petitioners/convicts from the charged offences under section 452, P.P.C. Which in view of evidence on record stood proved.
6. We do not find merit and substance in the contentions of learned counsel for both the parties.
7. Learned Judge in Chambers has properly assessed and scrutinized the evidence on record.
Admittedly the testimony of complainant Abdul Ghafoor with regard to causing of injuries on his person by the respondents/convicts is fully corroborated by medical evidence of P.W. Dr. Shaukat Mahmood who opined that the complainant had sustained two lacerated wound one on the left cheek and the other on the occipital area and both injuries were caused by blunt weapon. Even if in case testimony of P.Ws. Muhammad Sharif and Talat Mahmood is discarded then also the testimony of complainant having been corroborated by medical evidence, the charge against the petitioners Muhammad Din and Sagheer Ahmad for having caused injuries on the person of complainant, would stand proved beyond reasonable doubt considering also that the convicts did not attribute an animus against the complainant for falsely implicating them. It may be borne in mind that the testimony of Talat Mehmood also cannot be discarded merely on the ground that he was related to the complainant and branded as an interested witness. Mere relationship would not be sufficient to label him to be an interested witness unless animus is shown against the petitioners/convicts. Even if we discard the testimony of P.W. Muhammad Sharif, the remaining evidence on record is confidence inspiring which proved the guilt of the petitioners/convicts beyond reasonable doubt. We find that the judgment of trial Court suffered from misreading and non-reading of evidence on record and misappreciation of law, therefore, the learned Judge in Chambers was legally justified in reversing the judgment of acquittal as finding of acquittal was perverse and based on misreading of evidence on record, so also misappreciation and misapplication of law which resulted in the miscarriage of justice. Mere fact that one of the petitioners was an aged person was itself no ground for acquittal, so also agony of protracted trial could not be ground for acquittal, which could only be mitigating circumstances for awarding lesser sentence. Case of the prosecution showed that the incident had occurred and the same was witnessed by the P.Ws. Examined which ocular version was fully corroborated by medical evidence to the extent of injuries on the person of complainant, so also locale and the nature of injuries having been caused with blunt weapon.
8. We find that no exception could be taken to the finding of guilt arrived at by the learned Judge in Chambers considering also that no legal or factual infirmity is found with the impugned judgment.
We also find no merit in the petition filed by the complainant for enhancement of sentence against the petitioner/convict and to award sentence under section 452, P.P.C. For which offence, there was no sufficient evidence to prove the same beyond reasonable doubt on record, therefore, the petitioners/convicts were rightly acquitted from the charge for offence under section 452, P.P.C. We, therefore find no merit in both petitions, consequently decline leave to appeal as such both petitions are dismissed maintaining the conviction and sentence passed by learned Judge in Chambers against the petitioners/convicts. There is no cavil with the principles laid down in the above cited cases but the facts of the same are quite different and distinguishable to the facts of the instant case, therefore, of no assistance to the case of petitioners/ convicts.
9. Surety furnished and bail bond executed by the petitioner Muhammad Din stand discharged on his surrender before the trial Court. The trial Court to issue non-bailable warrants against the petitioner Muhammad Din who be sent to jail to serve out the remaining sentence. accordingly.