CH. IJAZ AHMAD, J.---We intend to decide the above captioned petitions by one consolidated order having similar facts arising out of the same impugned judgment of the High Court of Balochistan.
2. The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that respondents Nos.1 and 2 were involved in a case F.I.R. No,152 of 2000 along with their deceased co-accused Muhammad Hashim (father of the respondents Nos.1 and 2) which was registered at police station Qaidabad under sections 337- K,338-A(ii), 452 and 34 of P.P.C. On the complaint of Nasir Ali P.W.4 on 12-9-2000. The investigating agency investigated the matter, found the respondent guilty and submitted challan before the competent court. Respondents were convicted and sentenced by Sessions judge (Ad hoc) Quetta as under:-- Name of accused Under sectionSentence
(1) Sajjad Hussain 337-K, P.P.C. Sentence to 2 years' imprisonment Each Daman of Rs.10,000 each
(2) Ijaz Hussain payable to the complainant. It is pertinent to mentioned here that benefit of section 382-B, Cr.P.C. was extended and accused- respondents were acquitted under section 316, P.P.C.
3. Respondents being aggrieved filed appeal in the High Court of Balochistan under section 410 Cr.
P.C. Petitioner being aggrieved filed revision petition under section 435 read with section 439 Cr. P.
C. In the High Court for enhancement of the sentence of the respondents, whereas the petitioner had also filed criminal appeal under section 417(2), Cr.P.C. To the extent of acquittal of the respondents under section 316, P.P.C. The learned High Court had accepted the appeal of the respondents vide impugned judgment dated 25-2-2004. Consequently respondents were acquitted whereas the criminal appeal and criminal revision filed by the petitioner were dismissed.
Hence, the present petitions.
4. Contents of F.I.R. Reveal that at mid night of 9/10 of August, 2000 all the three accused in a white car No,DGB/8282 went at the house of the complainant, entered in the house and attacked on the complainant and injured him with fists and kicks. His wife came in between to save her husband when she was also beaten, which resulted miscarriage/ abortion. They also beaten the daughter of complainant.
5. The learned counsel of the petitioner submits that learned High Court had erred in law. To accept the appeal of the respondents on surmises and conjunctures without judicial application of mind and had reversed the findings of the trial court which was based on sound reasons. He further urges that prosecution had proved the case against the respondents beyond any shadow of doubt. The learned High Court had erred in law to discard 'the veracity of the ocular version of the prosecution which was produced by the prosecution through the natural witnesses whose presence was not doubted as the respondents had attacked and injured them in the house of the complainant. He further urges that respondents had beaten Mst. Hakima due to which she suffered miscarriage of three months pregnancy. The learned High Court had erred in law to discard the ultrasound and other documentary evidence included opinion of the doctor qua her pregnancy. He further urges that learned High Court was not justified to discard the statement of eye-witnesses merely on the ground that witnesses are inter se related and interested. He further urges that learned High Court had erred in law to accept the appeal of the respondents on the ground that prosecution failed to produce neighbourers to prove the case against the respondents as the incident took place in broad day light. He further urges that non-production of the neighbourers is not a ground to discard the natural injured eye-witnesses.
6. The learned counsel of the respondent had acquitted the respondents after re-appraisal of evidence on record with sound reasons and had come to its own conclusion in view of evidence on record and discussed each and every piece of evidence on record.
7. The learned Additional Advocate General has also supported the impugned judgment and submits that learned counsel of the petitioner has failed to point out any infirmity or illegality in the impugned judgment.
8. We have given our due consideration to the contentions of learned counsel of the parties and perused the record. It is pertinent to mention here that all the eye-witnesses are closely related with each other. The relationship of the eye-witnesses are as follows:--
(i) P.W.2 Mst. Hakima is wife of the complainant P.W.4.
(ii) P.W.3 Mst. Nadia is daughter of the complainant of P.W.4.
9. It is an admitted fact that prior to the instant incident, civil litigation was going on between the parties. Therefore, eye-witnesses are interested and inimical qua the respondents/accused persons. It is a settled principle of law that evidence of inimical witnesses cannot be accepted without independent corroboration. See Ghulam Sikandar's case (PLD 1985 SC 11). The learned High Court had given finding of fact against the petitioner after proper appreciation of evidence with ocular testimony directly in conflict with medical evidence. It is a settled principle of law that in case of conflict between the ocular and medical evidence, then medical evidence is to be preferred. See Bagh Ali's case (1983 SCM R 1292) and Muhammad Aslam's case (1969 SCMR 462). It is pertinent to mention here that statement of eye-witnesses in respect of nature and seat of injuries could not connect the respondents as their statements are not in consonance with medical evidence and this finding was duly considered/noted by the High Court after re-appraisal of eyewitnesses and the medical evidence in minutely. The learned High Court had also with cogent reasons given findings of fact that prosecution had failed to prove the allegations of miscarriage. It is pertinent to mention here that as per doctor &gynecologist that there was no bleeding.
Ultrasound carried on the day of incident was also silent about the pregnancy report Ex. PI dated 11th August, 2000 was not considered on the ground that the person who had issued said report or conducted test was not produced in the court coupled with the fact that no independent witness was produced by the prosecution in spite of the fact that incident had taken place in the house of the complainant. It is pertinent to mention here that incident took place on 9/10 of August, 2000 but the F.I.R. Was lodged by the complainant Nasir Ali against the respondents and their father after one month and this fact was also noted and considered by the learned High Court in the impugned judgment and in case all the sets of evidence are put in a juxtaposition then it brings the case of the prosecution in the area of doubt. It is a settled principle of law that benefit of doubt must be given to the accused. It is a settled principle of law that there are different principles and parameters prescribed by this court qua the re-appraisal of evidence with regard to the petitions/appeals of acquittal/conviction. See Ghulam Sakindar's case (PLD 1985 SC 11). It is a settled principle of law that this court cannot reappraise the evidence while exercising power under Article 185 (3) of the Constitution unless and until the learned High Court had committed perversity or arbitrary while re-appraisal of evidence on record and in the very exceptional cases. This case does not fall in the category of exceptional cases.
10. We have examined the record with the assistance of the learned counsel of the parties and do not find any illegality or infirmity in the impugned judgment. The petition being devoid of any merit is hereby dismissed. Leave to appeal is declined.