' JAVED IQBAL, J.--- This petition for leave to appeal is directed against judgment, dated 3-11-2004 whereby the criminal appeal preferred on behalf of Muhammad Arif and others (respondents) has been accepted and the judgment of learned Special Judge (STA), Court, Mianwali, dated 22-11- 2000 was set aside whereby Muhammad Arif was convicted under section 302(b), P.P.C. And sentenced to death. Muhammad Saleem and Muhammad Nazir were convicted under section 302(b), P.P.C. And sentenced to life imprisonment and moreso they were also convicted under section 324/34, P.P.C. And sentenced to suffer R.I. For five years and to pay fine of Rs,10,000 each and in case of default to undergo one year's R.I. Each.
2. Briefly stated facts of the case as enumerated in the judgment impugned are to the effect "that on 4-6-1997 at evening time, Nazir Ahmad, complainant went to the Dera of Muhammad Ramzan and. Muhammad Amir his cousins in connection with an urgent work. There, the complainant came to know that his cousin Muhammad Ramzan along with his mother had gone to Lahore.
Muhammad Amir, the other cousin of the complainant, asked the complainant to stay with him for a night because the complainant had got late. On the asking of Muhammad Amir, the complainant stayed at the Dera of Muhammad Ramzan and Muhammad Amir. The complainant along with Muhammad Amir and Mst. Bakhtan and Mst Hameedan went to their respective cots after putting the same from western to eastern side in courtyard of the house. Muhammad Ismail aged about 6/7 years son of Muhammad Ramzan also slept along with Mst. Hameedan. The complainant woke up early in the morning. At about 4 a.m., three persons armed with fire-arms came there. One of them was aged person having small beard and moustaches while other two were quite young. The accused asked Muhammad Amir to wake up. Muhammad Amir grappled with them. On alarm, the complainant, Mst Bakhtan and Mst. Hameedan also woke up. A .12 bore licensed gun was lying near Mst. Hameedan. She intended to fire upon the accused but one of the accused snatched the gun from her and other two tired shots which landed upon the neck of Mst. Hameedan. She fell down.
On bullet hit upon the forehead of Muhammad Amir due to firing made by the accused. One of the accused gave a butt blow on the face of Mst. Bakhtan due to which apart from upper lip, her four teeth were fractured. Muhammad Saleem who was sleeping on the cost of Mst. Hameedan sustained a bullet injury upon his head. The complainant took shelter under a Chhapper in order to save his life. The people residing in the Dera situated nearby attracted to the place of occurrence on hearing the sound of fires. The accused on seeing the people decamped from the spot. It was alleged in the F.I.R. That the complainant and other injured witnesses could identify the assailants if brought before them. The injured namely Mst. Bakhtan, Mst. Hameedan and Muhammad Ismail were being removed to the hospital but Mst. Hameedan succumbed to her injuries in the way'. After completion of investigation the respondents were sent up for trial and on conclusion whereof they were convicted as per details mentioned hereinabove. Being aggrieved an appeal was preferred on behalf of respondents which has been accepted vide judgment impugned, hence this petition.
3. Syed Ali Hassan Gillani, learned Advocate Supreme Court entered appearance on behalf of Nazir Ahmed (petitioner) and contended strenuously that the impugned judgment of learned High Court acquitting the respondents of murder charges and causing serious injuries to the victim is against law and facts of the case and besides that the reasoning given by the High Court is without substance having no nexus whatsoever with the evidence which has come on record. In order to substantiate the said contention it is urged with vehemence that the ocular evidence furnished by the injured witnesses whose presence was natural has been disbelieved on extraneous considerations. It is next argued that the eye account furnished by the prosecution duly corroborated by the medical evidence has been ignored without any rhyme or reason. It is next contended that the injured witnesses had not only nominated the respondents but also described the role played by them in commission of alleged offences and F.I.R. Was also got lodged with promptitude. It is also pointed out that the learned Special Judge (STA) Court, has examined the evidence in depth and convicted the respondents by a well-reasoned order, which has been reversed without assigning any cogent reasoning.
4. We have carefully examined the above-mentioned contentions, scanned the entire evidence and perused the judgment of learned trial Court as well as the judgment impugned carefully. A careful scrutiny of the entire record would reveal that Nazir Ahmed (petitioner) by whom the F.I.R.
Was got lodged was not residing in the house where the alleged occurrence had taken place. It has also come on record that place of residence of Nazir Ahmed was at a distance of 15 Acres. It is worth-mentioning that on first instance Nazir Ahmed was examined on 29-6-1997 and no mention whatsoever was made qua the respondents in his statement besides that his statement was also got recorded as P.W.11 by the learned trial Court. We have scrutinized his statement with abundant caution, which is indicative of the fact that the incident had taken place in the darkness of night and no light was available at the spot. It is quite amazing that the respondents are residing in the same village but neither could they be identified nor their names could be mentioned in the earlier statement of Nazir Ahmed got recorded on 29-6-1997. This would lead us to draw the irresistible conclusion that the assailants could not be identified by Nazir Ahmed. It has also been observed with curiosity that the statement of Mst. Bakhtan was' got recorded after delay of 24 days. The date of recording of her statement is 29-6-1997 on the basis whereof a strong inference can be drawn that statement was got recorded after deliberation. The learned Advocate Supreme Court on behalf of petitioner could not explain that as to why the respondents who were residing in the same village could not be named as accused in the F.I.R. Scrutiny whereof would reveal that it was got lodged against some unknown culprits. The learned Advocate Supreme Court has laid much stress on the factum of recovery in oblivion of the fact that there is no report from Fire-arm Expert and thus, the factum of recovery would have no substantial bearing on merits of the case because the empties and crime weapons could not be sent to Fire-arm Expert. We are not persuaded to agree with earned Advocate Supreme Court that this could have been done even at this stage by this Court because no such request was made at opportune moment before the trial Court and if it is accepted now it would amount to provide another opportunity to the prosecution to fill in the lacunas which cannot be done. No doubt that the respondents have been nominated in supplementary statement evidentiary value whereof cannot be more than a statement got recorded under section 161 and as such it cannot be considered as substantial evidence on the basis whereof conviction could have been awarded to the respondents. It is worth-mentioning that "the principles which have been consistently followed by the Supreme Court are that as an ultimate Court, the Supreme Court must give due weight and consideration to the findings of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by disregard of any accepted principle regarding appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Court below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faculty reading of evidence, or where there has been a departure from the procedure in the reception of evidence or otherwise interference by this Court would be justified and necessary. Therefore, Supreme Court will be reluctant to interfere with such orders unless it is possible to demonstrate with certainty that none of the grounds upon which he was acquitted is at all supportable, even though upon the evidence on record a different conclusion might be arrived at. But where the acquittal of the respondent cannot be maintained, as the findings recorded by the High Court are clearly not supportable on the record, interference by the Supreme Court is not only justified but necessary in the interest of justice". (State v. Khan Beg 1970 SCM R 353; Haq Nawaz v. Muhammad Khan 1977 SCM R 356; Farid v.
Aslam PLD 1977 SC 4 and Fazal Ilahi v. Zamurad Khan PLD 1977 SC 535).
5. On the criterion as mentioned hereinabove this petition has been examined and we are of the considered view that the judgment impugned is neither perverse nor arbitrary but on the other hand cogent reasoning has been given to set aside the determination of learned trial Court. No illegality or infirmity could be pointed out persuaded us to grant leave to appeal.
' In sequel to above mentioned discussion this petition being devoid of merit is dismissed and leave refused.