' ABDUL HAMEED DOGAR, J.---All the above matters arise out of a common judgment of the learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, delivered on 16-5-2001, therefore, these are dealt with and dispose of through this consolidated judgment.
2. Criminal Appeal No,249 of 2001 has been filed as a matter of right by appellant Nawazul Haq Chowhan who was convicted and sentenced by the learned High Court in appeal against his acquittal. Vide Criminal Appeal No,286 of 2001 appellant Ch. Muhammad Asif has challenged his conviction and sentence. Civil Appeal No,553 of 1994 filed by Malik Anjum Farooq Paracha is with the leave of this Court respectively: As regard Criminal Petition No, 167 of 2001, petitioner Malik Anjum Farooq Paracha has sought conviction and sentence of respondents under sections 302(b)/149, 324, 149 and 337, P.P.C. Alongwith the compensation, fine, Diyat, Arsh and Daman payable under the law,.
3. The facts necessary to be stated are that a criminal case viz. F.I.R. No,488, dated 11-11-2001 was registered at the behest of Malik Anjum Farooq Paracha at Police Station Civil Lines, Rawalpindi, under sections 324/148/149, P.P.C. Against accused Manzoorul Haq, Ikramul Haq, Nawazul Haq, Inam Zafar, Ch. Muhammad Asif and Waqar alias Wiki for causing murderous assaults on Altaf Hussain, Fida Hussain and Muhammad Siddique Paracha as a result whereof they sustained injuries.
However, Altaf Hussain Paracha succumbed to the injuries whereafter offence was altered and section 302, P.P.C. Was added.
4. Accused Ikramul Haq, Inam Zafar, Nawazul Haq, Manzoorul Haq and Ch. Muhammad Asif were sent up to face trial before the Court of learned Additional Sessions Judge, Rawalpindi whereas accused Waqar alias Wiki absconded and was declared proclaimed offender. On conclusion of trial, the learned trial Court convicted and sentenced the accused as under:--
(1) Ikramul Haq was convicted under section 302, P.P.C. And was sentenced to death. He was also directed to pay a sum of Rs,1,00,000 as compensation to the legal heirs of deceased Altaf Hussain.
(2) Inam Zafar was convicted under section 337-F (iii), P.P.C. For causing injuries to P.W. Malik Fida Hussain and was sentenced to undergo R.I. For three years as Tazir and was directed to pay Rs,50,000 as Daman.
' However, accused Nawazul Haq, Manzurul Haq and Ch. Muhammad Asif were acquitted of the charges.
5. Ikramul Haq and Inam Zafar assailed their conviction and sentence in Criminal Appeal No,806 of 1995 before learned High Court which vide impugned judgment, altered the sentence of respondent Ikramul Haq from section 302(b) to section 302(c), P.P.C. And sentenced him to suffer R.I. For 25 years. He was also directed to pay a sum of Rs,1,00,000 as compensation to the legal heirs of deceased Altaf Hussain or in default whereof to undergo S.I. For six months. The conviction and sentence of Inam Zafar was, however, maintained. Criminal Appeal No,35 of 1996 filed by complainant/petitioner Malik Anjum Farooq Paracha against acquittal of respondents Nawazul Haq, Manzobrul Haq, Ch. Muhammad Asif and Inam Zafar from the charge of murder was partly accepted whereby Nawazul Haq was convicted under section 302(c), P.P.C. And sentenced to 25 years' R.I. With compensation of Rs,1,00,000 to be paid to the legal heirs of the deceased or in default to undergo six months' S.I. Ch. Muhammad Asif was convicted under section 337-A(ii), P.P.C.
And sentenced to two years as Tazir. He was also directed to pay Rs,50,000 as Daman to Muhammad Siddique or in default of payment of Daman, he was directed to be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment. He was also convicted under section 337-A(ii), P.P.C. And sentenced to 3 years' R.I. As Tazir for causing injuries to P.W.
Muhammad Siddique. He was also directed to pay 5% of Diyat amount prevalent on 11-11-1991 payable in lump sum and in default was directed to be kept in jail and dealt with in same manner as if sentenced to simple imprisonment. His sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Criminal Appeal No,806 of 1995 seeking the enhancement of compensation against respondent Ikramul Haq was dismissed.
6. The fateful episode occurred on 11-11-1991 at about 1-45 p.m. In front of the Court of Mr: Ejaz Ahmad Buttar, Civil Judge/Revising Authority, Rawalpindi for the Local Bodies Elections. Respondent Ikramul Haq had filed objections against the voters' lists before the above said Court which were listed for 11-11-1991 at about 1-45 p.m. Complainant Malik Anjum Farooq Paracha accompanied by Fida Hussain, Altaf Hussain and Muhammad Siddique had gone to contest the same before the said Court, meanwhile, there appeared respondents, namely, Ikramul Haq, Inam Zafar, Nawazul Haq, Ch. Muhammad Asif and Manzoorul Haq and absconding accused Waqar alias Wiki armed with revolvers. They raised Lalkara and started firing at the complainant party. Respondent Ikramul Haq allegedly fired at Altaf Hussain Paracha, which hit him on the right side of his chest, whereas appellant Nawazul Haq fired at the left side of his chest. Thereafter they also repeated a fire each which hit the deceased at his head and knee. Respondent Inam Zafar and absconding accused Waqar alias Wiki fired at Fida Hussain, the father of the complainant and injured him, respondent Manzoorul Haq fired at Muhammad Siddique which struck him at his left side of chest. Ch. Muhammad Asif also fired at Muhammad Siddique which hit him at his head. Complainant saved himself as he took shelter behind a wall. A large number of people got attracted and saw the incident. The complainant party saved themselves while hurling bricks and stones upon the respondents party.
7. The motive behind the incident related to the ensuing elections of Municipal Corporation, wherein respondent Ikramul Haq was candidate against complainant Malik Anjam Farooq Paracha and he had an apprehension that he would lose the elections as usual. The facts further disclosed that one person standing by the side of the accused party had sustained injuries in the firing accidentally.
8. Immediately after the incident, police arrived at the scene of occurrence and apprehended respondents Ch. Muhammad Asif and Manzoorul Haq and recovered an unlicensed revolver from the possession of Ch. Muhammad Asif respondent. However, nothing was recovered from the personal search of respondent Manzoorul Haq. Cars Nos.SA-8197 and RIP 9629 belonging to the respondents party left at the spot were also taken into possession. Search made from the Car led to the recovery of a .32 bore pistol wrapped in a piece of cloth lying on the rear seat of Car No,RIP- 9629. From the spot inspection, six empties, 38 cartridges, four empties of 455 cartridges, four empties of .34 bore cartridges and two missed cartridges of .32 bore were taken into possession.
Five pieces of blood-stained papers were also taken into possession from in front of the Court- room. The Investigating Officer also prepared the site plan of the place of occurrence. It was revealed that one Nasir alias Sheeru a passerby was admitted in the hospital and was unconscious. However, his statement was recorded on 12-11-1991 and was incorporated in the Zimni.
On 21-11-1991, Abdul Hakeem, S.-I. Produced photographs of the above mentioned tars. On 29-11- 1991, he received information that Altaf Hussain expired and, therefore, he altered the offence to section 302, P.P.C. And prepared the inquest report of the dead body and dispatched the same for autopsy.
9. The investigation was transferred to Mian Akhtar Ali, S.P. Headquarters and on whose verbal direction a counter case viz. F.I.R. No,495, dated 14-11-1991 under sections 324/148/149, P.P.C. Was lodged at Police Station Civil Lines, on the application of respondent Manzoorul Haq. On the application, dated 16-11-1991 of Anjum Farooq Paracha dying declaration of the deceased Altaf Hussain and statements of injured Fida Hussain and Muhammad Siddique were recorded. On 27- 7-1993, the Draftsman prepared a site plan in the red ink.
10. Initially on 11-11-1991 deceased while injured was examined by Dr. Muhammad Asif Alvi who noted the following injuries on his person:
(i) A punctured wound on right side of chest 3" from the nipple. Track leading to subcutaneous tissue.
(ii) Punctured wound on left side of chest 5" from the nipple track to subcutaneous tissue.
(iii) A lacerated wound 1" scalp deep bleeding with contused edges.
(iv) Contusion 1/2" with black edges on medial aspect of right knee.
' All the injuries were declared to be grievous and were caused by fire-arms. He was referred for surgery.
11. Dr. Anis Ali Zaidi, Chief Medical Officer, conducted the operation of Altaf Hussain and prepared the operational notes.
' After the death, on 29-11-1.991, Dr. Muhammad Ashraf, Medical Officer (P.W.4), D.H.Q. Hospital, Rawalpindi, conducted the postmortem examination on the dead body of Altaf Hussain.
12. Prior to the completion of the investigation, complainant Anjum Farooq Paracha filed private complaint on 7-1-1992 on the same facts mainly for the reason that he was dissatisfied with the mode and attitude of the Investigating Officer's who, according to him, were partial and were siding with respondents/accused and highly influential persons. The said complaint was brought on record after conducting preliminary inquiry and was consolidated with the criminal case and tried together.
13. The prosecution examined as many as eight witnesses from the complaint case and 18 Court witnesses from the State case.
14. All the accused in their respective statements under section 342, Cr.P.C., denied the incident and professed innocence. They, however, did not examine themselves on oath but examined witnesses, namely, Mazhar Iqbal, Flying Squad (D.W.1), Sondey Khan, A.S.-I. (D.W.2), Farrukh Rashid, H.C. (D.W.3), Rafique Ahmed (D.W.4) and Abdul Majid Qureshi, Handwriting Expert (D.W.5) in their defence.
15. However, in response to reply to a question 'as to why the case was registered against him and why P.Ws. Had deposed against him respondent Ikramul Haq replied as under:-- ' "That on 11-11-1991 at about 11-00 a.m. Anjum Farooq Paracha, while appearing before Mr. Ijaz Ahmad Buttar, Civil Judge, misbehaved with me on which I reprimanded him. He got infuriated and left the Court-room alongwith his companions declaring that he would deal with me. I and my co- accused remained present outside .The Court of Mr. Ijaz Ahmad Buttar in connection with the hearing of objections against registration of votes and at about 1-30 p.m. Anjum Farooq Paracha, P.W., Malik Fida Hussain Paracha P.W., Altaf Hussain deceased and others armed with fire-arms etc., appeared on the scene. At that time I was sitting in the car and was taking refreshments when Fida Hussain P.W. Fired at me but I jumped out from the car immediately on seeing the accused and as such, the bullet hit the bonnet of the car. Thereafter, Anjum Farooq Paracha P.W. Fired a shot at us which hit Nasir alias Naseer alias Sheeru C.W. In the abdomen while the companions of Anjum Farooq Paracha also fired indiscriminately hitting the trees and walls. My co-accused Manzurul Haq Chowhan took out his licensed revolver but due to tremors on account of old age and weakness he could not fire and the revolver dropped from his hand. It was immediately picked up by Muhammad Asif accused who, apprehending danger to our lives, fired two/three shots towards the side where the complainant party was present. This resulted in cessation of firing from their side and availing this opportunity we managed to escape from the spot. Muhammad Asif accused was sent to the Police Station by Manzurul Haq Chowhan, accused with a written complaint for the registration of case against Anjum Farooq Paracha and others and revolver used by Muhammad Asif was also sent for production before the Police. The police instead of registering a case, detained Muhammad Asif in the Police Station and later on, in collusion with the complainant party, registered a false case against us by distorting the facts and did not register any case from our side. However, when Nasir alias Sheeru C.W. Also made a statement in the hospital against Anjum Farooq Paracha and others, a counter-case was also registered on 14-11-1991 on the basis of the written application already submitted by Manzoorul Haq Chowhan through Muhammad Asif accused. Had Muhammad Asif not acted in self-defence Anjum Farooq Paracha, Altaf Hussain and others would have murdered all of us as they were armed with deadly weapons and were firing indiscriminately."
16. Appellant and others mainly adopted his statement and further added that they will submit written statement under section 265-F(v), Cr.P.C., which were, however, not filed.
17. The counter-case lodged by Manzoorul Haq respondent could not proceed as the F.I.R. In that case was challenged by complainant Anjam Farooq Paracha in writ petition before the learned High Court and was quashed by a learned Single Judge which was reversed by a learned Division Bench in ICA but ultimately stayed by this Court in Civil Appeal No,553 of 1994.
18. We have heard Khawaja Sultan Ahmad, Senior Advocate Supreme Court for appellant Nawazul Haq, Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for Malik Anjum Farooq Paracha and Ch. Arshad Ali, learned Advocate Supreme Court for the State and have gone through the record and the proceedings of the case in minute particulars.
19. At the very outset Khawaja Sultan Ahmad, learned Advocate Supreme Court stated that respondents Ikramul Haq, Inam Zafar and Ch. Muhammad Asif had served out the sentences, paid the amount of compensation/Daman and have since been released. In view of the above petition, he confined his arguments only to the extent of Nawazul Haq appellant. He seriously criticized and attacked the impugned judgment and argued that the same is not sustainable in law which in fact is not a judgment in consonance with the provisions of section 367, Cr.P.C. Inasmuch as neither important points in dispute were discussed in detail nor the evidence in support whereof was taken note of. This being a case of appeal against acquittal, the matter should have been decided in the light of the principle laid down by this Court from time to time and findings of the trial Court about the acquittal and reasons given for the same should have been weighed and given proper appreciation as regards the decision of the case. According to him, the learned High Court while converting the acquittal into conviction of the appellant, has ignored well-settled principle of the superior Courts that the same could only be done if the judgment in question is either illegal, perverse or foolish on the face of it or based on misreading and non-appreciation of evidence.
Admittedly both the Courts below have come to the conclusion that both the parties have suppressed the actual facts and had not come with clean hands. According to him, it has come on record that there occurred an altercation at about 11-00 a.m. In between the parties and in retaliation whereof complainant Anjam Farooq Paracha came alongwith eleven culprits armed with lethal weapons and attacked upon the appellant party. He argued that the learned Lahore High Court while convicting the appellant has misread the medical evidence and record regarding fire-arm injuries found on the person of the deceased and has erred in treating the same as two separate wounds of entry. It has lost sight of the fact that according to operation notes, the injury of right side of the chest had traversed from right wound of entry and surface of liver from right to left and only one single track of the bullet is shown therein. He attacked the judgment and argued that in view of the above medical opinion, appellant Nawazul Haq was rightly acquitted by the trial Court mainly for the reason that deceased had sustained only one shot attributed to respondent Ikramul Haq alone. The single shot got corroboration from the clothes of the deceased whereby only one hole was noticed on the shirt of the deceased duly encircled and initialed by Dr. Muhammad Asif Alvi and further corroborated by the statements of Sondey Khan, A.S.-I. D.W.2, Muhammad Yousaf, Inspector P.W.16 and opinion of Majeed Qureahi, Handriting Expert P.W.S. The learned High Court had advanced no reason at all to discard the finding recorded by the trial Court on this aspect of matter which is highly convincing. Learned counsel emphasized that neither X- Ray Films of the deceased or that of injured witnesses were produced at trial by the prosecution nor Dr. Anis Ali Zaidi who operated upon the deceased while injured was examined. When summoned as defence witness, he reported that the operation notes had been torn as such was not examined and was given up. According to him, the medical evidence further gets support from the blood-stained clothes of the deceased which were taken into possession by S.-I. Farman Ali and deposited in Malkhana on 11-11-1991 and were produced in the Court and were examined by learned Additional Sessions Judge at trial who also noticed one hole on the shirt of the deceased corresponding to a single shot.
20. On the other side, Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the petitioner/complainant Malik Anjum Farooq Paracha, seriously controverted the above contentions of the appellant's counsel and argued that the accused party is at dagger drawn with the complainant party since last so many years. It is not only the first occasion that they had attacked upon the complainant party but have been attacking upon them since 1966 and many criminal cases were registered against them. He emphasized that the F.I.R in this case was promptly lodged thus precluding any possibility of consultation, false implication or exaggeration.
According to him, prosecution has been able to establish its case by producing unimpeachable evidence and both the Courts have erred in holding that the case of the prosecution was that of a free fight warranting individual liability. In fact it has come on record that the appellant and the other accused attacked upon the complainant party with a particular motive and having common object after forming unlawful assembly within Courts premises, thus involved, the mischief of sections 148 and 149, P.P.C. And should have been convicted with constructive liability under sections 148, 149 and 302 (b), P.P.C. He further contended that ocular account of the incident furnished by petitioner Anjam Farooq Paracha, injured Fida Hussain and injured Muhammad Siddique has been fully corroborated by the medical evidence furnished by Dr. Muhammad Asif Alvi and Dr. Muhammad Ashraf, Medical Officers, according to which, the deceased Altaf Hussain had received one fire-arm shot on the left side of the chest and other on the right side of the chest which were attributed to convict Ikramul Haq and appellant Nawazul Haq respectively. Dr. Muhammad Asif Alvi in his statement recorded at trial has never said that the deceased had received one shot only at the chest resulting into entry and exit wounds. He has also categorically denied the initial on the clothes of the deceased at the place of the hole in the shirt. So the version in defence set up by the appellants side was totally false and a bald attempt to wrangle out of criminal misdeeds. On the contrary, appellants party has admitted their presence at the place of occurrence and according to their version, it was the convict Ch. Muhammad Asif who fired two shots in self-defence at the complainant party. They in fact had been very influential persons of Rawalpindi City. Ikramul Haq had been, a Councillor of Rawalpindi Municipal Corporation. Appellant Nawazul Haq had remained as M.P.A. And Councillor of Municipal Corporation, Rawalpindi.
Respondent Manzoorul Haq was a retired S.S.P. Whereas Ch. Muhammad Arif real brother of convict Ch. Muhammad Asif was posted as D.I.-G. In the Ministry of Interior at Islamabad at the relevant time. Irrespective of the above the sister of Ch. Muhammad Asif was the wife of Jaffar Iqbal, the then Health Minister and it was on his pressure the doctors sided with them. He, however, lastly contended that the appellant as well as the above mentioned respondents have committed the offence in a brutal and callous manner as such they deserve to be punished with the normal penalty of death and not even a single extenuating circumstance had been advanced by the High Court while modifying the sentence of death of respondent Ikramul Haq from section 302(b) to section 302(c).
21. Ch. Arshad Ali, learned Advocate Supreme Court, on behalf of the State, adopted the arguments of the counsel for the petitioner/complainant Malik Anjam Farooq Paracha.
22. The considerations for interference in an appeal against acquittal and in an appeal from conviction are altogether different. It is well-settled principles of law that judgment of acquittal can only be interfered with if it is found on the face of it as illegal, perverse, capricious, artificial, ridiculous, speculative and based on misreading or non-appraisal of the evidence on record and that too, with a view only to avoid grave miscarriage of justice.
23. In order to come -to a proper conclusion, it would be appropriate to have a glance in detail on the findings of acquittal recorded by the trial Court and that of conviction by Appellate Court in the light of prosecution evidence adduced at trial and defence pleas raised therein.
24. The ocular account in the instant case has been furnished by the petitioner Malik Anjum Farooq Paracha P.W.5, injured Fida Hussain (P.W.6) and Muhammad Siddique (P.W.7). The version put forth by the complainant in the F.I.R that it was respondent Ikramul Haq who first fired from his revolver at Altaf Hussain which hit on the right side of chest and thereafter it was appellant Nawazul Haq who fired at him from his revolver which hit on the left side of his chest has been fully supported by all the three above mentioned-eye-witnesses at the trial. It lends support and full corroboration from the medical evidence furnished by (P.W,3) Dr. Muhammad Asif Alvi, Medical Officer and (P.W.4) Dr. Muhammad Ashraf, Medical Officer. Dr. Muhammad Asif Alvi was the first medical officer who examined deceased Altaf Hussain in an injured condition. According to him, injury No,1 was a punctured wound on right side of chest, 3 c.m. From the nipple whereas Injury No,2 was also a punctured wound on left side of chest 5 c.m. From the nipple. Similarly, Dr. Muhammad Ashraf, Medical Officer, who conducted his post-mortem defined Injury No,7 as a lacerated wound 1.5 c.m.
On the right side of the chest whereas Injury No,8, a lacerated wound 1 x 1 c.m. 12 c.m. Below and lateral to left nipple, 9 c.m. Medial to left mid-axillary line, on the left side of front of chest. It was further got clarified in the query made by D.S.P., Crime Branch, in writing on 4-1-1992 from P.W. Dr. Muhammad Asif Alvi soliciting his opinion on the nature of injuries on the person of deceased Altaf Hussain. As per reply whereof Injuries Nos.1 and 2 were entry wounds. According to him deceased remained alive for 18 days and the bullet could have exited from the entry wound via normal movement of bowl by cuffing through air passages. As against the contention of the learned counsel for appellant Nawazul Haq that deceased has sustained only one bullet injury on the chest which is reflected from the operation notes whereby only one track of bullet came to the knowledge of the doctor who operated upon the deceased while in injured condition is also of no avail to him. In fact this question should have been asked from Dr. Anis Ali Zaidi, the Surgeon, who operated upon the deceased while in injured condition. But neither he was examined nor operation notes were brought on record. An unsuccessful attempt for examination of Surgeon as Court- witness was made by the appellant side and was summoned alongwith the operation notes but was given up and was not examined being unnecessary on account of non-availability of relevant operation notes. The contention that the bullet has entered from the right side of the chest of the deceased and has exited from the left side of the chest is not believable and convincing in view of the damage caused to the various internal parts of the body. Thus the reasoning of acquittal recorded by the trial Court on this aspect of the matter is perverse and against the record.
25. Another important circumstantial evidence which weighed with the trial Court in favour of acquittal was the examination of the clothes said to have been worn by deceased Altaf Hussain at the time of incident. While advancing the reasoning of acquittal, the trial Court mentioned that the vest said to have been worn by Altaf Hussain deceased at the time of occurrence had only one hole corresponding to injury No,1 which corroborated that the deceased had received a single shot.
In fact the trial Court has ignored the fact that it was Dr. Muhammad Asif Alvi P.W.3 who first examined and attended the deceased in injured condition. He not only noted the injuries on his person but categorically denied having removed the clothes from the person of the deceased at the time of his medical examination and also disowned the circling corresponding cut on the clothes and denied having put initial thereon. P.W.7 Muhammad Siddique Paracha also disowned the clothes of the deceased and other injured said to have been worn by them at the time of occurrence to be their own. C.W.6 Muhammad Jamil and C.W.7 Muhammad Siddique attesting witnesses of the recovery memo. Also did not support the version that the clothes *ere taken into possession by Farman Ali, S.-I. Lawfully who was stated to have died. Even complainant also disowned the clothes shown to him in the Court as case property. Thus there was nothing to prove on the record that the vest being worn by deceased Altaf Hussain had single hole corresponding injury No,1, therefore, the findings of the acquittal recorded on this factor also was contrary to record, thus were arbitrary and capricious.
26. So far as defence version is concerned, the trial Court has laid much stress upon factor that it was not a one-sided affair. While advancing the reasons for the same, it has been mentioned that on the day of incident both the parties were present in the District Courts premises in connection with the hearing of the objections on the registration of the votes as complainant Malik Anjam Farooq Paracha and convict Ikramul Haq were contesting the elections of Municipal Corporation, Rawalpindi. A scuffle admittedly took place between them at 11-00 or 11-30 a.m. And it was in retaliation whereof the instant incident occurred. While elaborating the defence version, the trial Court further observed that it was the complainant party who gathered his partymen equipped with fire-arms and attacked upon the appellant party and caused injuries to (C.W.18) Nasir alias Naseer alias Shiroo belonging to their side. It was in the above background, the trial Court held it as a case of free fight between two parties and convicted Ikramul Haq on the analogy that he was individually liable for the act. Even the learned High Court in the impugned judgment has held the case to be of individual liability and considering the case of Nawazul Haq appellant on the same touchstone set aside his acquittal and convicted and sentenced him to rigorous imprisonment for 25 years under section 302(c), P.P.C. On the principles of rule of consistency. Since the role attributed to appellant Nawazul Haq stood established on record and corroborated by medical evidence thus should have been considered in the same prospective as that of Ikramul Haq, therefore, judgment of his acquittal being perverse and arbitrary in nature was rightly set aside.
27. The defence plea raised by convict Ikramul Haq that at the time of incident he was sitting in his car and was taking refreshment when he was fired at by Fida Hussain P.W. But he jumped out from the car as such bullet hit the bonnet of the car. Thereafter, the complainant fired another shot at them which hit Nasir alias Naseer alias Sheeru in the abdomen whereupon co-accused Manzoorul Haq took out his licensed revolver but due to tremors on account of old age he could not fire and the revolver dropped from his hand which was picket up by accused Muhammad Asif who fired 2/3 shots in self-defence upon complainant party, is devoid of force as the same has not been established to be true on the face of record. The same gets further support from the facts that neither medical officer who examined Nasir alias Naseer alias Sheeru was produced at the trial to prove his injuries nor concerned medical certificate was placed on record. On the contrary, the version of the complainant was found correct and trustworthy by the learned High Court by placing reliance on the statements of Muhammad Yousaf, Inspector/S.H.O., Abdul Waseh Rana, S.P.
And Abdul Hakeem, A.S.-I. Admittedly, the convict Ikramul Haq had not challenged his conviction which stands established on record. Similarly, Inam Zaffar also did not challenge conviction and sentence and was released after serving out the sentence. In such eventuality and reasons, stated hereinbefore, we do not find that the case for enhancement of their sentence is made out.
28. For what has been discussed above, we are of the considered opinion that the learned Lahore High Court was justified to interfere with the judgment of acquittal of appellant Nawazul Haq and advanced cogent reasons declaring the judgment of acquittal as speculative, arbitrary, perverse, contrary, adverse in nature and based on misreading and non-appraisal of evidence. Criminal Appeal No,249 of 2001 filed by him thus being devoid of force is dismissed and impugned judgment is maintained.
29. As regards the case of appellant Ch. Muhammad Asif is concerned, we also do not find any justification to interfere with the finding of conviction recorded against him by the learned High Court which being exceptionable is maintained. Thus his Criminal Appeal No,286 of 2001 is dismissed being devoid of force.
30. In the above background, we also do not find any justification to allow Criminal Petition No,167 of 2001 filed by petitioner/complainant Malik Anjum Farooq Paracha seeking enhancement of the sentence against the respondents, namely, Ikramul Haq, Inam Zaffar, Nawazul Haq, Ch. Muhammad Asif and Manzoorul Haq which is accordingly dismissed and leave to appeal refused.
31. Civil Appeal No,553 of 1994 with the leave of this Court arises out of a counter-case viz. F.I.R.
No,495 of 1991 registered under sections 324, 148 and 149, P.P.C. At the behest of acquitted accused Manzoorul Haq against Malik Anjum Farooq Paracha and seven others. Appellant Malik Anjum Farooq Paracha and others .Sought quashment of the said F.I.R. In Writ Petition No,178 of 1993 before the Lahore High Court, Rawalpindi Bench, Rawalpindi under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which was allowed, against which I.C.A. No,7 of 1993 was filed by acquitted accused Manzoorul Haq and others which was accepted and the order passed by the learned Single Judge of the Lahore High Court for the quashment in writ petition was set aside. This order, however, was challenged by Malik Anjum Farooq Paracha appellant in Civil Petition No,129 of 1994 in which leave to appeal was granted, inter alia, on the ground as to whether or not ICA lie against the order passed in writ petition by the learned Single Judge and as to whether or not the word 'proceedings' mentioned in the proviso of section 3 (1) of Law Reforms Ordinance, 1972, includes the F.I.R. On this aspect of the matter, we have given our anxious consideration to the contentions raised at bar. The above controversy have been resolved by this Court in the case of Mst. Karim Bibi and others v. Hussain Baksh and another (PLD 1984 SC 344) and Settlement Commissioner (L) and others v. Mauj-Din and others (1989 SCM R 1351) while holding that in view of section 3(2) of the Law Reforms Ordinance, 1972, I.C.A. Is not maintainable. Accordingly Civil Appeal No,553 of 1994 is allowed and order, dated 14-3-1993 passed in I.C.A. No,7 of 1993 by the learned Division Bench of the Lahore High Court. Rawalpindi Bench, is set aside.