1. ' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal calls in question the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 12-3-2003, whereby the appeal filed against the order of the District Court of Criminal Jurisdiction, Mirpur was dismissed.
2. ' The facts are that a case under section 18 of the Offence of Zina (Enforcement of Hudood) Act, 1985 was registered against the respondents which, after investigation, was challaned before the Tehsil Court of Criminal Jurisdiction, Mirpur. The trial Court after conclusion of the trial convicted the respondents and sentenced them three years and five years imprisonment and Rs,2,000 as fine respectively to each of the accused. An appeal filed on behalf of the respondents was accepted by the District Court of Criminal Jurisdiction, Mirpur and they were acquitted of the charge. A further appeal on behalf of the complainant before the Shariat Court of Azad Jammu and Kashmir was also dismissed. Hence, this appeal.
3. ' Ch. Lal Hussain, the learned counsel for the appellant, contended that the trial Court after due appreciation of the facts arid law proceeded to convict the accused/respondents. The opinion of the trial Court who happens to record the evidence has got weight. It was also argued that the prosecution story was proved through a direct and indirect evidence. All the prosecution witnesses without any contradiction or discre pancy proved the case but interestingly the First Appellate Court acquitted the accused persons without giving any reason or point out any illegality in the order passed by the trial Court. It was argued by him that in such-like cases re-appraisal of evidence is necessary as the orders have been recorded against the evidence on record.
4. ' Messrs Muhammad Yunus Arvi and Yaqub Javed Batalvi, the learned counsel representing the respondents, controverted the arguments addressed on behalf of the appellant on the ground that the prosecution story was contradicted by the medical evidence. It was also contended that an unbelievable story was brought before the Court tt which could not be proved by the prosecution. It was also argued that after the acquittal recorded by the District Court of Criminal Jurisdiction the order was affirmed by the Shariat Court. The learned counsel further argued that no re-appraisal of evidence is permissible.
5. ' We have heard the learned counsel for the parties and also gone through the record. The First Information Report was lodged by the appellant herein. It was disclosed that on 9-5-1996 at about 11-45 p.m., he was sleeping at the roof of his house along with his wife and children. The cot of his wife was adjacent. At the night time he saw that Amanat Ali, respondent No,2 was sleeping with his wife Mst. R'az Begun) and they were naked for commission of Zina. The appellant started beating the respondents with a Danda'. The villagers on his alarm gathered there and witnessed the occurrence. The investigation was completed and the respondents were sent to face trial, under section 18 of the Offence of Zina (Enforcement of Hudood) Act, 1985. The trial Court convicted the respondents while the First Appellate CoLrt acquitted them. The order was upheld by the Shariat Court of Azad Jammu and Kashmir.
6. ' We have perused the judgment passed by the First Appellate Court. It does not appeal to us that the order passed by the Court which was subsequently affirme by the Shariat Court was not based on sound reasons and was artificial, ridiculous, based on misreading of evidence and thus, leading to miscarriage of justice.' Those are the basic grounds on which the acquittal order can be set aside as the law stands settled in this regard. Reliance in this regard may be placed on a case reported as ' Mirza Noor Hussain v. Farooq Zaman and 3 others 1993 SCM R 305 where the following observations were made:-- "Trial Court's judgment having been supported by sound reasons Supreme Court could not substitute its own findings in place thereof unless it reached the conclusion that the findings of the trial Court as well as those of the High Court were "artificial, shocking, ridiculous, based on misreading of evidence and leading to miscarriage of justice."--- No legal error was found in the judgments of the lower forums after scanning the evidence."
7. ' It may also be .Nentioned that in an appeal against the acquittal the Supreme Court would not on principle, ordinarily interfere and shall give due weight and consideration to the findings of Court acquitting the accused and the Court shall avoid re-appraisal of evidence as held in the case titled Yar Muhammad and 3 others v. The State 1992 SCM R 96, wherein it was observed:- "In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles of setting aside an order of acquittal are now well- settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice . "
8. ' In the present case the prosecution story that both the respondents were sleeping naked when the appellant saw them, started beating and the persons in the vicinity gathered there but one of the prosecution witnesses, who appeared to support the appellant, stated that they were not naked. Therefore. We have no reason to differ with the findings recorded by the Shariat Court and the District Court of Criminal Jurisdiction, Mirpur, which are based on reasons as such the appeal merits no consideration which is hereby dismissed.
9. Appeal dismissed.
10. 3004 P Cr. L J 1353 [Lahore] Before Sh. Abdul Rashid, J GULZAR HUSSAIN---Petitioner versus ADDITIONAL SESSIONS JUDGE, JHANG and 4 others---Respondents Criminal Revision No,1043 of 2003, decided on 8th December, 2003.
11. Criminal Procedure Code (V of 1898)--- ----Ss. 265-A & 265-F(2)---Penal Code (XLV of 1860), Ss.302/109/148/ 149---Evidence for prosecution---Section 265-A, Cr.P.C. And S.265-F(2) read together would mean that in cases Instituted upon police report, the Court would ascertain from the Public Prosecutor the names of the persons whom he wished to produce as prosecution witnesses and would Sitrnmon said persons to give evidence, whereas the word "complainant," figuring in S.265-F(2), Cr.P.C. Meant the complainant in the complaint case---Only in the case instituted upon private complaint it was prerogative of the complainant to name the witnesses whom he would intend to produce, whereas in the case instituted upon police report under S.173, Cr.P.C. Public Prosecutor had the right to name the persons to be produced as prosecution witnesses---Present case had been instituted against the accused on a police report---Complainant through his application intended to give up the Investigating Officers as prosecution witnesses whom the Deputy District Attorney considered necessary to be produced in order to bring the entire facts and material on record and not to withhold some part of it, to facilitate the Trial Court to reach a just decision---Trial Court, therefore, had rightly dismissed the application of the complainant---Revision petition was dismissed in limine accordingly. [p. 1354 J A Sardar Khurram Latif Khan Khosa for Petitioner.
12. ' The facts leading to the institution of this petition are that Muhammad Anwar, Bahawal Sher and Noor Muhammad respondents Nos.2 to 4 are facing trial in the case F.I.R. No,197 of 1998 at Police Station Langarana, District Jhang under sections 302, 109, 148 and 149, P.P.C. Registered on the complaint of the petitioner before learned Additional Sessions Judge, Jhang. The petitioner in the course of trial submitted an application to give up Ishtiaq Rasool, S.-I., Muhammad Yasin, Inspector and Umar Hayat, Inspector, S.H.O. Of Police Station Langarana as prosecution witnesses who had also carried out some investigations in this case and whose names figured as witnesses in Column No,6 of the report under section 173, Cr.P.C. The D.D.A. Conducting the prosecution of the case did not support the petitioner's application and consequently after hearing the complainant and the D.D.A. Vide impugned order, dated 13-10-2003 the learned Additional Sessions Judge, Jhang dismissed the petitioner's application seeking to give up the said three witnesses. Feeling aggrieved by the same this petition has been filed.
2. It has been mainly argued on behaif of the petitioner that the learned trial Court has rejected the petitioner's application by exclusively considering the provision of section 265-A, Cr.P.C. Without adverting to the provision of section 265-F(2), Cr.P.C. Which stipulates that while recording the prosecution evidence the Court shall ascertain from the Public Prosecutor or as the case may be from the complainant the names of any person likely to be acquainted with the facts of the case and are able to give evidence for the prosecution and shall summon such person to give evidence before it and thus, under this provision it is prerogative of the complainant, who is petitioner, to name the persons who are to be produced as prosecution witnesses.
3. Chapter 12-A of Cr.P.C. Commencing from 265-A to 265-N deals with the trial before the High Court and the Court of Sessions. These trials include on complaints and as well as on police report under section 173, Cr.P.C. Section 265-C, Part I stipulates the supply of statements and documents to be given to the accused in their trials on police report under. Section 173, Cr.P.C. Whereas section 265-C, Part II stipulates the procedure to be followed in cases instituted by a private complaint.
13. Section 265-F(2), Cr.P.C., therefore, is applicable to the trial of cases instituted on private complaint and as well as on police report under section 173, Cr.P.C. The present case has been instituted against the respondents on a police report and section 265-A stipulates that in every trial before a Court of Session initiated upon a police report the prosecution shall be conducted by a Public Prosecutor. Under section 265-F(2) the Court shall ascertain from the Public Prosecutor or as the case may be from the complainant the names of persons who are to be produced as the prosecution witnesses. Section 265-A and section 265-F(2) read together will, therefore, mean that in cases instituted upon police report the Court shall ascertain from the Public Prosecutor the names of persons whom he wishes to produce as prosecution witnesses and shall summon said persons to give evidence whereas the word complainant figuring in section 265-F(2) ibid com otes to the complainant in the complaint case, therefore, only in case instituted upon private complaint it is prerogative of the complainant to name the witnesses whom he would intend to produce whereas in the case of cases instituted upon police report under section 173 (ibid) it is right of the Public Prosecutor to name the persons who are to be produced .As prosecution witnesses. The complainant through his application intended to give up Investigating Officers as P. Ws. Whom the learned D.D.A considered necessary to be produced in order to bring the entire facts and material on record and not to withhold some part of it, to facilitate the trial Court to reach a just decision, therefore, the trial Court had rightly dismissed the petitioner's application and there is no force in this petition. It is dismissed in limine.
14. Revision .