IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D- 01 of 2014.

Present: Mr. Justice Khadim Hussain M. Shaikh.

Mr. Justice Amjad Ali Sahito.

Appellant: Raja Maqsood Ahmed, through Mr. Habibullah G. Ghouri, Advocate.

Respondent: 1. The State, through Mr. Khadim Hussain Khooharo, Addl. P.G.

2. Khanoo alias Khan Muhammad.

None present for respondent No.2.

Date of hearing: 29.05.2018.

Date of judgment: 29.05.2018.

JUDGMENT

AMJAD ALI SAHITO, J-. This acquittal appeal is directed against the judgment dated 22.01.2014, passed by learned Additional Sessions Judge, Kandhkot, in Sessions Case No.274 of 2010 Re; State v. Khanoo alias Khan Muhammad, arisen out of F.I.R No.71 of 2004 of Police Station A-Section Kandhkot, registered for offences punishable under Sections 302, 337-H (2), 148, 149 P.P.C, whereby the learned trial Court had acquitted the accused/ respondent No.2 by extending benefit of doubt. The appellant/ complainant having aggrieved and dissatisfied with the impugned judgment has filed instant appeal.

2. Precisely, facts of prosecution case are that on 17.04.2004, at about 07.00 p.m. at the land of Parvez Ahmed Khan, near his village Haji Hamzo Khan Golo, accused Khanoo, Meva, Danga having hatchets, Rahim-dad, Shahban, Ghulam Muhammad and Noor Hassan on the dispute over spoiling of crop by the cattle of accused Khanoo, who inflicted hatchet blow to his maternal uncle Khair Muhammad on his right side of head with intention to commit murder, while saying that they would not spare him, accused Meva and Dhingan also inflicted hatchet blows to him on his left and lower side of head, accused Rahim Dad, Shahban, Ghulam Muhammad and Noor Hassan inflicted lathi blows to him on his back side of palm, elbow of right arm, right hand and upper side of right arm. The complainant and P.Ws Khair Dil and Noor Hassan rescued Khair Muhammad by entreating the accused persons in the name of Holy Quran, then all the accused went away towards their houses. The injured Khair Muhammad become unconscious on receiving injuries, as such he was taken to police station, where complainant reported the matter to police and F.I.R was registered under Sections 324, 337-F (i), 148, 149 and 504 P.P.C.

3. However, the injured succumbed to his injuries during treatment in hospital; as such challan was filed while adding section 302 P.P.C, against accused Khanoo and Mevo, while names of rest of accused were placed in column No.II of the challan sheet. Who were ultimately joined as all in the case and one of them namely, Dhingan was acquitted of the charge vide judgment dated 13.5.2010.

4. After usual formalities, the charge was framed against the accused/ respondent No.2, to which he pleaded not guilty and claimed to be tried.

5. At trial, the prosecution examined H.C Shah Dino as Ex.4. Complainant Raja Maqsood Ahmed at Ex.5. PW Noor Hassan at Ex.6. PC Taj Muhammad at Ex.7, he produced memo of arrest of accused at Ex.7-A. Haq Nawaz at Ex.8. Tapedar Aftab Ahmed as Ex.9. PC Barkat Ali was examined at Ex.10. Then, statement of medical officer Dr.Amanullah Channa recorded in earlier proceedings against accused Dhingan was adopted. Thereafter the prosecution side was closed by the learned Prosecutor. The statement of accused was recorded under Section 342, Cr.P.C. in which he denied the prosecution case and pleaded his innocence. He, neither examined himself on oath, nor led defence evidence.

6. After hearing learned counsel for the respective parties, the trial Court acquitted the respondent No.2 by extending benefit of doubt in his favour vide impugned judgment. Hence this appeal.

7. We have heard learned counsel for parties and with their assistance have gone through the evidence produced by the prosecution at the trial.

8. Learned counsel for appellant contended that trial Court has not appreciated the evidence according to principles of evaluating the evidence in criminal cases. He further contended that prosecution has produced trustworthy evidence in the trial Court but the learned trial Court has not appreciated the evidence and erroneously extended benefit of doubt in favour of accused/ respondent No.2. He further contended that the prosecution had proved case beyond any shadow of doubt and the acquittal of the accused/ respondent has caused miscarriage of justice. Per learned counsel the case of co-accused Dhingan, who was acquitted in earlier proceedings, was on different footings, but even then the trial Court has extended benefit of this situation and acquitted the respondent No.2. He lastly contended that the impugned judgment may be set-aside and the accused/ respondents may be convicted.

9. On the other hand learned A.P.G. appearing for the State supported the impugned judgment and contended that the learned trial Court rightly extended benefit of doubt in favour of respondent No.2.

10. It is matter of record that, earlier in time the case proceeded against co-accused Dhingan and prosecution led its evidence; ultimately on conclusion of trial and hearing the parties, the above-named co-accused was acquitted of the charge by learned trial Court vide its judgment dated 13.5.2010 by extending him benefit of doubt. It is also matter of record that, the complainant has not challenged the acquittal of the said co-accused. So for as case of respondent No.2 is concerned, it is on same footings to that of co-accused, who has already been acquitted of the charge. The testimony of the prosecution witnesses (who were already examined at trial against co-accused Dhingan) had been dis-believed and discarded by the learned trial Court, therefore, there was no reason for the learned trial Court to believe the evidence of same set of witnesses, whose evidence was already dis-believed and discarded.

11. So for as the question, whether the evidence recorded in earlier proceedings can be considered and applied upon successive proceedings. In this regard, provision of Article 47 of the Qanun-e-Shahadat, 1984, is very much clear, according to which the evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding. It would be conducive to reproduce the relevant article, which reads as under:

47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court consider unreasonable;

Provided that;

the proceeding was between the same parties or their representatives-in-interest;

the adverse party in the first proceeding had the right and opportunity to cross-examine;

the question in issue were substantially the same in the first as in the second proceeding.

Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.

12. Since, in earlier trial/ proceedings against co-accused Dhingan the prosecution led its evidence, which was dis-believed and discarded by the learned trial Court, which resulted into acquittal of above-named co-accused by extending him benefit of doubt, as such the trial Court was fully justified in acquitting the accused/ respondent No.2 in subsequent proceedings while giving its observations upon earlier evidence and rightly come to a conclusion that the prosecution could not establish the case against accused/ respondent No.2.

13. It is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR-1345), Ghulam Qadir and 2 others v. The State (2008 SCMR-1221), Muhammad Akram v. The State (2009 SCMR-230) and Muhammad Zaman v. The State (2014 SCMR-749).

14. It is also a well-settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remains slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477), the Honourable apex Court observed as under:-

“that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non reading of evidence… Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.

15. Similar view was re-iterated by the Honourable apex Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-

“Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.”

16. The upshot of above discussion is that, the impugned judgment is well founded and well-reasoned, based on proper appraisal of the evidence and thus it calls for no interference by this Court. Even otherwise, it re-iterated that the acquittal recorded by the Court of competent jurisdiction, would not be disturbed until there is any misreading or non-reading of the evidence resulting into miscarriage of justice, which, as elaborated above, has not been noticed here. Consequently, the instant appeal is dismissed accordingly.

17. These are the detailed reasons of short order dated 29.05.2018, announced by us.

JUDGE