JUDGMENT
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No.S-147 of 2021
Before:
Mr.JusticeAmjad
Ali Sahito.
01. For orders on office objection at Flag 'A'
02. For orders on M.A No. 9656/2021 (Ex)
03. For hearing of main case.
12.01.2022
Mr. Shafi Muhammad Mahar D.P.G for Appellant.
-.-.-.-.-.-.-.-.-
01. Deferred.
02. Exemption is granted subject to all just
exceptions.
03. The facts in brief
necessary for disposal of instant acquittal appeal are that ON 23.07.2019 AT
1430 hours complainant ASI Sher Khan Bozdar lodged FIR at P.S Jarwar alleging
that on the same day he along with other police officials named in the FIR were performing their
election duty at Polling Station No.243 of NA‑205, District Ghotki, there
at about 1040 hours accused MPA HaleemAdil Shaikh along with 14/15 unknown
persons came there, started to harass voters, deterred police staff and
attempted to enter into Polling Station. It was also alleged that accused
persons misbehaved and leveled false allegation upon complainant party, then
accused went away and complainant lodged FIR after the notice was taken in the
matter by the Election Commissioner Sukkur.
4.
After completing the investigation, Investigation Officer submitted the challan
and after completion of all the legal formalities the trial court framed the
charge against the accused to which they pleaded ‘not guilty’ and claimed to be
tried.
5. At the trial, the prosecution examined P.W-1,ASI
Sher Khan Bozdar at Exh. 03 who produced FIR at Exh. 3-A, PW-2/mashirJaved
Ahmed was examined at Exh.4 who produced mashirnama of site inspection at
Exh.4-A, PW-3 ASI Muhammad Ameen was examined at Exh.5 who produced letter of
arrest of accused, mashirnama of arrest, application of Jail Authority and Jail
Certificate of accused at Exh.5-A to 5-D respectively. PW-4 SIP Abdul Waheed
(Author and Investigating Officer) at Exh.6 who produced roznamcha entries at
exh.6-A to 6-C respectively. PW-5 Abdul Waheed (mashir of arrest) was examined
at Exh.7. Thereafter, prosecution closed its side.
6. Trial Court recorded statements of accused under
section 342 Cr.PC wherein he denied the prosecution allegations, claimed his false
implication in the case.
7. After assessment of evidence learned trial court
has passed the above impugned judgment which is assailed before this Court
through instant criminal acquittal appeal.
8. Learned Deputy Prosecutor
General on behalf of appellant contended that all the witnesses have fully
supported case of prosecution but their evidence was not appreciated by the
learned trial court; that there are minor contradictions in the evidence of
witnesses and on the basis of minor contradictions, accused were acquitted;
that learned trial court has committed illegality while acquitting the respondents
and there was huge evidence for conviction of respondents.
9. The case of
prosecution is that on 23.07.2019 complainant ASI Sher Khan Bozdar along with
his other police officials namely HC Nisar Ahmed, PC Javed Ahmed, PC Imran Ali,
PC Mushtaque Ahmed and PC Muhammad Akram were performing theit election duty at
PS No.243 of NA-205, District Ghotki
when at 10.40 a.m accused MPA HaleemAdil Shaikh along with 14/15 unknown
persons came there and started to harass voters, deterred police officials in
performing their duty and attempt to enter in Polling Station. On interception of
the police to enter the accused in Polling Station, accused persons misbehaved
and leveled false allegations upon complainant party, ultimately FIR was lodged
by police after the notice in the matter was taken by Election Commissioner
Sukkur.
10. During the evidence
recorded before trial Court, complainant in his evidence has admitted that
accused (HaleemAdil Shaikh) did not use
abusive language with them and also did not issue any threat. Sole witness PC
JavedAhmed although in his evidence has deposed that he was misbehaved at the
hands of accused persons but in his cross examination he did not depose about
any misbehaved word uttered by accused HaleemAdil Shaikh. Furthermore
complainant, sole witness and Investigating Officer in their cross examination
stated that no voter complained with them against accused and even no any voter
was cited as witness nor examined by the prosecution in order to corroborate the
prosecution case. It is a matter of record that lodgment of FIR was issued on
the complaint of Presiding Officer of Polling Station but none from polling
staff has been produced as witness in the case. Complainant and witness alleged
in FIR and deposed in their evidence that accused/respondent was accompanied by
14/15 unknown persons but neither their names were disclosed nor any one being
unknown person was cited by I.O in the charge sheet, therefore, the allegation
of unlawful assembly went unproved. No original or its carbon copy of roznamchaentries
with regard to duty/movements of the police party and other actions in this
case allegedly to be performed by police party has been produced during the
evidence. Complainant ASI Sher Khan Bozdar deposed that there were 100 voters
at the place of incident/ Polling Station while sole witness of the case has
deposed that there were 200 voters and Investigating Officer deposed that there
were 400/500 voters but even than no any private witness has been cited as
witness in the case of prosecution nor any explanation in this respect was
given by the prosecution that for such reasons they could not associate any
private witness in order to attest the incident. In the present case only
police officials were examined by the prosecution before the trial Court and
there is no corroboration in this regard hence reasonable shadow of doubt is
casted on the truthfulness of the prosecution case.
11.
Ihave considered the above arguments and perused
the record. From perusal of judgment passed by the trial Court it appears that
the same is speaking one and does not suffer from any interference by this
Court. In these circumstances, the learned trial Court obviously was right to record acquittal
of the private respondents by extending them benefit of doubt and
such acquittal is not found to have been recorded in arbitrary or cursory
manner, which may call for interference by this Court.
In
case of The State and others vs. Abdul Khaliq and
others (PLD 2011 SC-554), it is held by
the Hon’ble Apex Court that;
“The scope of interference in appeal against acquittal is most
narrow and limited, because in an acquittal the presumption of innocence
is significantly added to the cardinal rule of criinal jurisprudence, that an
accused shall be presumed to be innocent until proved guilty; in other words,
the presumption of innocence is doubled. The courts shall be very slow in
interfering with such an acquittal judgment, unless it is shown to be perverse,
passed in gross violation of law, suffering from the errors of grave misreading
or non-reading of the evidence; such judgments should not be lightly interfered
and heavy burden lies on the prosecution to rebut the presumption of innocence
which the accused has earned and attained on account of his acquittal.
Interference in a judgment of acquittal is rare and the prosecution must show
that there are glaring errors of law and fact committed by the Court in
arriving at the decision, which would result into grave miscarriage of justice;
the acquittal judgment is perfunctory or wholly artificial or a shocking
conclusion has been drawn. Judgment of acquittal should not be interjected
until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal of the evidence a different conclusion could possibly be arrived
at, the factual conclusions should not be upset, except when palpably perverse,
suffering from serious and material factual infirmities”.
12. I am fully satisfied with appraisal of
evidence done by the learned trial Court and I am of the view that while
evaluating the evidence, the difference is to be maintained in appeal from
conviction and acquittal appeal and in the latter case, interference is to be made
only when there is gross misreading of evidence resulting in miscarriage of
justice. Learned counsel for the appellant failed to disclose any misreading
and non-reading of evidence. In the case of Muhammad Zafar and another v.
Rustam and others(2017 SCMR 1639), the Hon’ble Supreme Court of
Pakistan has held that:-
“We have
examined the record and the reasons recorded by the learned appellate court for
acquittal of respondent No.2 and for not interfering with the acquittal of
respondents No.3 to 5 are borne out from the record. No misreading of evidence
could be pointed out by the learned counsel for the complainant/appellant and
learned Additional prosecutor General for the State, which would have resulted
into grave miscarriage of justice. The learned courts below have given valid
and convincing reasons for the acquittal of respondents Nos. 2 to 5 which
reasons have not been found by us to be arbitrary, capricious of fanciful
warranting interference by this Court. Even otherwise this Court is always slow
in interfering in the acquittal of accused because it is well settled law that
in criminal trial every person is innocent unless proven guilty and upon
acquittal by a court of competent jurisdiction such presumption doubles. As a
sequel of the above discussion, this appeal is without any merit and the same
is hereby dismissed”
13. In
view of facts and reasons discussed above, the instant Criminal Acquittal
appeal is dismissed in limine.
J
U D G E
Irfan/PA
10.
On careful scrutiny of the evidence of complainant and PW
Shah Muhammad, who have deposed in their examination in chief that accused
persons having TT pistols,opened fires upon deceased Muhammad yousif but
surprisingly as per post mortem report only one injury of fire arm has been
observed by SMO. Moreover, three empties have been recovered from the place of
incident though deceased had received only one fire arm injury. Furthermore incident
has allegedly taken place in night time and identification was shown on the
light of motorcycle and the identification of accused by the complainant
party in the court after the lapse of eight years was doubtful. There was
delay of about 08 days in registration of FIR and the same has not been
explained properly. As regards to the source of information about the
involvement of the accused in the offence,the complainant and PW Shah Muhammad
have deposed that they came to know that accusedSobdar, Sono and Rabnawaz have
committed the murder of deceased Muhammad Yousif and have not disclosed during
their evidence as to how they came to know and who informed them about the
involvement of the accused persons. For the extra-judicial confession of
the accused persons before the complainant party that accused persons became
ready to pay compensation after admitting their guilt but they refused to
receive the compensation. However, nowhere PWs have mentioned the date, time
and place of extra-judicial confession made by the accused persons which
creates very serious doubt and the extra-judicial confession cannot be relied
upon without any independent corroboration and the same is weak type of
evidence.
11.
We have carefully examined the impugned judgment of the trial court and found
that the trial court discussed each and every piece of evidence produced by the
prosecution in depth.
12. It is well settled principles of law
that burden of proving the case is always upon the shoulders of prosecution and
prosecution is bound to prove the case beyond shadow of a reasonable doubt, and
if a single circumstance creates doubt in the case of prosecution it goes in
favour of accused and the benefit of doubt shall be extended to the accused not
as a matter of grace but as a matter of right as laid down by Honourable
Supreme Court of Pakistan in case of Tariq Pervaiz v. The
State (1995 SCMR 1345), Muhammad Akram v. The
State (2009 SCMR 230) and in case of Muhammad
Zafar and another v. Rustam and others (2017 SCMR 1639).
13. It is also a settled principle of law
that an appeal against acquittal has distinctive features and the approach to deal
with the appeal against conviction is distinguishable from appeal against
acquittal, because presumption of double innocence is attached in the latter
case. An order of acquittal can only be interfered with when it is found on the
face of it as capricious, perverse, arbitrary or foolish in nature, which are
lacking in this case. Reliance is placed on InayatUllah Butt v.
Muhammad Javed etc. (PLD 2003 SC 563), Mst.
Anwar Begum v. AkhtarHussain alias Kaka and 2 others (2017 SCMR
1710).
14. In view of above, the impugned
judgment seems to be an elaborate, speaking one hence does not suffer from
misreading, non-reading or non-appraisal of evidence, and it does not warrant
interference of this court.
15. Whatever is stated above, we have
reached at the conclusion that the acquittal of respondents does not suffer
from any illegality so as to call for our interference with the impugned
judgment. The learned trial Judge has advanced valid and cogent reasons for
passing a finding of acquittal in favour of respondents and we see no legal
justification to disturb the same in view thereof the instantcriminal acquittal
appeal is dismissed in limine.
It
is contended by learned counsel for the appellant that the learned trial Court
has erroneously acquitted the respondents without appreciating their
corroborative evidence andwithout lawful justification on the basis of improper
assessment of the evidence, therefore, such acquittal is liable to be examined
by this Court by way of instant criminal acquittal appeal.
Date of hearing: 11.01.2022.
Date of Judgment: 11.01.2022.
Appellant: Leehaz Ali Mangrio through Mr. Noor Muhammad
Memon, Advocate
Respondent No.1to9: None present.
Respondent No.11 : Mr. Shafi Muhammad Mahar, D.P.G.
J U D G M E N T
AMJAD
ALI SAHITO,
J-. Being aggrieved and dissatisfied with the judgment
dated 12.08.2021, recorded under Section 265-H (i) Cr.P.C. in favour of the
respondents No.1to9 by the learned Assistant Sessions Judge, Kandiaroin Sessions
Case No.207/2021 arising out of the FIR No.173/2020 for offence under sections
324, 337-A(iv), F(i), H(ii), 504, 147, 148, 149 PPC registered at PS Kandiaro,
District NaushehroFeorze, whereby the respondents 1 to 9 were acquitted from
the charge.
2. The case of the prosecution as depicted in
the FIR is thaton
18.10.2020 at 1130 hours accused persons shown in the FIR duly armed with
deadly weapons in prosecution of their common object on the instigation of
accused Abdul Aziz Mangrio, accused Hakim Ali fired from his gun at Safeer which
hit on his nose then all accused while raising slogans went away, ultimately
complainant and his witnesses took the injured Safeer and after getting medical
treatment and certificate went to Police Station and lodged FIR.
3. The charge was framed against
respondents/accused by the trial Court, to which they pleaded not guilty and
claimed to be tried.
4. At the trial, in order to establish
accusation against the accused, the prosecution examined complainant Leehaz Ali Mangio , P.Ws Waseem Ali Mangio, HC
Muhammad Khan Jatoi, PW Dr. SharjeelAsghar Arain, PW NiazHussainTanwari
(Investigating Officer), PW Injured Safeer who produced certain documents,
thereafter learned State counsel closed its side.
5.
Statements of the respondents/accused
were recorded under Section 342 Cr. P.C,
wherein they denied the prosecution allegations leveled
against them. However, neither they examined themselves on oath nor led defense
evidence.
6.
The learned trial Court, after
hearing the learned counsel for the parties and appraisal of the evidence,
acquitted the respondents/accused Aijaz Ali son of Ayaz Ali Mangrio, Noor Nawaz
alias Dil Nawaz son of Ayaz Ali Mangrio, Aziz alias Abdul Aziz son of Muhammad
Mangrio, Abdul Ghani son of Muhammad SachalMangrio, Ghaffar alias Abdul Ghaffar
son of Muhammad SachalMangrio, Ayaz Ali son of NawabMangrio, Ali Hyder son of
Muhammad RaheemMangrio and Hakim Ali son of Allah ObhayoMangrio vide judgment
dated 12.08.2021. The acquittal recorded by the learned trial Court has been
impugned by the appellant / complainant before this Court by way of filing the
instant Criminal Acquittal Appeal.
7.
Learned counsel for the appellant
argued that the impugned judgment is based on misreading and non-reading of
evidence, which is not maintainable; that complainant Leehaz Ali, P.Ws Waseem
Ali, Muhammad Khan and injured PW Safeer have implicated all the respondents /
accused for committing the above incident; that the learned trial Court has not
considered all the material points and acquitted the respondents / accused.
Lastly, he prayed that this appeal may be allowed and the respondents / accused
may be convicted in accordance with law.
8. Conversely, the learned D.P.G. while
supporting the impugned judgment argued that respondents are innocent and have
falsely been implicated.
9. I have heard the learned counsel for the appellant/complainant,
learned D.P.G for State and have gone through the evidence as well as impugned
judgment with their able assistance.
10. Learned
counsel for the appellant as well as learned D.P.G haveagreed that the criteria of interference in the judgment
against acquittal, is not the same as against the cases involving a conviction.
The scope of interference in appeal
against acquittal is narrow and limited for the reasons that in an acquittal,
the presumption of innocence is significantly added to the cardinal rule of
Criminal Jurisprudence that an accused shall be presumed to be innocent until
proved guilty. In other words, the presumption of innocence is doubled.
11. The
case of prosecution is that on 18.10.2020 complainant along with Safeer and
Waseem were coming from city towards their village on motorcycle, when they
reached at village Tharo Khan Kaleri, where they saw that all accused persons
Hakim Ali, Azeez, Naseeb, Ghani, Haneef, Ali Hyder, Ayaz, Aijaz, Noor Nawaz and
Ghaffar were standing there. They identified and saw accused Hakim Ali was armed with gun, Aziz armed with
Rifle, Naseeb armed with gun, Ghani armed with gun, Haneef armed with gun, Ali
Hyder was armed with a pistol, Ayaz was armed with pistol, Aijaz was armed with
a Rifle, Noor Nawaz was armed with repeater and Ghaffar was armed with pistol.
Accused Azeez instigated other accused by saying them to kill the complainant
party and not to live them alive. On such commutation, accused Hakim Ali fired
at Safeer which hit him on his nose from his right to left side which cross the
limits of nose. Then all accused while making aerial firing and raising slogans went away. Then complainant,
P.Ws Waseem and Khursheed took the injured Safeer to Police Station Kandiaro
wherefrom they obtained letter for medico legal treatment and certificate, went
to Kandiaro hospital where after some treatment the injured was referred to
Nawabshah Hospital. On 19.10.2020 complainant Leehaz Ali returned back from
hospital and lodged FIR at Police Station Kandiaro leaving the injured at
Nawabshah Hospital for necessary treatment.
12. Medical
Officer SharjeelAsghar Arain during his evidence recorded before trial Court
has deposed that on 18.10.2020 complainant LeehazMangrio brought injured
SafeerMangrio for treatment and medico legal certificate along with police
letter addressed to him. At aobut 11.50 a.m injured was unconscious. During
examination he found following injuries.
Injury No.1.entrance wound. An oval shaped
penetrating, punctured type of lacerated wound with slightly burnt e inverted
margins situated on left side of nose near the medial canthus of left eye
measuring about 01 cm x 0.7 cm x through and through on right side of nose.
Injury No.1(b) Exit wound-. A
punctured and lacerated type of wound with entered margins situated below the
tower eyelid of right eye measuring about 04.5 cm x 0.5 cm in continuation of
left side nose.
The
injured was referred to PMC Hospital Nawabshah for further management,
Radiological opinion and final Medico Legal Certificate. The nature of injury
was kept reserved due to patient was referred to PMC Hospital Nawab Shah for
radiological opinion and management. Probable duration of injuries was half
hour and kind of injury was shown to be discharge fire arm. Thereafter, injured
was referred to PMCH Nawabshah for further treatment, Two X-ray were obtained
form victim which were communicated to him, then he sent to PMCH Nawab Shah. On
01.01.2021 hje issued final Medico Legal Certificate on the basis of
radiological as well as CT report and injury was declared as Shujjahmunaqqillah
and the weapon used was of fire arm. He deposed that provision certificate was
issued on 19.10.2020.
13. During
the evidence PW-5 SIP NiazHussainTanwari, the Investigating Officer at Exh.12
has deposed that they obtained three empty shells of cartridges and three empty
shells of bullets from the place of vardat, they also secured one red colour
motorcycle from the place of vardat, such memo was prepared in presence of
mashirs at 0800 hours whereas mashir/witness has deposed that two red empty
shell cartridges were recovered, three empty bullets were also recovered from
the place of vardat and mashir/witness has also deposed in his evidence that
Khursheed took the empty shells of cartridges and bullets to the police.
Investigating Officer in his evidence recorded before trial Court has deposed
that police and he collected empty shells of cartridges and empty shells of
bullets. He also produced original letter dated 06.05.2021 at Exh. 12/E whereby
all members of Special Medical Board were of unanimous opinion that injuries No
(1) (a) & (b) sustained by the injured does not coincide with discharge from
fire arm and possibility of fabrication cannot be ruled out.
14. I
am fully satisfied with appraisal of evidence done by the learned trial Court
and I am of the view that while evaluating the evidence, the difference is to
be maintained in appeal from conviction and acquittal appeal and in the latter
case, interference is to be made only when there is gross misreading of
evidence resulting in miscarriage of justice. Learned counsel for the appellant
failed to disclose any misreading and non-reading of evidence. In the case of Muhammad
Zafar and another v. Rustam and others(2017 SCMR 1639), the Hon’ble
Supreme Court of Pakistan has held that:-
“We have
examined the record and the reasons recorded by the learned appellate court for
acquittal of respondent No.2 and for not interfering with the acquittal of
respondents No.3 to 5 are borne out from the record. No misreading of evidence
could be pointed out by the learned counsel for the complainant/appellant and
learned Additional prosecutor General for the State, which would have resulted
into grave miscarriage of justice. The learned courts below have given valid
and convincing reasons for the acquittal of respondents Nos. 2 to 5 which
reasons have not been found by us to be arbitrary, capricious of fanciful
warranting interference by this Court. Even otherwise this Court is always slow
in interfering in the acquittal of accused because it is well settled law that
in criminal trial every person is innocent unless proven guilty and upon
acquittal by a court of competent jurisdiction such presumption doubles. As a
sequel of the above discussion, this appeal is without any merit and the same
is hereby dismissed”
15. The
sequel of the above discussion is that I am satisfied with the appreciation of
evidence evaluated by the learned trial Court while recording acquittal of the
respondents/accused persons by extending the benefit of the doubt, which does not
call for any interference by this Court. Consequently, the instant appeal
merits no consideration and is dismissed accordingly.
16. These
of reasons of my short order announced in earlier part of the day whereby the
instant acquittal was dismissed.
JUDGE
Irfan/PA
ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl.Acquittal
Appeal.No.S-20 of 2020
Date of hearing |
Order with signature of Judge |
Dd
D
D
Djdjdj
Briefly
facts of the case that complainant Hamid Mazari got registered F.I.R on
16.11.2009, stating therein that on 09.11.2009, complainant along-with his
brother Muhammad Yousif, son Shah Muhammad and maternal nephew Sher Jan came to
Guddu city and after finishing their work they proceeded towards their house on
bikes. In the meantime at 07:30 pm, they reached near Zahir Peer at northern
bank of BS Feeder. Four unknown accused persons on two bikes were standing
there, the accused persons shouted upon complainant party to stop and due to
fear the complainant party alighted from their bikes. The complainant party on
the light of bikes saw that two accused persons were armed with TT pistols, one
was armed with K.K and one was with stick. It is alleged that two accused
persons opened fires with TT pistols upon Muhammad Yousif who died on spot
while complainant party due to empty handed remained silent. It is alleged that
then two of the accused persons pointed their TT pistol & K.K upon
complainant party to remain silent while two of the accused persons took away
the dead body of Muhammad Yousif on their bike towards western side via
northern bank of BS Feeder. After half an hour two of the accused persons left
complainant party while threatening not to make complaint and they went away on
their bike. The complainant party came back to the house, and searched the dead
body at own level, as such on 16.11.2009, they found the dead body of deceased
from northern bank, the complainant left the PWs over the dead body and went to
Ps and got registered the FIR.
3.
After completing the investigation, Investigation Officer submitted the challan
and after completion of all the legal formalities the trial court framed the
charge against the accused to which they pleaded ‘not guilty’ and claimed to be
tried.
4. At the trial, the prosecution examined P.W-1, M.O
Dr. Manzoor Ahmed Kalwar, he produced attested copy of post mortem report at
Ex.8-A, Insp. Ghulam Mustafa Mirani at Ex.12, he produce carbon copies of
memo of place of incident, attested copies of FIR, danistnama, memo of
inspection of dead body at Ex.13-A to 13-D, respectively, PW- PC Hatim Ali
Chachar was examined at 14, he is corpus bearer and produced carbon copy of
receipt of dead body at Ex.14-A, complainant Hamid was examined at Ex.14, he
produced his further statement, statement under section 164 Cr.PC at Ex.14-A
and 14-B along with attested copy of criminal miscellaneous application and
order thereon dated 7.4.2017, PW Shah Muhammad was examined at Ex.15, he
produced his further statement under section 161 Cr.PC and statement under
section 164 Cr.PC at Ex.15-A and B, respectively, ASI/I.O Faiz Muhammad Gadani
was examined at Ex.16, he produced memo of arrest of accused at Ex.16-A, Mr.
ShafquatHussainNaich, learned Judicial Magistrate, was examined at Ex.17, he
produced application of I.O to record statements under section 164 Cr.PC and
statement of PW Sher Jan under section 164 C.PC at Ex.17/A and 17-B,
respectively. Thereafter, prosecution closed its side.
5. Trial Court recorded statements of accused under
section 342 Cr.PC wherein they denied the prosecution allegations, claimed
their false implication in the case. However, accused Sobdardid not opt to
record his statement on oath so also did not opt to lead defence evidence to
disprove his case. However, accused Sono alias Sonzada and Rabnawaz opted to
record their statements on oath, which were recorded at Ex.25 and 26
respectively. However, they also did not lead any evidence in their defence.
6. After assessment of evidence learned trial court
has passed the above impugned judgment which is assailed before this Court
through instant criminal acquittal appeal.
7. Learned counsel for the
appellant contended that all the witnesses have fully supported case of
prosecution but their evidence was not appreciated by the learned trial court;
that there are minor contradictions in the evidence of witnesses and on the
basis of minor contradictions, accused were acquitted; that learned trial court
has committed illegality while acquitting the respondents and there was huge
evidence for conviction of respondents.
8. Learned Additional Prosecutor
General contended that there are several contradictions in the evidence of the witnesses
and learned trial court has rightly appreciated the evidence and passed the
acquittal judgment and he fully supported the judgment of trial court and
prayed for dismissal of acquittal appeal.
9.
We have heard learned counsel for the parties
and gone through the material available on the record with their able
assistance.
10.
On careful scrutiny of the evidence of complainant and PW
Shah Muhammad, who have deposed in their examination in chief that accused
persons having TT pistols,opened fires upon deceased Muhammad yousif but
surprisingly as per post mortem report only one injury of fire arm has been
observed by SMO. Moreover, three empties have been recovered from the place of
incident though deceased had received only one fire arm injury. Furthermore
incident has allegedly taken place in night time and identification was shown
on the light of motorcycle and the identification of accused by the
complainant party in the court after the lapse of eight years was
doubtful. There was delay of about 08 days in registration of FIR and the
same has not been explained properly. As regards to the source of information
about the involvement of the accused in the offence,the complainant and PW Shah
Muhammad have deposed that they came to know that accusedSobdar, Sono and
Rabnawaz have committed the murder of deceased Muhammad Yousif and have not
disclosed during their evidence as to how they came to know and who informed
them about the involvement of the accused persons. For the extra-judicial
confession of the accused persons before the complainant party that accused
persons became ready to pay compensation after admitting their guilt but they
refused to receive the compensation. However, nowhere PWs have mentioned the
date, time and place of extra-judicial confession made by the accused persons
which creates very serious doubt and the extra-judicial confession cannot be
relied upon without any independent corroboration and the same is weak type of
evidence.
11.
We have carefully examined the impugned judgment of the trial court and found
that the trial court discussed each and every piece of evidence produced by the
prosecution in depth.
12. It is well settled principles of law
that burden of proving the case is always upon the shoulders of prosecution and
prosecution is bound to prove the case beyond shadow of a reasonable doubt, and
if a single circumstance creates doubt in the case of prosecution it goes in
favour of accused and the benefit of doubt shall be extended to the accused not
as a matter of grace but as a matter of right as laid down by Honourable
Supreme Court of Pakistan in case of Tariq Pervaiz v. The
State (1995 SCMR 1345), Muhammad Akram v. The
State (2009 SCMR 230) and in case of Muhammad
Zafar and another v. Rustam and others (2017 SCMR 1639).
13. It is also a settled principle of law
that an appeal against acquittal has distinctive features and the approach to
deal with the appeal against conviction is distinguishable from appeal against
acquittal, because presumption of double innocence is attached in the latter
case. An order of acquittal can only be interfered with when it is found on the
face of it as capricious, perverse, arbitrary or foolish in nature, which are
lacking in this case. Reliance is placed on InayatUllah Butt v.
Muhammad Javed etc. (PLD 2003 SC 563), Mst.
Anwar Begum v. AkhtarHussain alias Kaka and 2 others (2017 SCMR
1710).
14. In view of above, the impugned
judgment seems to be an elaborate, speaking one hence does not suffer from
misreading, non-reading or non-appraisal of evidence, and it does not warrant
interference of this court.
15. Whatever is stated above, we have
reached at the conclusion that the acquittal of respondents does not suffer
from any illegality so as to call for our interference with the impugned
judgment. The learned trial Judge has advanced valid and cogent reasons for
passing a finding of acquittal in favour of respondents and we see no legal
justification to disturb the same in view thereof the instantcriminal acquittal
appeal is dismissed in limine.
These are
the reasons of our short order dated:01-12-2020.
JUDGE
JUDGE