2000 PLP 334 (YLR)

MUHAMMAD ASHRAF LEGHARI, J.‑‑‑This criminal acquittal appeal is directed by the Advocate‑General, Sindh, challenging the acquittal of respondents, Dildar, Siddiq and Roshan Ali passed by Judge, Anti‑Terrorism, Hyderabad Division, Hyderabad in Special Case No. 1 of 1999 arising out of Crime No. 53 of 1998 of Police Station, Kario Ganhwar, District Badin under section 365‑A/392, P.P.C.

2. The F. I. R. of this case was registered by complainant Jairam Das wherein he has stated that on 2‑12‑1998 his brother Mohinlal, Muhammad Rafiq Arain and Driver Deen Muhammad Khashkheli left village Kario Ganhwar for Talhar in a car at about 10‑00 a.m. The complainant went in search for them when they did not turn up till sunset. He could not get any clue and resultantly on I 1‑12‑1998 he lodged F.I.R.

3. He further asserted in his F.I.R. that one day prior to lodging F.I.R. one Allah Dino and Hajjan told him that they had seen two cars and his brother Mohinlal and others were being taken out from one car by some persons and boarded in another car. They further stated before the complainant that they would be able to recognise those two persons who had forcibly put his brother and others in the car. The complainant informed Kisanchand and Dr. Shamlal about the aforesaid facts. The complainant has shown Ali Khan Khoso and Roshan Ali Khoso as suspects.

4. During investigation, the complainant came to know about an encounter by dacoits with Khipro Police on 11‑12‑1998 and car of abductee Mohinlal was allegedly recovered by the police. The fact further came to the light that dacoit Karoo was killed in cross‑fire and Roshan Ali Khoso was caught at the spot whereas two other persons escaped from the scene.

5. The Police Kario Ganhwar on knowing these facts contacted Khipro Police and interrogated 9ccused Roshan Ali who disclosed that abductees Mohinlal and others are confined in the house of one Usman. The police proceeded to raid the house of Usman but on their way, they found some persons in cotton cultivation. The police surrounded the crop and held up five persons out of whom three were the abductees. The remaining two persons were armed with hatches who introduced them to be Dilbar and Siddiq. The abductees and the captured persons were taken to police station. The statements of abductees were recorded on the next day and identification test of Roshan Ali was held or 8‑1‑1999 through P.W. Mohinlal.

6. The challan was submitted on 2‑1‑1999. At the trial the alleged three abductees viz. Mohinlal, Muhammad Rafiq and Deen Muhammad were examined but they did not support prosecution case. Resultantly the accused were acquitted.

7. Mr. S. Jalil A. Hashmi learned A.A.‑G. has contended that the abductees have not supported the prosecution case due to the duress by accused party and that the circumstantial evidence was sufficient to award the conviction to accused. He further contended that car of abductee Mohinlal was recovered from the respondent Roshan Ali who had given information about the abductees. He further asserted that the aforesaid circumstantial evidence is sufficient for the conviction of respondents.

8. Three abductees have not supported the prosecution case and have refused to identify accused by stating in clear terms that they would not be able to identify the accused. They have stated that they cannot identify the accused persons in Court. Deen Muhammad is also abductee and the material witness of this case, who has also not supported the prosecution and has deposed that he would not be able to say as to who were the culprits and further stated that the accused present in Court were not seen by him at any time right from the abduction up to the release of abductees. The remaining P.Ws. Mashirs and the I.O are not material on the point of abduction.

9. So far the identification test of Mohinlal is concerned he has stated that he had identified Roshan Ali Khoso, mixed up with 6 persons and prior to it he was shown to him by the police in Badin lock‑up. He further stated that he had informed the police that he is not the real culprit of abduction, in spite of that identification test was held. The remaining witnesses are not material and the circumstantial evidence as pointed out by learned A.A.‑G. is not sufficient to carry I conviction, on the basis of which the acquittal could be converted in a judgment of conviction: The acquittal is based on well appraised judicial principles settled by the superior Courts.

10. The best witnesses for the prosecution were only three victims of the incident as stated earlier but they have turned down their own story and have exonerated the accused by saying that the accused present in the Court were not involved in the offence. This is an appeal against acquittal and the consideration for appeal against acquittal and an appeal against conviction are altogether different. The principles have been laid down by the apex Court in a case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 wherein their lordships have held as under:‑‑‑ (i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence; (ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence, it may be tempted to come to a different conclusion; (iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere; (iv) that unless the judgment of acquittal perverse and the reasons therefor re artificial and ridiculous, the Supreme Court would not interfere; and (v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose." The same view was earlier taken by the Hon'ble Supreme Court in a case of Yar Muhammad and 3 others v. The State 1992 SCMR 96 as under:‑‑‑ "The High Court was hearing an acquittal appeal and the principles for 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 Curt is always slow unless it feels that gross injustice has been done in the administration of criminal justice."

11. We find that the trial Court has rightly acquitted the respondents and the principles for setting aside order of acquittal are now well‑settled. The impugned judgment is neither perverse, illegal, ridiculous nor the perusal of evidence leads to the guilt o accused and nowhere else. There has been no misreading of evidence, which could be said to have caused miscarriage of justice. The judgment of acquittal is in consoaance to the settled principles of administration o criminal justice. The reasoning is sound and cogent which appears to be in accordance with law and the principles governing the safe administration of criminal justice. The view also gets support from cases of Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438 and State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC

408. For the foregoing reasons we had dismissed this Special Anti‑Terrorism Acquittal Appeal in limine by a short order, dated 12‑11‑1999 and these are the detailed reasons for the same. N.H.Q./S‑2/K Appeal dismissed.