2016 PLP 143 (YLRN)

S. 417(2-A)

Appeal against acquittal

Scope of interference was narrow and limited for the reasons that in an acquittal, the presumption of innocence was significantly added to the cardinal rule of criminal jurisprudence that accused would be presumed to be innocent, until proved guilty

Presumption of innocence was double

Courts would be very slow in interfering with judgment of acquittal unless it was shown to be perverse, passed in violation of law, suffering from errors of grave misreading or non-reading of evidence

Heavy burden lay on the prosecution to rebut the presumption of innocence, which accused had earned and attained on account of acquittal

Judgment of acquittal could not be interfered simply for the reason that on reappraisal of evidence a different conclusion could be arrived at. [Para. 10 of the judgment]

Ss. 302 & 380

Criminal Procedure Code (V of 1898), S.417(2-A)

Qatl-i-amd, theft in dwelling house

Appeal against acquittal

Appreciation of evidence

Burden of proof

Incident was un-witnessed

Case of prosecution was that before commission of offence, deceased were given sedative substance, but medical report, did not corroborate the same

Trial Court had rightly observed that incident occurred on a specified date, but nothing was on record that finger prints on the glass (in which the sedative substance was given), were preserved through technical means till the same was examined by finger prints expert

No evidence was produced to show that purse and chain of gold produced by accused belonged to the deceased

Incident took place inside the flat; no evidence was on record to show that deceased were lastly seen alive in the company of accused shortly before the commission of offence

Even otherwise, last seen evidence was not sufficient to sustain charge of murder as such evidence required to link accused with the murder i.e. incriminating recoveries at the instance of accused; strong motive or proximity time of last seen and time of murder

Present was a case of circumstantial evidence; and pieces of circumstantial evidence were not supported by independent corroboration

No one had seen both the deceased alive in the company of accused in the flat

Judgment of acquittal did not suffer from errors of grave misreading or non-reading of evidence; there were completely broken links of chain to connect accused with the commission of murder

Benefit of doubt, was rightly extended to accused

Trial Court had based acquittal on sound reason

Appeal against acquittal having no merit, same was dismissed, in circumstances. [Paras. 11 and 14 of the judgment] State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo 1993 SCMR 585; The State v. Manzoor Ahmad and others PLD 1966 SC 664 and Muhammad Hussain v. State 2011 SCMR 1127 ref. Muhammad Iqbal Awan, A.P.G. for the State. JUDGMENT NAIMATULLAH PHULPOTO, J.

Respondent Tanvir @ Zulifi @ Malik Tanvir was tried by learned Sessions Judge, Karachi East in Sessions Case No. 300 of 2000, for offences under sections 302/380, P.P.C., bearing Crime No. 149 of 2000, registered at Police Station Gulistan-e-Johar, Karachi. By judgment dated 18th, July 2005, Respondent/accused, by extending benefit of doubt, was acquitted. Appellant/complainant Irfan Abbas filed Criminal Acquittal Appeal No. 349 of 2005, challenging the acquittal recorded in favour of Respondent/accused by the Trial Court.

2. Brief facts of prosecution case are that Mirza Rizwan Abbass and his mother Mst. Kaneez Fatima (now both deceased), complainant and other family members used to reside in the same flat. It is alleged that accused was a friend of Mirza Rizwan Abbass and was known to all family members through him and was introduced as an exorcist of high class. He had undertaken to help Mirza Rizwan Abbass in coming out of his ordeal by committing fraud in respect of a plot situated in Gulistan-e-Johar and assured to give deceased 2-3 other plots. In this connection, it is alleged that about 20 days back Mirza Rizwan Abbass had brought a brief case of the accused and kept in a room with the direction of accused that nobody should touch it and then a day prior to the incident Mirza Rizwan Abbass had informed the family members that the accused would come on 20.06.2000 at Flat and conveyed his instructions to keep all other family members away except both of the deceased persons, in order to exorcise there. In compliance of such instructions the complainant sent his family members to his in-laws, whereas his sister went to a nearby park whereas PW Salman Abbas was on his duty. Complainant was present but outside the apartment at the ground floor near main gate leaving both the deceased at flat. It is alleged that accused arrived in Flat at about 7:15 p.m. and was seen by the complainant outside of flat. At about 10.15 p.m., electricity of the area went off which was restored after 20-25 minutes. In the meanwhile, PW Salman Abbas brother of deceased Mirza Rizwan Abbass also returned from his duty so also his sister from the park and the complainant sent both of them to flat to enquire about the situation as the accused was in Flat for a long time. Both of them found the flat locked and even on ringing call bell none responded. The lock was got opened and they went inside the flat and saw both Mirza Rizwan Abbass and Mst. Kaneez Fatima lying dead in the drawing room and bed room. Their hands and feet were tied. Two Churries having blood staines were also lying near dead bodies. Doors of Almirah were also opened, on checking cash and gold ornaments were found stolen. Complainant lodged report. It was recorded vide Crime No. 149 of 2000 under sections 302/380, P.P.C. at Police Station Gulistan-e-Johar, Karachi.

3. After usual investigation challan was submitted against the accused under sections 302/380, P.P.C. Case was sent up to court of Session for trial.

4. Charge was framed against the accused at Ex.

2. Accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined the following witnesses:

1. P.W-1 Dr. Abdul Rasheed at Ex.5

2. P.W-2 Irfan Abbas at Ex. 6

3. P.W-3 Dr. Yasmeen at Ex.7

4. P.W-4 Salman Abbas at Ex.9

5. P.W-5 ASI Muhammad Latif at Ex.10

6. P.W-6 Muhammad Sajid at Ex.11

7. P.W-7 Muhammad Afzal at Ex.12

8. P.W-8 Muhammad Tariq at Ex. 14

9. P.W-9 SIO Muhammad Fayaz Khan at Ex. 14

10. P.W-10 Inspector Raja Amjad at Ex. 15

11. P.W-11 Nusrat Faheem at Ex.16 Thereafter, prosecution side was closed vide statement at Ex. 19.

6. Statement of accused was recorded under section 342, Cr.P.C. at Ex.

21. Accused claimed his false implication in this case and raised plea that complainant party was aggrieved from him as deceased Mirza Rizwan Abbass had transferred his plot about nine months back to accused. Accused however, examined himself on oath at Ex.22 wherein he stated that deceased Rizwan Abbas was his good friend. Six months prior to the incident, he had purchased plot from said deceased due to which brothers of the deceased were annoyed with him. He further stated that on the day of incident, he was in Punjab on account of engagement of his brother. Accused stated that on 21.06.2000 he came back to Karachi where he was informed about the said incident. He further stated that he went to one Major Munaf Minhas and said Major Munaf produced him before police.

7. Learned trial Court after hearing the learned counsel for the parties and on assessment of evidence, acquitted the accused vide judgment dated l8th July 2005 as stated above.

8. Mr. Khawaja Naveed Ahmed Advocate for the appellant/complainant assisted by Mr. Muhammad Iqbal Awan learned APG, argued that Respondent/ accused was seen by P.W Irfan while entering into the Flat of deceased. It is further argued that after arrest of accused, he had produced his blood stained clothes and purse of the deceased. It is also argued that there were finger prints of accused on the glass lying in the Flat of the deceased. It is submitted that there was sufficient circumstantial evidence against the accused to connect him in the commission of the offence. The trial court without assigning the reasons recorded acquittal in favour of the Respondent/ accused.

9. On the other hand, Mr. Malik Altaf Jawaid Advocate for the Respondent/ accused argued that Respondent was not seen lastly with the deceased persons; it was unseen incident and nothing incriminating has been recovered from the possession of the accused. P.Ws were closely related to deceased persons and interested. No corroborative piece of evidence has been produced by prosecution. Mr. Malik Altaf further argued that in the appeal against acquittal while evaluating the evidence, distinction is to be made in the appeal against acquittal and appeal against acquittal. Interference in the latter case is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Lastly, he has argued that this was not the case of misreading of evidence, but each and every piece of evidence has been fully discussed by the trial court and prosecution case was found highly doubtful. In support of his contentions he relied upon the cases State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585), The State v. Manzoor Ahmad etc. (PLD 1966 SC 664) and Muhammad Hussain v. State (2011 SCMR 1127).

10. 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, presumption of innocence is doubled. It is settled law that courts will be very slow in interfering with such an acquittal judgment unless it is shown to be perverse, passed in violation of law, suffering from errors of grave misreading or non-reading of 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 acquittal. In number of dictums laid down by the Honourable Supreme Court it has been categorically laid down that such judgment should not be interjected unless the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. We are not inclined to interfere simply for the reason that on the reappraisal of 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.

11. Present incident was un-witnessed. According to the case of prosecution P.Ws Irfan and Salman brothers of deceased were standing in the premises of the flats and Respondent/accused returned from the flat having his blood stained clothes. Trial court has rightly observed that it was unbelievable that both witnesses did not make attempt to catch hold the accused and let him to go escort free. There is also substance in the finding record by the trial Court that it was not possible that both deceased before done to death were tied by their hands and feet then slaughtered by a single person/accused. It is also the case of prosecution that before commission of the offence, deceased were given sedative substance but medical report did not corroborate the same. As regards to the finger prints of the accused on glass are concerned, trial court has rightly observed that incident occurred on 20.06.2000, but there was nothing on record' that finger prints on the glass were preserved through technical means tell the same were examined by finger prints expert. No evidence was produced to show that purse and chain of gold produced by accused belonged to deceased Rizwan. Incident took place inside the flat; there was no evidence that deceased were lastly seen alive in the company of the accused shortly before the commission of the offence. Even otherwise, last seen evidence itself is not sufficient to sustain charge of murder and such evidence further requires to link accused with the murder i.e. incriminating recoveries at the instance of accused, strong motive or proximity time of last seen and time of murder. The trial Court in Paras 37 and 38 of the judgment has recorded the following reasons for acquittal:

37. Keeping in view the above guiding principles laid down by the Honourable Supreme Court, the case of the prosecution against the accused in highly improbable and incapable of explanation upon any other reasonable hypothesis than his guilt. A man having good relations with one of the deceased without any motive of whatsoever nature why will slaughter not only the said friend but also his mother in their own house at such a time when there is every possibility of his capture red handedly at such a place which is a residential complex having hundreds of flats. It appears from the facts and circumstances of the case brought on record that the incident was unwitnessed and the accused who has got a plot transferred in his favour from the deceased No.1 has become a victim of presumption, conjectures and surmises and the police has tried to concoct evidence against him to satisfy the complainant party related with one Dr. M.A. Shah famous personality of the City only to please and satisfy him.

38. As mentioned above on this point also there is only statement of the complainant that when he reached at the place of the incident both of the doors of almirah were found lying open in the room of the deceased No.2. In his 154, Cr.P.C. statement he had stated that he would give details with regard to theft but he never gave any such details. However in his evidence he stated that cash of Rs.850,000/-, 2 Cameras, gold ornaments, 2 purses and other articles were missing and such list was provided to the Investigation officer. This statement was even not corroborated by his brother P.W. Salman Abbas as nothing in this regard was deposed by him. Similarly the Investigation Officer has also denied that any list of the stolen articles was provided to him by the complainant. Besides this no recovery of any stolen articles from the accused or on his pointation was made therefore there is no tangible evidence to hold that any theft was committed in the house of the deceased by the accused therefore this point is also decided in negative.

12. In the case reported as Muhammad Hussain v. State (2011 SCMR 1127) Honou.rable Supreme Court observed as under: Admittedly, it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself be sufficient to establish the guilt. However, each circumstance shall be so connected with each other that it shall make one complete chain, without their any broken link. As it has been discussed hereinabove, there are completely broken links of chain to connect the appellant with the commission of murder of deceased, therefore, he would be entitled to benefit of doubt. For the forgoing reasons, we allow this appeal, set aside the conviction/sentence recorded against the appellant Muhammad Hussain he is acquitted of the charge of murder. As a consequence, he is directed to be released forthwith, if not required in any other case. "

14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence. 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. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."

14. In view of above stated circumstances, we are satisfied that it was a case of circumstantial evidence and pieces of circumstantial evidence were not supported by independent corroboration. No one had seen both deceased alive in the company of the accused in the flat. Acquittal judgment did not suffer from errors of grave misreading or non-reading of evidence. There were completely broken links of chains to connect the accused in the commission murder of both deceased as such benefit of doubt was rightly extended to him. Trial court has based acquittal on sound reasons. In the consequence, appeal has no meit and the same is dismissed. These are the reasons for short order announced by us on 25th January, 2016. HBT/I-7/Sindh Appeal dismissed.