2010 P Cr (PLP)

AHMED ALI SHAIKH, J.

Through this Criminal Acquittal Appeal, the appellant has impugned the order dated 13-8-2009 passed Dy learned Additional Sessions Judge, Kotri, District Jamshoro in Sessions Case No.77 of 2000, whereby he has allowed the application under section 265-K, Cr.P.C. made by the respondents Nos.2 to 7 acquitting them., inter alia on the ground that the prosecution has failed to make out a case against the, accused persons.

2. On 6-2-1999, one Zaryab Khaskheli lodged report at Police Station Jamshoro stating therein that he, along with his friends namely Ashique Ali, Rashid Ali, Dildar Ali, Hussain Jarwar and Wali Muhammad, were standing at Arts Faculty, University of Sindh, at about 1115 hours, when accused Shuban Jakhrani, Dhani Bux Solangi, Abdullah S000mro, Fayaz Janwri, Sanam 'Channa, Akber Mari, Kehar Ansari, Asghar Narejo and Niaz Kalani along with four unidentified persons came there. Out of them, Shuban Jakhrani, Fayaz Janwiri, Dhani Bux Solangi and Sanam were armed with pistols, Abdullah Soomro was armed with kalashnikov while rest of the accused had Dandas. All the accused belong to Jeay Sindh Student Federation. On the instigation of accused Niaz Kalani, Asghar Narejo and Kehar Ansari, accused Shuban Jakhrani fired from his pistol upon Ashique Junejo, which hit him on his side of the armpit, who after raising cry fell down. Other accused also fired in the air. The accused armed with Dandas caused Danda blows to Wali Muhammad and after abusing complainant party, they went towards Hostel, meanwhile police reached there and removed Ashique Junejo to LMCH Jamshoro as he was unconscious, where doctor declared him as dead.

3. During course of investigation and trial, respondents Nos.2 to 7 were arrested and were subjected to trial while accused Shuban Jakhrani, Akber Mari and Abdullah Soomro being absconders were declared proclaimed offenders by the trial Court.

4. Charge was framed and the respondents No.2 to 7 pleaded not guilty and claimed trial.

5. To prove its case, the prosecution examined P.W. Zaryab, who was complainant, P.Ws. Rashid Ali, Wali Muhammad and Javed Aslam MLO LUH Hyderabad besides three Mashirs namely Zahid Hussain, Abdul Hakeem and Ghulam Sarwar.

6. After examining the aforesaid prosecution witnesses, the respondents Nos.2 to 7 made application under section 265-K, Cr.P.C. which application after hearing was, allowed by the trial Court and the respondents Nos.2 to 7 were acquitted while case against absconding accused Shoban Jakhrani, Akber Mari and Abdullah Soomro was kept on dormant file, which order is impugned in these proceedings.

7. It is inter alia contended by the learned counsel for the appellant that the impugned order was passed in haste, in mechanical manner and without taking into consideration the evidence adduced by the prosecution at the trial. The learned counsel was asked to pinpoint illegality or infirmity in the impugned order but he could not do so. He generally contended that there was enough material on the record brought by the prosecution and impugned order in the face of such material ought to be set aside.

8. Syed Meeral Shah, the Deputy Prosecutor-General Sindh for the State has supported the impugned order on the ground that it is a` proper order and has been passed in accordance with the settled principle of law.

9. Perusal of depositions of P.Ws. reveal that the complainant as well as eyewitnesses did not allege in their evidence that any of the respondents had caused any injury to the deceased Ashique Ali. In the F. I. R. it was alleged that accused/respondents were armed with pistols and Dandas but in his deposition, the complainant has stated that they ' were empty-handed at the time of occurrence. Eye-witness Rashid All in his cross-examination has stated, "It is a fact that the police has not obtained my signature on any paper nor recorded my statement". The evidence of P.W. Wali Muhammad is also on same line. In his cross-examination in response to a suggestion, he replied that "Police 'did not record my statement but obtained my signatures on blank gapers at Hospital. They did not disclose as to what would they writ but stated that they will complete, legal formalities".

10. In view of the above admission on the part of the prosecution witnesses, who claimed to be eye-witnesses of the occurrence, coupled with the contradictory version of the complainant, leads to the conclusion that the prosecution could not succeed to prove its case against the respondents Nos.2 to

7. Moreover, per prosecution, it was alleged that Shoban Jakhrani, has caused fatal blow to the deceased. In view of the above, we are of the view that conclusion reached by the learned trial Court was reasonable and based on cogent reasons and we do not find any infirmity in the impugned order. The scope of Criminal Acquittal Appeal has been interpreted by the Honourable Supreme Court in the case of "Munawar Shah v. Liaqat Hussain and others" reported in 2002 SCMR 713, wherein their lordships laid down that obvious approach for dealing with appeal against conviction would be different and should be distinguished from that against acquittal because presumption of double innocence is attached to the order of acquittal. We have heard the Counsel and have perused the record and we are of the view that prosecution could not produce tangible evidence, which could connect the respondents for the alleged commission of offence. The allegation against the respondents was that they have instigated the other co-accused to kill the deceased does not appeal to the reasons when it is alleged that they were armed with weapons and one with Lathi and have not participated in the commission of the offence.

11. We, for the aforesaid reasons vide our short order dated 28-10-2009, had dismissed the appeal. While dismissing the appeal by our short order, we had also directed the S.P. Investigation Jamshoro to ensure arrest of absconding accused within 15 days A and in case of failure, he shall appear before this Court with explanation. Copy of the order be faxed to the S.P. Investigation Jamshoro for compliance. H.B.T./Z-24/K???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.