2010 PLP 2216 (YLR)

SARDAR TARIQ MASOOD, J.--Mst. Shamim Ghaffar petitioner seeks grant of Special Leave to Appeal against the judgment dated 28-2-2007 passed by the learned Additional Sessions Judge, Multan, whereby, respondents Ghulam Shabbir and Liaquat Ali were acquitted in complaint case titled Mst Shamim Ghaffar v. Ghulam Shabbir etc. under sections 302/34, P.P.C. Police Station Bodla Sant, Multan.

2. The F.I.R. in this case was lodged by the petitioner on 29-10-2003 vide F.I.R. No.122-2003 under sections 302/34, P.P.C. registered at Police Station Bodla Sant. Subsequently, the investigation was conducted and respondents Nos.1 and 2 were found innocent during the successive investigations. After a delay of about 2 1/2 years the present private complaint was filed in which respondents Nos.1 and 2 were summoned and the trial was conducted. The complainant produced three prosecution witnesses, whereas, 9-C.Ws. were summoned and were examined during the trial. After conclusion of the trial the trial Court, vide its judgment, dated 28-2-2007 acquitted both the accused by giving them the benefit of doubt.

3. The learned counsel contended that the complainant/petitioner had mentioned in the F.I.R. that one of the accused which was identified is son of Shaban peon. Further contended that at the said odd time of occurrence, no independent witness from the vicinity could be produced. However, Naseer Ahmad was produced by the complainant during the trial who is not related to the complainant's side. Further contended that filing of the complaint with such a delay could not be fatal to the prosecution case. Further contended that C.W.9 namely Muhammad Idrees, wireless operator was produced who stated that immediately after the occurrence, the District Police Officer and the S.H.O. had given massages that the raid should be conducted at the house of Shaban.

4. I have heard the learned counsel for the petitioner and also gone through the record with the assistance of learned counsel for the petitioner.

5. It is the prosecution case that Naseer Ahmad P.W.3 reached at the spot. The deceased told him that it was Shabbir and Liaquat who had fired upon him. In this situation, names of the accused persons must have been mentioned in the F.I.R. which was recorded subsequently. Even in the statement under section 161, Cr.P.C. of Mst. Shazia Ghaffar P.W.2, names of the accused persons are not mentioned. During the investigation of the case, both the accused persons were declared innocent and nothing was recovered from them. Learned counsel for the petitioner contended that the Investigation conducted by the Investigating Officer is not binding upon the Court and is irrelevant. No doubt said opinion of the police has no binding effect upon the Court but the same cannot be thrown in the air and have weight, especially, in such like cases, where, names are not mentioned in the F.I.R. I have gone through the F.I.R., the name of Abdul Sattar, the real brother of the deceased is mentioned as an eye-witness of the occurrence. Who has neither been cited as a P.W. in the complaint nor produced rather during the course of investigation he had charged the complainant and Mst. Shazia Ghaffar for the murder of his brother Abdul Ghaffar deceased and during the course of investigation Mst. Shamim Ghaffar P.W.2 was arrested for the murder of Abdul Ghaffar deceased. This fact falsified the prosecution case which was build up after 2 1/2 years. I have gone through the F.I.R. According to the complaint three persons made straight firing upon Abdul Ghaffar and fire shots made by Ghulam Shabbir and Liaquat Ali and one unknown hit Abdul Ghaffar deceased on his chest. While going through the statement of Dr. Ghulam Asghar Shah, C.W.1 it revealed that on the chest, the deceased had received only one fire shot and the fire shot on his back of the chest is an exit wound. There is only another fire arm wound between the buttock. The statement of the Doctor also revealed that there were some blunt weapon injuries on the person of the deceased which were not explained which clearly indicate that the medical evidence is fully contradicting the story put forward in the F.I.R. and even the story put forward after 2 1/2 years in the private complaint. In this case, the occurrence took place on 29-10-2003, whereas, the complaint was filed on 15-4-2006 and this delay is not explained at all rather while making the statement under section 161, Cr.P.C. the complainant categorically stated that "I had not explained reasons of delay for filing the present complaint." It needs no reiteration 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. It was always observed by the apex Court that if there can be a different view F of reappraisal of evidence by the Court, hearing appeal against acquittal that would not be sufficient to justify any interference with the acquittal judgment. It is laid down by the apex Court in the case of State through Advocate General Sindh v. Bashir and others PLD 1997 SC 408, "that an appeal against acquittal stands on a different footing that an appeal against the conviction. In appeals against acquittal, the superior Courts generally do not interfere with, unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on reappraisal of the evidence by the Court hearing the acquittal appeal simplicitor would not be sufficient to justify interference with the acquittal judgment." Reference was made to 1995 SCMR 535 and 1991 SCMR 2220. It has further been observed by the honourable Supreme Court of the country in the case of Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 regarding appeal against acquittal that "the ordinary scope of petition or appeal against acquittal of accused is considerably narrow and limited

One the examination of the order of acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime. It is the established principle of law that obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of the accused is attached to the order of acquittal." It was further observed by the apex Court in the case of Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 that "the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction of misreading/non-reading of evidence... Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."

6. Having thus, examined all aspects of the matter mentioned above, I find that it could not be said that acquittal recorded by the learned Additional Sessions Judge proceeds on reasons which are perverse or whimsical. Resultantly, finding no merit in this petition, I dismiss the same and refuse to grant special leave to appeal to the petitioner. N.H.Q./S-257/L Petition dismissed.