2020 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

By means of instant Criminal Acquittal Appeal, the appellant Ali Muhammad has assailed Judgment dated 22.9.1996 passed by learned Additional Sessions Judge, Sanghar whereby he acquitted respondents Nos.1 to 7 in Sessions Case No. 106 of 1993 arising out of FIR No.09/1993 registered at Police Station Sinjhoro under sections 302, 114, 148, 149, P.P.C. read with sections 324, 337-A(ii), P.P.C.

2. Concisely, the facts of the prosecution case, as contained in the aforesaid FIR lodged by complainant Ali Muhammad on 22-4-1993 at 11:00 a.m. are that deceased Muhammad Saleh was husband of complainant's sister and they used to reside in one and same house. About 4/5 years back, deceased Muhammad Saleh had purchased agricultural land admeasuring 40/42 acres, in Deh 21 Jamrau, from Muhammad Hussain and Ghulam Muhammad, who were uncles of accused Bashir Arain. Accused Bashir had been saying Muhammad Saleh that the said land was owned by his uncle and he had purchased it therefore, he would not give the same to him upon which a dispute had cropped up between accused Bashir and deceased Muhammad Saleh. On the day of alleged incident, Jamal brother of complainant, was proceeding towards his land when accused namely, Bashir Ahmed, Ghulam Dastagir, Muhammad Ashraf, Shoukat Ali, Waqar Ali, Nazir Ahmed alias Baboo and Abdul Ghafoor started beating him with lathis and hatchets. On his cries deceased Muhammad Saleh, complainant Ali Muhammad, Beekho Khan, Soomar and Allahdin came out. Muhammad Saleh gave "Hakals" to the accused not to beat the boy. Bashir was armed with a gun. He pointed the gun towards Muhammad Saleh declaring that if he advanced a step ahead, he would shoot him. The complainant party was empty handed hence, they stopped due to fear. Meanwhile, accused Ghulam Dastgir instigated Bashir saying as to which of them was his mother's husband, due to which accused Bashir fired at deceased Muhammad Saleh which hit him below his arm pit on his left side and he fell down. Thereafter, accused Muhammad Ashraf gave him hatchet injury on his head, resultantly Muhammad Saleh died at the spot. Accused Bashir threatened the complainant party that if they would dare to come near, they would also meet the same fate. Accused Bashir Ahmed also fired at complainant's brother Jamal and pellets hit him on his left leg, whereas accused Ghulam Dastgir, Waqar Ali and Abdul Ghafoor, armed with lathis while Muhammad Ashraf, Nazir Ahmed and Shoukat Ali armed with hatchets, inflicted blows to Jamal. After being requested by the complainant not to kill another person after having killed Muhammad Saleh, accused went away towards their houses along with their weapons. Thereafter, complainant leaving the witnesses at the dead body of Muhammad Saleh took his brother Jamal to Police Station, Sinjhoro where he lodged FIR on 22-4-1993 at 11:00 a.m. Inspector Gul Muhammad registered FIR of complainant Ali Muhammad. On the same day, he visited scene of offence, prepared mashirnama of injuries on the person of injured Jamal Ex.25, mashirnama of vardat Ex.26, inquest report Ex.27 and "Chakas" Form Ex.28. He referred injured Jamal to Medical Officer, Taluqa Hospital Sinjhoro for examination, treatment and certificate. He also sent dead body of deceased Muhammad Saleh to Taluqa Hospital Sinjhoro for postmortem examination and report. On the same date, he arrested accused Bashir, Nazir Ahmed, Shoukat Ali, Abdul Ghafoor, Muhammad Ashraf, Ghulam Dastagir vide mashirnama Ex.29. He also recovered SBBL gun and blood stained shirt from accused Bashir vide mashirnama Exs.30 and 31 respectively. He also recovered blood stained hatchet and clothes from accused Ashraf under mashirnama Ex.32. He also recovered hatchets from accused Nazir Ahmed, Shoukat Ali and lathis from accused Ghulam Dastagir under mashirnama Ex.37. He also secured bloodstained clothes of deceased under mashirnama Ex.34. After completing usual investigation, the accused were challaned.

3. On 10-5-1993, accused Abdul Ghafoor filed Direct Complaint in the Court of Honourable Sessions Judge, Sanghar, stating therein that on 22-04-1993 at 8.30 a.m. he and his maternal nephew Nazir Ahmed came out from their house to fetch grass for their cattle and reached near the culvert, made of wood, in front of their house. Meanwhile, accused Jamal wanted to cross his bullock cart over the said culvert whereupon they requested him to desist from doing so as the bridge was damaged and was not fit for that purpose, whereby Jamal excited which resulted in exchange of hot words between the parties. Jamal went back by extending threats that he would bring persons to teach them a lesson therefore, due to fear the complainant and his nephew did not go to fetch grass and came back to their house. After about half an hour, Jamal and Muhammad Saleh, deceased in the instant case, armed with lathis, trespassed into their house, assaulted them and started giving them lathi blows. Accused Muhammad Saleh caused lathi blows which struck on the head, chest, below the shoulder and the arms of Abdul Ghafoor, complainant in Direct Complaint, whereas accused Jamal i.e. eye-witness in the instant case, caused injuries on the head of Nazir Ahmed and also gave lathi blows on his hand and chest. Both the accused were bent upon to kill both of them and were, beating them with lathis mercilessly, therefore complainant took a hatchet and Nazir Ahmed took a lathi, in order to save their lives and gave blows to the aggressors in their self defence. Complainant gave one hatchet blow to Muhammad Saleh which struck on his head who putting his hand on the head ran outside the house, meanwhile they heard fire-arms report from outside the house and same of the accused were also shouting outside the house. Accused Jamal after receiving lathi blows also ran outside the house. On the commotion, Noor Nabi, Fakir Muhammad, Muhammad Loung Jamali and so many other persons rushed towards the place of vardat and witnessed the whole incident and intervened finding them seriously injured. They informed that accused Yar Muhammad, Ghulam Rasool and Esso were holding gun whereas accused Rahim, Arab and Anwar were holding hatchets and accused. They further informed the complainant party in Direct Complaint that the persons who were holding guns were firing at the house of complainant and all of sudden, Muhammad Saleh emerged from their house, who was hit by the firing of the accused and then all the accused on their intervention by taking the dead body of Saleh and injured Jamal went away towards their Otaq. On the same day P.Ws Noor Nabi and Faqir Muhammad took injured Abdul Ghafoor and Nazir to P.S and narrated the facts of incident to police but they did not record their FIR. They were referred to Taluqa Hospital Sinjhoro and M.O. issued medical certificate of the injuries of complainant and Nazir Ahmed and also issued letter to SHO for providing them proper treatment, but the SHO arrested all the family members of the complainant party and did not record the FIR of the complainant, hence he filed Direct Complaint. Both the cases were tried by the trial Court together.

4. A formal Charge Ex.3 was framed against the accused in the instant case to which they pleaded not guilty and claimed to be tried. At the trial, prosecution examined complainant at Ex.10, who produced FIR as Ex.11, whereas P.W Jamal was examined at Ex.12, who produced his 164, Cr.P.C. statement as Ex.13. P.W Beekho Khan was examined at Ex.14 and P.W Dr. Arshad Ali was examined at Ex.15, who conducted postmortem over the dead body of deceased and produced postmortem report as Ex.16. Process server P.C. Mahboob Ali was examined at Ex.17, while P.W Dr. Devraj who examined injured Jamal was examined at Ex.18, who produced Medical Certificate as Ex.18-A. P.W Muhammad Siddique Tapedar was examined at Ex.19, who produced sketch of the place of incident as Ex.20. Mashir Mehar Din was examined at Ex.24, who produced ten mashirnamas as Ex.25 to 34 and P.W. SIP Abdul Sattar was examined at Ex.35. Thereafter, prosecution side was closed vide Statement Ex.36. The prosecution gave up P.W. Soomar vide statement Ex.14 and vide Statement Ex.21 reports of Chemical Examiner and that of Ballistic expert were brought on record as Ex.22 and Ex.23 respectively. Inspector Gul Muhammad, who was Investigating Officer of this case, had expired during the trial of case therefore prosecution examined SIP Abdul Sattar at Ex.35, who was said to have worked with the said I.O. Gul Muhammad and was well conversant with his handwriting and signatures.

5. Statements of accused persons were recorded under section 342, Cr.P.C. wherein they denied prosecution allegations and stated that they are innocent and have been falsely involved in the case. They further stated that, in fact, the deceased Muhammad Saleh and Jamal of the complainant party had trespassed their house and attacked them and other accused persons standing outside the house also made firing at the house which resulted in the death of deceased Muhammad Saleh. Co-accused Abdul Ghafoor had filed a Direct Complaint about the said incident.

6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment acquitted all the seven accused/respondents. Against the said judgment of acquittal the appellant/complainant has preferred instant Cr. Acquittal Appeal.

7. During the pendency of this appeal respondents/accused Bashir Ahmed and Ghulam Dastgir have expired.

8. We have heard learned counsel for the appellant, learned counsel for the respondents/accused as well as learned D.P.G. appearing for the State and have gone through the material available on the record.

9. Learned counsel for the appellant has contended that the impugned judgment of acquittal passed by the Trial Court is illegal having been passed without properly appreciating and evaluating the evidence brought on record. He further contended that the trial Court has ignored the ocular testimony of the eye-witnesses without any proper justification although they have fully implicated the accused in the commission of the alleged offence. He further contended that the impugned judgment is based on assumptions and presumptions, so also surmises and conjectures without assigning sound and cogent reasons for acquitting the respondents. According to him, there is strong ocular evidence but the trial Court without any proper justification has disbelieved such evidence. He contended that the impugned judgment is the result of misreading and non-reading of the evidence. he further contended that the trial Court has wrongly held that there are contradictions in the medical evidence and ocular testimony. He further contended that the trial Court has also erred ignoring the evidence of recovery of incriminating articles and blood-stained clothes. He further contended that the trial court has not considered the fact that the Direct Complaint was filed by the accused party after 18 days of the lodging of FIR in the instant case, which establishes that the same was filed only as a counter blast. He further contended that the trial court also erred in acquitting the accused on the plea of self-defence. He further contended that the trial court has passed the impugned judgment in a hasty and mechanical manner without appreciating the relevant law as well as the submissions made on behalf of the appellant/complainant. He prayed for setting aside the impugned judgment and convicting the respondents.

10. Conversely, learned counsel for the respondents/accused supported the impugned judgment contending that the same has been passed after discussing elaborately each and every point involved in the case and cogent and sound reasons have been assigned by learned trial Judge for his findings. He further contended that the criteria for deciding a Criminal Appeal filed against acquittal are totally different from that of a Criminal Appeal against conviction. According to him, in the acquittal appeal presumption of double innocence is available and only in exceptional cases the judgment of acquittal is converted into a judgment of conviction. He further contended that the main role of causing injury to deceased Muhammad Saleh was assigned to accused Bashir Ahmed and that of instigating accused Bashir Ahmed to cause death of deceased Saleh Muhammad was assigned to accused Ghulam Dastgir and both the said accused have expired during the pendency of instant appeal. He further contended that the eye-witnesses are related to the complainant party as such they are interested witnesses and their testimony cannot be relied upon without any strong corroboration. He further contended that although independent witnesses were available at the time of incident at the spot but they were not associated as witnesses and instead interested witnesses were examined and also made mashir of recovery who was resident at a place far-away from the place of incident, which is fatal to the prosecution case. He contended that there are material contradictions in the evidence of the prosecution witnesses, so also between medical evidence and ocular testimony. He submitted that recovery of crime weapons as well as blood stained clothes has also not been proved by worth-reliance evidence and material, likewise the prosecution has also failed to prove the motive for commission of the alleged offence. He lastly prayed for dismissal of the appeal and maintaining the impugned judgment.

11. Learned D.P.G. appearing for the State, also supported the impugned judgment and contended that the impugned judgment has been passed in accordance with the law and there is no plausible reason and justification to interfere with the impugned judgment. He further contended that only in exceptional cases the judgment of acquittal could be interfered with. He further contended there was also violation of section 103, Cr.P.C. while effecting the recovery of crime weapons as well as bloodstained clothes etc. He also prayed for dismissal of the appeal and upholding the acquittal order.

12. From the scrutiny of the evidence of the prosecution witnesses and other material available on the record, it seems that there are various lacunas and discrepancies in the prosecution case, as well as contradictions in the evidence of the prosecution witnesses.

13. According to PW Jamal, Beekho had reached at the Otaq at 10.30 a.m. while PW Beekho deposed that he had come at Otaq at 8.30 a.m. This shows that PW Beekho was not present at the scene of offence at the time of incident, because PW Beekho has failed to explain that why he had come at the Otaq of Muhammad Saleh on the day of incident and what was the reason behind his coming at the otaq. Besides, Beekho has deposed that gunshot hit on the abdomen of deceased Muhammad Saleh while the case of prosecution is that the gunshot hit at the below of left-arm pit of Muhammad Saleh.

14. Besides, there is also contradiction in the evidence of the prosecution witnesses with regard to exact place of incident where the deceased was done to death and P.W Jamal was caused injuries. According to column No.4 of FIR, the place of incident is shown in village Deh 21 Jamrau in front of the Otaq of deceased Muhammad Saleh. According to complainant, when his brother Jamal was going towards his land the accused persons, who were sitting on the culvert, did not allow him to pass through the culvert which resulted in a quarrel. On the cries of Jamal deceased Muhammad Saleh, complainant Ali Muhammad, Beekho and Allahdin were attracted who went there running and under instigation of co-accused Ghulam Dastgir, accused Bashir fired at deceased Muhammad Saleh, so also at Jamal P.W. From this it was safely be said that the incident took place in between the Otaq of deceased and culvert. According to P.W Jamal, the deceased was murdered at the back side of Otaq, whereas P.W Beekho Khan deposed that the murder of deceased Muhammad Saleh was committed at about 4 or 5 paces away from his Otaq i.e. in the east-north corner of the otaq, while the complainant in his cross-examination specifically stated that the dead body was lying about 5/6 paces away from the otaq of Muhammad Saleh when police visited the place of incident. Now when the deceased had received injury at culvert, not at the place where the dead body was lying, then how his dead body was lying near the Otaq. It is also to point out here that further cross-examination of the complainant was reserved as he was not feeling well. On the next date i.e. 23-04-95 when he was recalled and re-affirmed, he admitted that the dead body was lying in lemon garden near the otaq when police reached the spot and the dead body was brought from the place where it was lying to the place near Otaq. This indicates that the dead body of deceased was shifted at two places before the arrival of police. Another interesting feature in this regard is that the Tapedar has introduced another place where the dead body was lying which situated by the side of a katcha path, whereas as per sketch prepared by police Ex.28, when police visited the place of incident, the dead body of deceased was lying under lemon tree away from katcha path. The prosecution witnesses have not disclosed any katcha path in their evidence.

15. It is also to be noted that according to complainant, on the cries of Jamal deceased Muhammad Saleh, he himself (complainant) Beekho, as well as Allahdino went there running, but P.W. Jamal does not say so. He does not claim the complainant and PW Beekho to have seen the incident. According to P.W. Jamal, accused gave him `hakkals' and started fighting with him whereupon he raised cries and started running back and reached the back side of the Otaq. Muhammad Saleh came out of the otaq and said to Bashir as to why they were fighting with a boy and on the instigation of accused Dastgir, Bashir fired at Muhammad Saleh which hit him on the left side of his body. Bashir fired another shot which hit him on his left leg and thereafter, accused went to the house of Dastgir while raising slogans. This witness has not deposed that during this time the complainant and PW Beekho were present at the place of incident. Complainant in his cross-examination stated that on hearing commotion of quarrel between Jamal and accused, they all came out of the otaq simultaneously, but PW Jamal has belied this version of complainant as he does not claim the complainant and PW Beekho to have seen the incident. PW Beekho deposed that on the cries of Jamal in the first instance, Muhammad Saleh came out of the Otaq and then they came out of the otaq. He does not claim to have rushed towards the culvert, where accused were fighting with PW Jamal. According to complainant, PW Jamal was standing on eastern side of the deceased when he received gunshot injuries, but PW Jamal did not deposed so, rather he stated that he was on southern side of deceased Muhammad Saleh when he received injury and he was 5/6 feet away from Saleh, whereas PW Beekho is silent in this regard. According to PW Jamal, accused Bashir fired at him, which hit him at his leg, but complainant does not attribute this injury to accused Bashir, he simply, states that thereafter, his brother PW Jamal had also received gunshot injury on his leg. According to complainant, accused Ashraf, Bashir, Dastagir and others were sitting on the culvert, but PW Jamal stated that he saw accused Bashir armed with gun, Ashraf armed with hatchet, Nazir armed with hatchet, Shoukat armed with lathi, Waqar, Ghafoor and Dastagir were armed with lathis were standing at the culvert, so also PW Beekho. Complainant deposed that on the cries of his brother, deceased Muhammad Saleh, he himself, Beekho and Allahdin went running there. According to complainant, accused Ashraf and Shoukat were armed with hatchets, while rest of the accused were armed with lathis, but PW Jamal stated that accused Nazeer was also armed with hatchet. Complainant deposed that none else was injured in the fight, but in the FIR he had alleged that accused persons also received injuries. Complainant has also made improvement in his deposition by saying that he had not stated in FIR that immediately prior to the incident, he, deceased Muhammad Saleh, PW Beekho, Jamal, Soomar and Allahdin were sitting in the otaq of Muhammad Saleh although such fact was stated by him in his examination-in-chief. At one stage, complainant deposed that PW Beekho resides about one mile away from his village but he again said that PW Beekho resides one block away. According to PW Jamal, PW Beekho resides 5 to 7 blocks away from their village while Beekho deposed that he resides 10/12 acres away from the place of incident.

16. Another noteworthy aspect of the case seems to be; the contents of FIR show that it was lodged at 11.0 a.m. According to complainant, police reached at the spot at 11.00 a.m. whereas PW Beekho claimed that police came at the place of occurrence at 10.00 or 10.30 a.m. Complainant further explains this aspect of the case by deposing in his cross-examination as under:- "It is correct that I put my signature on the FIR after bringing the dead body at the hospital by the police and visit of the vardat by them."

17. It is pertinent to mention here that author of the FIR has not been examined because according to process-server, I.O. Gul Muhammad had expired. According to PW Jamal, after receiving injuries he went unconscious. In such circumstances, one has to rely upon the solitary words of the complainant to the effect that police put his LTI on FIR after visiting the place of incident. In my opinion, the trial Court has rightly placed reliance on this point on the case of Kallu Khan v. The State reported in 1982 PCr.LJ 403, wherein it was held as under:- "S. 154-First Information Report

Report made to sub-Inspector of Police at Police Station--Sub-Inspector instead of taking it down immediately leaving for spot and recording FIR after making investigation- Sanctity attached to FIR, held, vanished in circumstances of the case."

18. Thus, it is clear that FIR was registered after inspecting the place of incident. The time mentioned in FIR as 11.00 a.m. seems to be incorrect in for the simple reason that according to Doctor, he had received the dead body at 2.30 p.m. and according to complainant he put his LTI after bringing the dead body at hospital by the police and after inspection of place of incident. It means that FIR was got registered after 2.30 p.m. and in this way the complainant had got sufficient time to make consultation, thus possibility of false implication of the accused persons cannot be ruled out.

19. So far as recovery of crime weapons/incriminating articles as well as bloodstained clothes is concerned, the mashir examined on this point is P.W. Mehar Din. It has come on record that the said mashir was resident of village Sarki. According to FIR, the place of incident is situated about 11 kilometers away from Police Station towards northern side. According to complainant mashir Mehar Din resides about three miles away from Police Station Sinjhoro towards its south, meaning thereby that the said mashir was residing at a place situated more than 17 kilometers away from the place of incident. No plausible explanation has been offered by the prosecution as to how and why the said mashir reached at the place of incident from such a distant place. There is also no explanation as to why the police did not take any other person from the locality or from nearby villages of the incident. Mashir Mehar Din deposed that police inspected the place of incident in his presence. He further deposed that police arrested accused Bashir Ahmed, Shoukat, Nazeer Ahmed and three other accused, whereas accused Waqar was arrested from Bus Stand of Chak No.24 under mashirnama Ex.29. He further deposed that accused Bashir led the police to his house and produced DBBL gun which was used for commission of alleged offence from his room. The gun was opened by police officer and from the smell coming out there from it appeared that it was used recently. Police secured the gun along with its license under mashirnama in his presence. Police sealed the gun at the spot. Accused Bashir produced bloodstained shirt and shalwar from the same room which was secured by the police. Police also recovered blood-stained hatchet from accused Ashraf, which he had produced from the same room. Police secured and sealed it under mashirnama. He further deposed that he does not remember what was the other thing recovered from him. The accused namely Nazir Ahmed, Shoukat, Ghulam Dastgir and Abdul Ghafoor produced hatchets and lathis but he did not remember as to which accused produced which article. Such mashirnama was prepared by the police. The accused had brought these articles from their houses. The gun duly sealed was produced before the Court and on its opening it was found to be a single barrel gun however the mashir stated that he did not remember whether the gun secured by police was double barrel or single barrel but the gun available in court was same. He further admitted that police was sitting in the otaq of accused and thereafter, they all went inside the room. Again said police went along with the accused persons to their houses and secured hatchets and lathis produced by the accused persons and brought the same at the otaq. He admitted that it was a village where the houses of accused are situated. He further admitted that the place of incident was about 1-1/2 or 2 miles away from Bus Stand of Chak No.24. He further admitted that the village was about six miles away from Sinjhoro Town towards south. He also admitted that Sinjhoro police station was situated in Sinjhoro town. He further admitted that there were some houses which are situated at some distances from aforesaid Bus Stand. The injured PW Jamal was present at the place of incident and his injuries were noted by the police.

20. From the evidence of this mashir it appears that same is self-contradictory. He does not claim that the hatchets and lathis were produced by accused from their houses in his presence. He also admitted that there were houses nearby the place of arrest of accused and such recoveries were made from accused from a village, where houses were situated. In this case, mashir was resident of a place situated about 17 Kilometers away from the place of recovery and arrest. There is sufficient material on record to suggest that places of arrest and recovery were surrounded by number of houses and villages nearby, but surprisingly enough the police instead of associating any independent person from the vicinity, had chosen to select a mashir who resided at a faraway place from the place of arrest and recovery for which no plausible explanation has been offered by the prosecution. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under: "As regards above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."

21. It is also worthwhile to point out that the incident had taken place on 22.4.1993 and the accused were arrested on the same day and police recovered gun from accused Bashir, blood-stained hatchet from accused Ashraf as well as blood stained clothes. It is also alleged that these weapons and articles were sealed for sending to Chemical Examiner and Ballistic Expert; however, there is nothing on record to suggest that when these articles were sent, but report of Chemical Examiner and Ballistic Expert Exs.22 and 23 respectively are available on record. Report of Chemical Examiner shows that blood stained earth, clothes of accused Bashir, hatched and blood-stained clothes of accused Ashraf were sent by hand through P.C. Imdad Ali duly sealed separately on 30-5-1994 and the same were received in the office of Chemical Examiner on 5-6-1994 which indicates that these articles were sent to the office of Chemical Examiner for report after about one year and 13 days. The report of Ballistic Expert shows that he received one .12 bore SBBL gun and two .12 bore crime empties on 6-6-1994 for report, after one year and 14 days. Prosecution has not furnished any explanation as to where these articles were kept during such a long period and as to why the same were not sent to Chemical Examiner and Ballistic Expert. This has put serious damage and dent in the prosecution case. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."

22. In the case reported as Yaqoob Shah v. The State (1995 SCMR' 1293) Honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay.

23. Coming to the medical evidence, it seems that on this point prosecution examined complainant Ali Muhammad, PWs Jamal and Beekho Khan, Dr. Arshad Ali and Dr. Devraj. According to complainant, deceased Muhammad Saleh received gunshot injury on left side of his body. He also deposed that PW Jamal had also sustained gunshot injury on his leg. PW Jamal stated that accused Bashir fired at Muhammad Saleh which hit him on the left side of his body. Bashir fired another shot which hit him on his left leg. PW Beekho deposed that accused Bashir fired with his gun which hit on the left side of abdomen of deceased Muhammad Saleh. The above witnesses have also deposed that accused Ashraf caused one hatchet blow on the head of deceased. Doctor Arshad had conducted postmortem over the dead body of deceased Muhammad Saleh and Dr. Devraj had examined the injuries on the person of PW Jamal. Evidence of both the doctors does not support the evidence of these witnesses. According to prosecution witnesses deceased Muhammad Saleh had received only one hatchet injury on his head, but Dr. Arshad deposed that he found two incised wounds one on left side of head and the other on left side of the chin. Regarding second incised wound, there is nothing on record that how this injury was caused to deceased Muhammad Saleh. PW Achar claimed P.W. Jamal to have received pellet injury on his left leg. Complainant Ali Muhammad and PW Beekho have supported this version, but Dr. Devraj on examination of injury, found no pellet injury on his person, but found 13 injuries, all caused by hard and blunt substance. Thus, ocular testimony directly conflicts with the medical evidence regarding number of injuries caused to deceased as well as to PW Jamal.

24. It would also be pertinent to point out at this stage that the main role of causing injury to deceased Muhammad Saleh was assigned to accused Bashir Ahmed and that of instigating accused Bashir Ahmed to cause death of deceased Saleh Muhammad was assigned to accused Ghulam Dastgir and both the said accused have expired during the pendency of instant appeal.

25. In view of above contradictions and lacunas/flaws in the prosecution case, it can safely be held that the prosecution could not succeed in proving its case against the accused/respondents beyond shadow of reasonable doubt, as such the trial Court has rightly acquitted the respondents/accused by extending them benefit of doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various contradictions in the evidence of the prosecution witnesses which create doubts in the prosecution case, thus the trial Court had rightly extended benefit of such doubts to the accused. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

26. It would be pertinent to point out at this stage that the consideration for deciding a Criminal Appeal against acquittal are quite difference from that of a Criminal Appeal against conviction as in the former case presumption of double innocence of the accused is available in the case. It is a settled principle of law that the superior Courts act slowly in interfering with an order of acquittal, unless grounds for acquittal are perverse, wholly illogical or unreasonable.

27. In the case reported as Mirza Noor Hussain v. Farooq Zaman and 2 others (1993 SCMR 305) it was held by the Honourable Supreme Court as under: "... ....the judgment of the trial Court is supported by sound reasons and this Court cannot substitute its own findings in place thereof unless ... ....that the findings ... ... ...are 'artificial', 'shocking, 'ridiculous', `based on misreading of evidence' and 'leading to miscarriage of justice'."

28. In another case reported as Yar Muhammad and 3 others v. The State (1992 SCMR 96) Honourable Supreme Court observed as under: "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, 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 Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."

29. In the case of Ghulam Sikandar and another v. Mamraz Khan and others reported in PLD 1985 SC 11 it was held as under: "... ...The Courts often in such like difficult situation have applied test of "impossibility" by asking questions; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place." and "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible." And "The important test visualized in these cases, in this behalf was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

30. The upshot of above discussion is that aforesaid factors and contradictions create serious doubts in the prosecution case, therefore the trial Court rightly passed the impugned judgment thereby acquitting the accused/respondents. Consequently, instant Criminal Acquittal Appeal, in view of dicta laid down by the apex Court in case of Ghulam Sikandar and another (Supra) merits no consideration. Accordingly, same is hereby dismissed and the impugned judgment of acquittal is upheld.

31. Above are the reasons for short order passed on 15.05.2019. JK/A-141/Sindh Appeal dismissed.