2005 PLP 2315 (YLR)

Through this Acquittal Appeal No.89 of 1998 the State has called in question the acquittal judgment dated 17-11-1997 passed by learned Additional Sessions Judge, Kohat in Sessions case No.76 of 1995 under section 324, P.P.C. arising out of F.I.R. No. 244 dated 14-6-1994 of Police Station Cantt., Kohat.

2. The prosecution story in brief is, that on the night of occurrence complainant lmran Shah, employed at PAF Petrol Pump, was on the way to his house on bicycle after finishing his duty. When he reached near Janana Mills at 9-15 p.m., accused-respondent Fazlur Rehman already present there, started firing on the complainant with pistol, as a result whereof the complainant was hit on the thigh. The complainant boarded a flying coach and managed to reach the hospital.

3. A.S.-I., Qaiser Khan (P.W.8) on receipt of information regarding the occurrence reached the hospital, recorded the report Exh.P.A./1 at the instance of the complainant and prepared injury sheet Exh.P.M./1 of the injured and then proceeded to the spot. He prepared site-plan Exh.P.B. and recovered two empties of .30 bore P.7 from the spot vide recovery memo. Exh.P.C./2 in the presence of marginal witnesses. On the following day he arrested the accused-respondent from his house and recovered from his possession a .30 bore pistol with a kash, having 19 rounds and one spare magazine, and a licence copy vide memo. Exh.P.C./1. The crime empties and the pistol in question were sent to Fire-arms Expert Peshawar. After completion of investigation complete challan was submitted in Court.

4. A formal charge was framed against the accused-respondent to which he pleaded not guilty and claimed trial.

5. The prosecution with the view to establish the guilt of the accused produced 8 witnesses in all complainant lmran Shah fully supported the prosecution version and charged the accused-respondent for the offence in question. Dr. Shahid Sardar (P.W.5) Liaqat Memorial Hospital, Kohat, on 14-6-1993 at 10-00 p.m. examined complainant and found the following:-- (1) Fire-arm entry wound 1/4" diameter right thigh upper aspect, lateral side 6" below groin. (2) Fire-arm exit wound 1/2" diameter right thigh upper aspect, medial side at the level of entry wound. (3) Fire-arm grazing wound upper surface of glans penis."

6. Considering the material on record, learned trial Judge came to the conclusion that prosecution has not been able to prove its case against the accused beyond any shadow of doubt and acquitted him by extending benefit of doubt.

7. Towards the end of the trial, statement of accused was recorded under section 342, Cr.P.C.. By putting all prosecution evidence brought on record against him who denied the charge and claimed his innocence and in answer to the question as to why the prosecution witnesses have deposed against him, he replied as under:-- "None of the P.Ws. have brought any solid charge against me because no witness has appeared who could connect me with the commission of the crime and the solitary eye-witness has himself admitted that he had already grievance against me because of strained relations of her sister with me and therefore, his testimony becomes very doubtful. The police officials though are of very weak nature but they are always interested in the success of their case so I submit that there is no witness against me who can be relied upon."

8. Mr. Muhammad Adil Advocate, appearing on behalf of the State, vehemently contended that overwhelming credible and trustworthy evidence has been adduced by the prosecution in the shape of the deposition of the complainant, medical evidence and recovery of crime empties from the spot, which conclusively proves the guilt of the accused-respondent but the learned trial Judge erroneously disbelieved and discarded the testimony of the complainant by drawing inferences which are neither probable nor acceptable, which has resulted in complete failure of justice.

9. Mr. Zakir Hayat Advocate, for the accused-respondent, on the other hand, supported the impugned judgment whole heartedly and stressed that reasons advanced in support of acquittal are sound, cogent and based upon evidence on record and these are not at all flimsy and whimsical.

10. To convict a person on capital charge, evidence should he of high quality and good standard which is not available in this case. The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. The judgment returned by the trial Court is a fair judgment based on proper, just and legal appreciation of the evidence on record. Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. The evidence of the prosecution has been fairly and properly appreciated to secure the ends of justice. Learned counsel for the State has argued that judgment in question was delivered without fully appreciating the evidence of the prosecution. He added that it was a fit case for conviction of the accused. When inquired as to what portion of the material evidence was not appreciated correctly by the trial Court, learned counsel was not able to point out any important piece of the evidence which could form the basis of conviction. No doubt, it is true that accused-respondent stands directly nominated in the promptly lodged report for the commission of crime but it is equally true that the prosecution has failed to produce evidence which could connect accused-respondent with the commission of crime. It needs no reiteration that standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of accused-respondent is considerably narrow and limited. It is well settled now that the superior Courts while dealing with the appeal against acquittal interfere only in such cases where the judgment of acquittal is based on misreading, non-appraisal of evidence or is speculative, artificial, arbitrary and foolish on its face. Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v. Muhammad Raja and 3 others PLD 2004 Peshawar 1; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; State through .Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Hameed-ur-Rchman v. Said Rehman and 5 others 2005 PCr.LJ 53.

11. The crime in question is stated to have taken place in the month of Ramzan at 9-15 p.m. on the main crossing near Janana Mills Kohat. The complainant claims to have succeeded to reach the hospital in a flying coach. Neither driver of the coach nor conductor nor anybody else has been produced in support of the assertion. The solitary statement of the complainant, in absence of corroborative evidence has rightly been discarded and excluded out of consideration by the learned trial Judge.

12. The judgment of acquittal is balanced and well-reasoned and I hold that enough evidence for conviction of accused-respondent was not available in the case. After the acquittal, accused-respondent enjoys double presumptions of being innocent as the first presumption is awarded to him by the law of the land while the second presumption is created by the impugned judgment of acquittal. To do away with both these presumptions prosecution is required a fool proof case, which is not in hand. For the foregoing reasons, I see no force in the State appeal and dismiss the same. The judgment of acquittal dated 17-11-1997 is upheld. The accused-respondent is discharged of the bail bond executed by him in pursuant to the order dated 22-6-1998 of this Court. H.B.T./435/P?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.