2020 PLP 1926 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

The Captioned appeal under section 417, Cr.P.C. has been directed against the judgment authored and pronounced on 30.11.2012, by the learned Additional Sessions Judge-XIV, Peshawar, in case FIR No. 301, dated 29.7.2009, under section 17(3) Harabah/412, P.P.C., registered with Police Station Shah Qabool, Peshawar, thereby the respondents Nos.1 and 2 have been acquitted of the charge of offences punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with section 412, P.P.C. The appellant has made a prayer that on acceptance of the appeal, the impugned judgment passed by the learned trial Court may be set aside and accused/respondent be convicted and sentenced in accordance with law.

2. A perusal of record transpires that after institution of instant appeal against respondents Nos.1 and 2, the learned counsel for the appellant did not press the appeal against Ajab Khan son of Abdul Sattar respondent No.2, thus the appeal against respondent No.2 had been dismissed as withdrawn by an earlier order dated 06.03.2013, passed by this Court. Now there remains respondent No.1.

3. Facts of the prosecution case in nutshell are that the appellant Kamil Jan, who is the complainant of the case, through written application reported the matter to the local police that he is servant of Mst. Laal Pari and on 24/07/2009 at 15:30 hours, someone knocked at the main door and when he opened the door, an unknown person wearing glasses inquired about inmates of the house. In the meantime, two persons with muffled faces entered in the house and on gunpoint looted cash amount, camera, binocular and gold ornaments. The complainant was searching the clue of culprits. Later on the complainant through reliable sources came to know that the said crime had committed by accused namely Sheh Zad alias Mano and absconding accused Sikandar, Bilal, Sartaj and two unknown persons. During investigation, one mobile phone was recovered from accused Ajab Khan. On completion of usual investigation, challan was submitted against them.

4. On commencement of trial, the charge was framed against the respondents for an offence punishable under section 17(3) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979/412, P.P.C., to which they pleaded not guilty and claimed trial. However, the absconding accused has been declared proclaimed offender by the trial court, and the case was ordered to be proceeded against him under section 512, Cr.P.C. Thereafter, prosecution examined as many as eight witnesses and thereafter statement of the accused/respondents under section 342, Cr.P.C. was recorded, in which they once again professed their innocence. On culmination of the trial the accused were acquitted from the charge, vide impugned judgment dated 30.11.2012.

5. Neither appellant nor his counsel are called in attendance since morning, without any intimation which depicts that perhaps the appellant has lost interest to contest the appeal any longer. In our view, the appeal being an old one instituted in the year 2013, admitted on 06.03.2013 for regular hearing cannot be lingered on for an indefinite period. We have considered valuable submissions advanced by learned counsel representing the State as well as learned counsel for the respondent and the record has also carefully been scanned.

6. Mr. Gul Daraz, learned counsel representing the respondent by reiterating his earlier submissions made before the learned trial court argued that the FIR had been lodged after six (6) days of the alleged occurrence, for which contradictory explanations have been given in the FIR and the evidence of Mst. Lal Pari alias Bibi Gul, recorded as PW-6, made the case of prosecution doubtful. He further argued that no incriminating articles i.e. camera, gold ornaments and mobile phones etc. which were allegedly snatched by accused facing trial have been recovered and the recovery of cash amount from the house of accused Shah Zad on his pointation has no weight in the eyes of law, as the cash amount is ordinarily available almost in each and every house. He further argued that accused/respondent facing trial namely Shah Zad was admittedly known to Mst. Lal Pari alias Bibi Gul before the alleged occurrence, so the identification parade in the circumstances has no legal value to connect the accused Shah Zad with the commission of offence; that as per deposition of Mst. Lal Pari alias Bibi Gul (PW-6), the accused Shah Zad was standing outside of her house at the time of occurrence and she identified him on the spot, but she could not charge him for six days, which clearly suggests that the prosecution failed to prove the guilt of accused Shah Zad beyond any shadow of doubt. Learned counsel supported the impugned judgment.

7. Conversely, learned State counsel, by supporting the impugned judgment submitted that there is no illegality, gross irregularity or infirmity in the impugned judgment, which do not call for interference of this court.

8. To evaluate the impugned judgment, it shall be advantageous to reproduce hereinbelow penultimate paragraph of impugned judgment:-- "Perusal of the case file shows that there is a delay of six days in lodging FIR for which the complainant gave explanation in FIR that they were trying to trace out the accused. Whereas, Mst. Lal Pari alias Bibi Gul in her statement recorded as PW-6 stated that the dealy was occurred as the accused party was trying to patch up the matter, which clearly suggests that the accused Shah Zad was admittedly known to Mst. Lal Pari alias Bibi Gul before the occurrence. So, the identification of accused Shah Zad through Mst. Lal Pari alias Bibi Gul during identification parade has no legal value to connect him with the commission of offence. Likewise, no incriminating articles i.e. gold ornaments, camera and binocular were recovered from the accused Shehzad and the only recovery of Rs.10,000/- on his pointation is not sufficient for recording the conviction of accused Shehzad".

9. It is pertinent to mention that the impugned judgment appears to be an elaborate, detailed, speaking one and we found no occasion for its re-appraisal. The learned trial Court thoroughly discussed the prosecution evidence and correctly reached at the conclusion that the prosecution has failed to prove its case against the accused beyond the shadow of reasonable doubt. It is now settled proposition of law that a single circumstance creates a reasonable doubt in a prudent mind about the guilt of accused, then he shall be entitled to such benefit not as a matter of grace but as a matter of right. Admittedly, conviction cannot be based on high probabilities and suspicion cannot take the place of proof, therefore, no legal sanctity is attached to the FIR lodged after inordinate delay merely on disclosure of some source of information. In latest authoritative pronouncement of the Hon'ble Apex Court, in the case of Muhammad Mansha v. The State (2018 SCMR 772), the dicta as laid down in such context is that:- "

4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."

10. From perusal of record, it appears that the impugned judgment does not suffer from misreading or non-appraisal of evidence or lack of appreciation of material evidence or reception of evidence illegally or jurisdictional defects or evidence of material nature produced by the prosecution were not recorded or the acquittal order on the face of it is contradictory or/and the order of acquittal was based without affording opportunity to the prosecution by violating principles governing the appreciation of evidence or that the acquittal judgment is based upon surmises, suppositions and conjectures and the acquittal is based upon reasons which do not appeal to a reasonable mind. It is not out of context to mention that the acquittal passed by the learned trial Court being balanced and well reasoned, would hardly call for interference of this Court in appeal as it is settled law that the appellate Court should not disturb acquittal if main grounds on which trial Court had based its acquittal order are reasonable and plausible, and cannot be dislodged or demolished.

11. For the foregoing reasons, we reached at the irresistible conclusion that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons, unexceptional, do not warrant any interference by this Court, and is accordingly maintained. Resultantly, the appeal is dismissed. MH/21/FSC Appeal dismissed.