2000 PLP 1010 (MLD)

Appeal is directed against the judgment of acquittal, date 25‑9‑1999 recorded by learned Additional Sessions Judge Khairpu acquitting the respondents of the charge under sections 302, 201, 148 and 149, P.P.C.

2. Facts leading to the appeal appear to be that on 10‑7‑1989 at about 4‑00 p.m. dead body of an unknown person was found in the hills of Ubhan Shah in Taluka Nara. One Fazal Hussain Kandhro lodged a report at police station on the same day at 6‑15 p.m. whereupon dead body was removed and after conducting autopsy it was buried. After eleven days i.e. 21‑7‑1989 first informant Mahboob Ail recorded F.I.R. at the same police station stating on that on 9‑7‑1989 he alongwith P.W. Aijaz Ali had been to the garden of Zawar Sukhio Bugti to see his brother Sardar Ali who his sitting alongwith respondents. According to him at the instance of the respondents Sardar Ali accompanied them to the exhibition/Mella of Ubhan Shah but he did not return home on the next day. On the next day he enquired from the respondents regarding the whereabouts of his brother who told him that he had separated from them at the Mella of Ubhan Shah. On coming to know that dead‑body of an unknown man had been recovered by the Police from the hills of Ubhan Shah he informed Jiwan Khan Bugti and at his advice, lodged the F.I.R.

3. During the course of investigation police arrested the respondents in addition to accused Nawab who expired during the pendency of the case. Respondents were charged under sections 302, 201, 148 and 149, P.P.C. to which they pleaded not guilty. On assessment of evidence including so-called judicial confessions of the respondents trial Court framed the following points for determination:‑‑‑ (1) Whether Sardar Ali son of Qaim Khan Bugti was murdered? (2) Whether present accused person alongwith deceased accused Nawab in prosecution of their common object formed unlawful assembly and used criminal force? (3) Whether present accused persons alognwith deceased accused Nawab in prosecution of their common object committed murder of Sardar Ali son of Qaim Khan Bugti? (4) Whether present accused persons alongwith deceased accused Nawab‑ in prosecution of their common object caused the evidence to disappear? (5) What offence is proved against the present accused persons?

4. On appraisal of the evidence, trial Court found that deceased Sardar Ali died an unnatural death as a result of compression of neck with some soft cloth. On the remaining points he concluded that the prosecution failed to establish the guilt beyond a reasonable doubt against the respondents. He discarded judicial confessions of the accused/respondents for the reason that statutory certificate as required under section 364(2), Cr.P.C. was not appended by the Magistrate. Accordingly he acquitted the respondents extending the benefit of doubt to them.

5. At the initial hearing, learned counsel for the appellant was required to file copies of depositions of witnesses on which he heavily relied for the admissions of this appeal against acquittal of the respondents. Accordingly copies of depositions of witnesses Fazal Muhammad, Amir Baskhsh, Mahmood Ali, Dr. Muhammad Akram, Aijaz and Khaliq. Dino have been placed ,on record.

6. After going through such depositions as well as the impugned judgment we called upon the learned counsel to point out illegalities in the judgment of the trial Court but instead of referring to the defective and weak circumstantial evidence he prays for admission of the appeal which cannot be accepted as a matter of course. Evidence of first informant Mehboob Ali as well Aijaz Ali simply tends to suggest that one day prior to the recovery of the dead body deceased was found in company of respondents. At best, it can be said that the deceased was last seen in company of the respondents which circumstances by itself would not saddle them with criminal liability for committing the murder of the deceased in prosecution of their common object without any strong motive. In order to succeed on its case prosecution was required to adduce strong corroborative evidence to create a direct nexus of the respondents with the act of culpable homicide of deceased amounting to murder.

7. From the evidence of first informant Mehboob Ali it appears that since with the respondents over the lands he suspected that his brother was murdered by them. There are material contradictions in the evidence of this star witness with reference to the evidence of P.W. Aijaz Ali and both the statements can hardly be reconciled with each other. Statement of first informant Mehboob Ali has a reference to information conveyed him by one Imamuddin Malah but it appears that Imamuddin Malah did not support that version of the first informant. Interestingly, a copy of the deposition of this witness has not been placed on record with the legitimate presumption that perhaps this witness was not examined at the trial.

8. Adverting to so‑called judicial confessions of the respondents, trial Court has observed that these were retracted by the respondents at the trial. Besides the trial Magistrate committed a serious illegality by not attaching certificate of satisfaction as required by subsection (2) of section 364, of the Code of Criminal Procedure. There is, thus, no escape from the conclusion that no conviction can be based on retracted judicial confessions without any strong corroboration retracted judicial confessions without any strong corroboration tending to link the respondents with the commission of heinous crime of murder.

9. In the given circumstances, we are of the considered view that by acquitting the respondents the trial Court did not commit any illegality or violation of the settled principles of administration of criminal justice while assessing the evidence. It is well‑settled that the presumption of innocence of an accused persons is doubled and rather multiplied by a finding of "not guilty" recorded by a competent Court of law. Such finding of fact cannot be lightly disturbed by this Court at the instance of a frustrated complainant who did not seriously pursue the case at the trial. Needless to say serious lacunas in the prosecution case cannot be filled at the appellate stage and appeal cannot be admitted merely to satisfy the whims of a disgruntled litigant.

10. For the aforesaid facts there is no merit in this appeal which must fail, and is hereby dismissed. N.H.Q./M‑36/K Appeal dismissed.