2021 PLP 1759 (YLR)

KHADIM HUSSAIN M. SHAIKH, J.

This Criminal Acquittal Appeal is directed against Judgment dated 03.12.2019, passed by the learned Assistant Sessions Judge-II Kotri in Sessions Case No.144 of 2019, re: State v. Naseer Ahmed and others, emanating from FIR No.169 of 2019, registered at Police Station Kotri for the offence under sections 324, 353, 394, 109, 34, P.P.C. whereby the accused have been acquitted of the charge, extending them benefit of doubt.

2. Briefly the facts giving rise for filing of the instant Criminal Acquittal Appeal are that on 21.05.2019 complainant HC Sher Muhammad Khaskheli ["the appellant"] after performing his duty at Dargah Natho Shah Bukhari accompanying his brother Mashooq Ali on Motorcycle was on his way to Police Post Khan Pur, and at about 2115 hours, when they reached near the houses of Christian community where four accused namely Naseer Ahmed armed with pistol, Imran empty handed, Qamruddin armed with danda and Qadeer empty handed came there, they abused the complainant party and accused Qamruddin caused danda blows at the head of the appellant whereas accused Imran and Qadeer snatched the rifle from him and started firing which hit to the passerby PWs namely Noman and Paloos. Thereafter the injured persons were shifted to Hospital and the appellant lodged the subject FIR

This incident was allegedly committed by the above named accused at the instance of accused Liaquat Ali. After usual investigation the final report was submitted against the accused ["the respondents"].

3. The learned Trial Court after completing all the legal requirements framed charge against respondents Naseer Ahmed, Imran, Qadeer, Qamaruddin and Liaquat Ali at Ex.02, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.02/A to Ex.02/D. Thereafter accused Kamran, Danish and Rashid were sent-up with the supplementary challan as the alleged snatched rifle was recovered from them and then the amended charge against them was framed at Ex.04, to which, they pleaded not guilt and claimed to be tried vide their pleas at Ex.04/A to Ex.04/H respectively. Thereafter, the prosecution examined the appellant at Ex.05. who produced letter dated 03.04.2019 for medical treatment and FIR at Ex.05/A; PW-2 Mashooque Ali at Ex.06; PW-3 Nauman Ali at Ex.07; PW-4 Paloos at Ex.08; PW-5 Abdul Ghaffar at Ex.09. who produced memo of injury, meme of recovery of empties. memo of blood stained clothes, memo of arrest of respondents Naseer Ahmed and Imran at Ex.09/A to Ex.09/D; PW-06 SIP Ali Nawaz at Ex.10, who produced entry No.24, memo of arrest of accused Kamran, Rashid and Danish and recovery of SMG rifle FIR of Baldia P.S. at Ex.l0/A to 10/C respectively; PW-7 SIP Khadim Hussain Additional S.H.O Police Station Kotri at Ex.11, who produced letter of SSP addressed to Honourable District and Sessions Judge, Jamshoro, application along with order of Magistrate, memo of arrest of accused Kamran, Danish and Rashid in this case, memo of recovered empties of SMG with recovered weapon by Police Station Baldia and FSL report at Ex.11/A to Ex.11/E respectively; PW-8 Rashid Ali at Ex.12; PW-9 A.S.I Ghulam Rasool at Ex.13; PW-10 Dr. Ali Akbar at Ex.14, who produced carbon copy of letter. provisional medical certificates, Ward Record of Sher Muhammad, radiology report of Sher Muhammad, radiology report of Paloos and Nauman, final MLC of Paloos at Ex.14/A to Ex.14/L; PW-1 A.S.I Nazar Muhammad at Ex.15, who produced entry at Ex.15/A, arrival entry bearing No.46, photographs of injured Sher Muhammad, Nauman and Paloos, departure entry of site inspection bearing No.8 at Ex.15/A to 15/I respectively. Then the prosecution side was closed vide statement at Ex.16. The statements of accused as required under section 342 Cr.P.C. were recorded at Ex.17 to Ex.24 respectively, wherein they denying the allegations levelled by the prosecution professed their innocence. They neither opted to examine themselves on oath nor did they produce any witness in their defence.

4. At the conclusion of the trial and after hearing the parties' counsel, the learned Trial Court acquitted the respondents and co-accused namely Kamran alias Lal Bux. Danish alias Adnan and Rashid Ali of the charge, by extending them benefit of doubt vide impugned judgment dated 03.12.2019.

5. The appellant has filed this criminal acquittal appeal, only against the respondents.

6. The learned counsel for the appellant has mainly contended that the prosecution witnesses had fully supported the case at the trial, but the learned Trial Court acquitted the respondents: and, that the impugned judgment is illegal. The learned counsel prays that impugned acquittal judgment may be set-aside and the respondents may be convicted.

7. I have considered the submissions of learned counsel for the appellant, and have gone through the material brought on record.

8. The principles for appreciation of evidence in appeal against the acquittal are now well settled, for, an accused is presumed to be innocent and if after trial, he is acquitted, he earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is none reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty. Reliance in this context is placed on the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96). The Hon'be apex Court of Pakistan has observed that: "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice". In the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329). the Hon'ble Supreme Court of Pakistan has held that: "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused." In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice." In the case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), the Hon'ble Supreme Court has held that: "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 observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 "that the law relating to re-appraisal 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 or misreading/non-reading of evidence ..... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible." In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Hon'ble Supreme Court has held that: "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or a shocking conclusion has been drawn. Moreover, in a number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities".

9. From a perusal of the record it would be seen that the private injured persons namely Nouman and Paloos have not implicated the respondents in the commission of the alleged offence; PW Paloos has deposed that "I cannot identify any of the accused present today in the Court because there was complete darkness; hardly in such darkness we can identify/see a person; there was no other source of light there; I know accused Naseer, Qamar, Qadeer and Imran and Liaquat because they are neighours; I did not see any other motorcycle except our; I did not see any person coming out from the shrubs or running away towards them; likewise injured Nouman has stated that "there was darkness as such we could not see any person; I am unable to identify any of the accused present today in the Court because we could not see them due to darkness; the appellant, who claimed that on the day of incident he performed his duty at Dargah Natho Shah Bukhari and after closer of door of the Dargah he carrying official rifle bearing No.19011215 accompanying his brother PW Mashooq Ali on Motorcycle was proceeding towards the police post Khanpur via Khanpur road to perform his further duty there and when they reached at Christian houses this incident took place: in the FIR produced at Ex.05/A and in the evidence the time of incident is shown as 2115 hours i.e. 9:15 p.m. and whereas PW Mashooq Ali. in his examination-in-chief has stated that he left the house at 09:15 p.m., which shows that he was not present at the time of incident and his claim of his being eye-witness is manifestly incorrect, moreso when admittedly he was not alleged to have sustained any injury, in the alleged incident and his clothes were also not alleged to be blood stained, therefore, his presence at the time of incident has not been established by the prosecution; PW Complainant Sher Muhammad in his cross-examination has shown the bulb of rest house as the source of identification of the accused persons, but the same has not been secured, and whereas the private witnesses injured Nouman and Paloos in their statements have stated that there was complete darkness and there was no source of light; the complainant has admitted that the fact of identifying the accused as deposed is not mentioned in the FIR; the source of identification of accused is also not mentioned in the FIR, and whereas witness Mashooq Ali deposed in his examination-in-chief that "I identified the accused persons under the light of the vehicle (Motor cycle) that fact is also nowhere mentioned in the FIR and by deposing so, both the PWs complainant Sher Muhammad and witness Mashooq Ali have attempted to make improvements in the prosecution case during the trial; Roznamcha entry No.31 dated 21.5.2019 whereunder the complainant claimed to have performed his duty at Dargah Natho Shah Bukhari has not been produced in evidence and no other document, showing his duty at Dargah Natho Shah Bukhari, has been produced and even no responsible person of the Dargah was shown as witness; the complainant has stated that "I had shown the motorcycle of my brother to the police" but the motorcycle was not shown as case property; PW-1 Complainant Sher Muhammad and PW-2 Mashooq Ali both have stated that they had not received bullet injury; no incriminating article whatsoever was recovered from the respondents; per PW-1 Complainant Sher Muhammad and PW-2 Mashooq Ali the respondents had snatched away official rifle No.19011215 from the complainant at the time of incident, but that weapon was shown to have been recovered from co-accused Kamran alias Lal Bux, Danish alias Adnan and Rashid Ali, who have been acquitted of the charge vide impugned acquittal judgment dated 03.12.2019, but the appellant has not challenged their acquittal as was conceded by the learned counsel for the appellant on the Court query. Apart from the above discrepancies, material admissions of the witness adverse to the prosecution case, glaring contradictions and dishonest and deliberate improvements made by the prosecution witnesses during the trial, rendering their evidence unreliable and the prosecution case highly doubtful, there are many other material contra-dictions and infirmities in the prosecution case as discussed in the impugned acquittal judgment, which need not be discussed here just to save the space.

10. The learned trial Court after appreciating the evidence came to the conclusion that the prosecution has failed to prove its case against the respondents beyond a reasonable doubt and such a conclusion arrived at by the learned trial Court based on appreciation of evidence, which does not suffer from mis-reading or non-reading of the evidence or from any illegality or infirmity or perversity, calls for no interference in exercise of jurisdiction under section 417, Cr.P.C. in view of the law laid down by the Hon'ble apex Court as discussed supra. In such view of the matter, the instant criminal acquittal appeal being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 17.01.2020, whereby this Criminal Acquittal Appeal was dismissed. JK/S-61/Sindh Appeal dismissed.