P L D 2004 Karachi 73 (PLP)

The charge was framed against the accused under; section 302, P.P.C:, to which he pleaded not guilty and claimed to be tried. Prosecution in support of its ease examined complainant Mohammad Aslam Exh., 5, P.W. Abdul Ghafoor Exh. 11, Mohammad Hashim Exh. 15, S.-1. Abdul Rashid EA. 16, Mohammad Younus Exh. 19, H.C. Muhammad Ziarat Exh. 21, Dr. Liaquat Ali Exh,24, Investigating Officer. S.H.O. Ghulam Rasool Qureshi Exh. 27 while P.Ws. Abdul Qadir, Hassan and Shedi were given up by APP vide Exhs:l7, 18 and 23 respectively. Thereafter APP closed the side of the prosecution vide Exh.32. Ultimately the trial Court came to the conclusion that prosecution had, failed to bring home the guilt against the appellant and acquitted him. The said judgment is challenged through this criminal revision. I have heard Mr. Shahadat Awan learned counsel for applicant, Mr. LA, Hashmi for respondent No.1/accused and Mr. Habibur Rashid learned counsel appearing for State. It is contended by learned counsel for applicant that prosecution has proved its case beyond any reasonable doubt and the evidence has not been properly appraised. It is submitted that prosecution case is supported by complainant Muhammad Aslam, P.W. Abdul Ghafoor, P.W. Muhammad Hashim, Abdul Rashid, Muhammad Younus, Muhammad Ziarat, Dr. Liaquat Ali and Investigating Officer Ghulam Rasool Qureshi. It is stated that the respondent. No. I was caught hold at the spot and blood stained Chiirri was recovered from his possession. According to him this is a fit case wherein the criminal revision be allowed and acquittal may be converted into conviction. Mr. I.A. Hashmi raised objection that this criminal revision against acquittal judgment was not maintainable as the complainant had failed to apply to the Government for filing. an acquittal appeal. It is submitted that acquittal revision was not maintainable in view of the section 439 of subsection (5), Cr.P.C., as the appeal was provided under the law but the same was not filed by the Government and the complainant even failed to apply to the Government for filing an acquittal appellant is argued that the names of P.Ws. Abdul Ghafoor and Abdul Rashid were not mentioned in the F.I.R and subsequently the facts have been exaggerated and improved by the prosecution. It is submitted that the judgment is well reasoned and has caused no injustice. Mr. Habibur Rashid learned counsel appearing for State supports the impugned judgment of acquittal and states that no injustice has been done to the complainant. The case of prosecution as set up in the F.I.R. is that the accused was captured by complainant Muhammad Aslam, P.W. Muhammad Hashim and Younus. I have gone through the depositions of Muhammad Aslam, P.W. Muhammad Younus and Muhammad Hashim. Complainant has supported the contents of F.I.R. but added the name of Abdul Ghafoor as an eye-witness. He stated that the police came and secured the blood stained earth, Churri and arrested the accused. His evidence on that point has not been supported by P.W. Muhammad Hashim and Muhammad Younns. P.W. Muhammad Hashim stated that he has not seen family members of complainant in the house. He does not say that police secured blood-stained Churri or earth. He deposed that he came running and saw many persons present there. He went and saw the dead bodies of Ali Muhammad and Abu Bakar. He does not say that he had seen the accused at the Wardat. He stated as under:-- "I did not see the accused there at the Wardat after and before the arrival of police. I see Mashirnama Exhs. 7, 8, 9 and 10 they bear my signature." Similarly Muhammad Younus has not supported the version of complainant Muhammad Aslam. He stated that he only saw the accused coming out from the room with blood-stained knife and further stated that Ghafoor and Muhammad Aslam arrived afterwards and-they tried to catch hold of the accused but he went inside his house which was situated in between the house of deceased Abdu Bakar and Ali. He does not say that accused was captured by him, complainant and P.W. Hashim. The name of P.W. Abdul Ghafoor was not mentioned in the F.I.R. 'He unnecessarily exaggerated the facts by stating that he caused Danda blow to the accused. He deposed so in order to substantiate the fact as the accused was found in injured condition. His name was not appearing in the F.I.R., and has been introduced in prosecution story at later stage. In order to substantiate the factum of injury on the person of appellant, the prosecution exaggerated these facts. On the contrary, the explanation given by the appellant that he was maltreated by police gets support from the circumstances mentioned above. As neither it was mentioned in the F.I.R., that accused sustained injury nor any other witness stated so in the police statement. The appeal was provided under the law but complainant did not apply to the Government for filing acquittal appeal nor such certificate was filed by the complainant. Acquittal revision was also filed after more I than six months. The new section 417(2), Cr.P.C., was subsequently added in the statute. I do not find any discrepancy or illegality in the impugned judgment and the respondent No.1 was rightly acquitted. The principles for dealing with acquittal appeal are different from appeal against conviction. The reference in this regard can be had to the case of Yar Muhammad v. The State 1992 S C M R 96 wherein their lordships have held as under:-- "In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles for setting aside an order of acquittal are now well settled. 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 or 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." For the aforesaid reasons, I had dismissed this criminal revision by a short-order dated 15-4-2003. These are the reasons for the same. H.B.T./M-564./K Revision dismissed.