1992 P Cr (PLP)

5. The learned trial Judge after hearing the learned counsel for parties recorded his findings on the points framed by him and ultimately delivered judgment in acquittal, which is now impugned before us. Mr: Naeem- ur-Rehman, learned counsel for the appellant raised three pleas:-- (i) That the findings of the learned trial Judge on the three witnesses, belonging inter se to one District, namely Shikarpur, do trot make them interested witnesses. (ii) The apparent contradictions; which were pointed out by the learned trial Judge can be attributed to lapse of memory. (iii) No mens rea against the prosecution witnesses has been alleged. As regards the first plea; it is an admitted fact that all the P.Ws. hail from District Shikarpur. P.W.3 Danishmand Ali was on friendly terms with P.W.1 Ghulam Muhammad Shaikh, F.I.O., and they know each other since childhood. P.W.2 Naeem Khan, no doubt is a Head Constable in P.N.C.B. is also working in the same department for the last 5/6 years and comes from the same District. Admittedly there were other officials in the patrolling party as named in the F.I.R. by P.W.1 in his statement. There seems to be no reason as, to why P.W.1 chose the two witnesses belonging to his own District and place who are not only known to each other for so many years, but have admittedly been on friendly terms. The learned Judge was impressed by this fact and has recorded his findings as under:-- "At the very outset it be made clear that all the three witnesses, including the Mashirs of the recovery in question, examined by the prosecution to prove its case against the accused, hail from District Shikarpur, Sindh and have admittedly good terms with each other as such by no stretch of imagination they could be deemed to be impartial and uninterested witnesses."

7. As regards the apparent contradictions, the learned counsel for the appellant submitted that the same could be attributed to the lapse of memory on the part of P.W.1 Ghulam Muhammad Shaikh. These contradictions as available on the record are:-- (i) P.W.1 has stated that he had received spy information that someone will be coming on a scooter to deliver heroin to another person. This was so stated in the examination-in-chief. But in the cross-examination he stated that respondent No.l was coming on a motor-cycle. (ii) Respondent Abdul Nawab, P.W.1 stated in the examination-in-chief that he was sitting on the foot-path and was having heroin powder in a Khujoor basket, whereas in cross-examination he changed the, version and deposed that respondent Abdul Nawab was standing with a bag in his hand near electric store on the road. (iii) The third contradiction as also borne out from the record is that he weighed the heroin by spring scale, whereas the other P.Ws. stated that a kit was taken out of the vehicle by which the heroin powder was weighed.

8. The learned trial Judge has taken note of these inconsistencies and has come to the conclusion that the witnesses have not come out with true facts "

9. As regards the third plea that there is no enmity or mens rea established on record between the prosecution witnesses and the accused, it has been pointed out in last three lines of the statement of P.W.1 Ghulam Muhammad Shaikh. During cross-examination by the learned counsel for respondent Syed Hasan Abbas a suggestion was given to the witness that the witness had earlier arrested Hassan Abbas in a heroin case alleged to have been recovered from his possession on motor-cycle near Cafe Liberty, Tariq Road. Karachi in which he was acquitted. The suggestion was denied by him. In his own words:-- "It is incorrect to suggest that PNCB had earlier prepared a case against Hasan Abbas who was acquitted in that case as such we had threatened him to involve in any other case with the result that present case was instituted against him on the basis of foisted case property."

10. When pointed out judgment in Criminal Appeal No.24/K of 1989 Syed Hasan Abbas etc. v. The State to the learned counsel for the appellant, he stated that he does not press the point that there was no mens rea on the part of P.W.1 Ghulam Muhammad Shaikh, FIO/I.O. in the case.

11. The learned trial Judge also seems to be impressed by not producing a public man from the same area at the time of recovery as the place of occurrence is one of the most thickly populated areas of the city. In this respect the learned Judge appears to have drawn an inference against the prosecution.

12. It may, however, be observed that we are not hearing a regular appeal against conviction, but an appeal against acquittal. The parameters are quite different to examine the guilt or otherwise in the above said two situations. It has been often held by the Honourable Supreme Court in a number of cases as well as by this Court that the Appellate Courts will be reluctant in disturbing the findings of acquittal recorded by the trial Court. The leading case on the point is reported as Sheo Swarup v. King Emperor A I R 1934 PC

227. We may, however, refer to the latest judgment of the Supreme Court reported in Yar Muhammad and 3 others v. The State 1992 S C M R

96. The relevant observation is reproduced as under:

"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."

13. For the above stated facts and law, we are clear in our mind that if there are two possibilities of recording findings of guilt or otherwise and the learned trial Court has given a finding of absence of guilt, the Appellate Courts should not impose its own-finding as to guilt, unless it is clearly shown on the record that the findings given by the trial Court are perverse, illegal and based on misreading of evidence. We have read the entire evidence with the learned counsel for the appellant. He was not able to point out any misreading of the evidence. Whatever the findings have been recorded by the learned Judge are based on the evidence with due regard to the observance of the rules of appreciation of evidence.

14. It has been an accepted principle in the annals of legal history that a person is deemed to be innocent unless he is proved guilty. Once the innocence of an accused is established at the trial in a Court of law of competent jurisdiction, `the acquittal of the innocent is in no less a public interest than that of the, condemnation of the guilty' as Bertrand Russell, a great philosopher of our era, once wrote.

15. We would, therefore, dismiss this appeal M.BA./702/FSC Appeal dismissed