2022 PLP 102 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned Criminal Acquittal Appeal No.S-28 of 2019 directed against Judgment dated 16.04.2019 and Criminal Acquittal Appeal No.S-16 of 2020 directed against Judgment dated 28.01.2020, both passed by the learned VI-Additional Sessions Judge/MCTC, Larkana in Sessions Case No.412 of 2018, re: Abdul Ghaffar and others, emanating from Crime No.26 of 2017, registered at Police Station Mohotta, for offence under sections 365-B, 382, P.P.C. whereby the respondents in both the appeals have been acquitted of the charges, which need to be disposed of by a common Judgment, are being disposed of as such.

2. Briefly the facts giving rise for filing of the instant Criminal Acquittal Appeals are that complainant Gul Muhammad ["the appellant"] lodged FIR on 15.08.2017, alleging therein that accused Abdul Latif is a son of his cousin, who used to visit his house. On 12.08.2017, the daughter of the appellant namely Amna aged about 10/11 years and his sons namely Gul Bahar and Shawal Khan were present in the house; at about 08:00 p.m., said accused Abdul Latif accompanied with Ajoob and Mian Bux and two unidentified culprits duly armed with weapons entered in his house and forcibly abducted away his daughter Amna, having also taken away their motorcycle valuing Rs.45,000/, hence the subject FIR was lodged. After usual investigation the final report was submitted against the accused, showing accused Mian Bux son of Sohrab, Muhammad Ayoub alias Ajoob son of Mehrab and Abdul Ghaffar son of Mehboob Ali, all by caste Jatak-Brohi on bail and Abdul Latif son of Wahid Bux by caste Jatak-Brohi and Muhammad Jan son of Muhammad Sharif Baloch as absconder.

3. The learned Trial Court after completing all the legal requirements framed charge against the accused Mian Bux, Muhammad Ayoub alias Ajoob and Abdul Ghaffar, to which, they pleaded not guilty and claimed to be tried. The prosecution examined in all 07 witnesses, who produced all the relevant documents, thereafter, the learned DDPP for the State closed the side. Thereafter, the statement of accused Abdul Ghaffar, Mian Bux and Muhammad Ayoob as required under section 342, Cr.P.C. were recorded, 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. At the conclusion of the trial and after hearing the parties' counsel, the learned Trial Court acquitted the respondents of the charge by extending them benefit of doubt vide impugned judgment dated 16.04.2019.

4. Subsequently, accused Abdul Lateef Jatak-Brohi was arrested and in compliance of section 265-C, Cr.P.C. copies of case papers were supplied to him and a formal charge was framed against him, to which, he pleaded not guilty and claimed to be tried. At the time of trial, the prosecution examined in all 09 witnesses, who produced necessary documents in evidence, and, then learned ADPP for the State closed the prosecution's side. Thereafter, statement of accused Abdul Lateef was recorded, in which, he denied the prosecution allegations levelled against him and professed his innocence. He, examined himself on oath but did not opt to produce any person as his defence witness.

5. At the conclusion of the trial and after hearing the parties' counsel, the learned Trial Court also acquitted accused Abdul Latif of the charge by extending him benefit of doubt vide impugned judgment dated 28.01.2020.

6. Having felt aggrieved by both the aforesaid acquittal judgments, the appellant has preferred the captioned criminal acquittal appeals against Mian Bux, Muhammad Ayoub alias Ajoob and Abdul Ghaffar and Abdul Latif respectively ("the respondents").

7. The learned counsel for the appellant has mainly contended that delay in FIR was properly explained by the appellant, who after the incident remained in search of abductee Mst. Amna and then he lodged the FIR; that the prosecution witnesses have fully supported the prosecution case at the trial, but the learned Trial Court without appreciating the evidence properly has acquitted the respondents; and, that there were minor and ignorable contradictions in the evidence led by the prosecution. The learned counsel prays that the captioned criminal acquittal appeals may be allowed and the respondents may be convicted.

8. Learned Advocate for the respondents Nos.1 and 2 in Criminal Acquittal Appeal No.S-16 of 2020 has mainly contended that the learned Trial Court, after appreciating the evidence in proper manner, has acquitted the respondents as the prosecution has failed to prove its case against any of the respondents beyond a reasonable doubt. Learned Additional Prosecutor General, adopting the arguments of learned counsel for the respondents Nos.1 and 2 has submitted that there were material contradictions and deliberate and dishonest improvements in the statements of the PWs examined by the prosecution, and per him, the learned Trial Court by acquitting the respondents, has not committed any illegality. The learned Additional Prosecutor General, prays for dismissal of the instant criminal acquittal appeals.

10. I have considered the submissions of learned counsel for the appellant, learned counsel for the respondents No.1 and 2 and the learned Additional Prosecutor General, and have gone through the material brought on the record.

11. 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 non-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 refined." 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".

12. From a perusal of the record it would be seen that the incident is shown to have taken place on 12.08.2017 at 08:00 p.m., and whereas the FIR was lodged on 15.08.2017 at 1430 hours and there is no plausible explanation for such an inordinate delay of three days in lodgment of the FIR,; in FIR complainant Gul Muhammad has stated that Abdul Latif, Ajoob, Mian Bux and two unknown persons had committed the alleged offence, but in his evidence PW-1 Complainant Gul Muhammad Chandio has stated that "on 21.08.2017 I came to know that accused Ghaffar Ali son of Mehboob Brohi was involved in the abduction of my daughter who was shown as unknown in the FIR, police recorded my further statement; on 30.10.2017 I came to know that accused Muhammad Jan is also involved in this case, again CIA Police recorded my further statement, while PW Shawal Khan has stated that "police recorded my statement; we came to know on 21.08.2017 that accused Abdul Ghaffar is also involved in abduction of my sister; police recorded my further statement; thereafter on 30.10.2017 I also came to know that accused Muhammad Jan is involved in this case; I also recorded my statement after having knowledge of involvement of accused Muhammad Jan; and, whereas PW-2 Gul Bahar has stated that "on 12.08.2017 I along with my father, my brother Shawal Khan, my sister Ameena were available in our house when at about 8:00 p.m accused Abdul Latif, Mian Bux, Ayoub and two unidentified persons entered in our house. In cross-examination, he has stated that "my father disclosed the names of other accused namely Muhammad Jan and Ghaffar; I know accused Muhammad Jan and Ghaffar personally since long; my further statement was recorded at Police Station Mahota on 21.08.2017 and whereas PW-3 Shawal Khan has stated that "It is fact that my father came to know about the names of unidentified accused persons, who disclosed their names to me. It is fact that I recorded my further statement to police on the directions of my father. In cross-examination PW-1 complainant Gul Muhammad has stated that "I arrived at P.S. at 4:45 pm. I met with ASI Israr Ali and ASI Ali Muhammad Kehar; I do not remember as to who register my FIR from both police officers; while PW-2 Gul Bahar exhibit-10 has stated that "I along with my father and brother went at police station on 15.8.2017 for lodging of FIR at 2:30 p.m; we met with A.S.1 Ali Muhammad and subedar Israr Ali Shahani; I do not know who wrote the FIR from both officials and whereas PW A.S.I Ali Muhammad exhibit-12 in cross-examination has stated that "when the complainant appeared at police station for lodging FIR, I was alone present at police station; the complainant came at P.S. with his two sons Gul Bahar and Shawal; but PW Shawal Khan Chandio exhibit-9 did not state about his going with his father Gul Muhammad and brother Gul Bahar to police station at the time of lodging FIR; PW-1 Complainant Gul Muhammad to a suggestion has stated that "It is incorrect to suggest that my niece is given in marriage to elder brother of accused Abdul Latif, and whereas PW-2 Gul Bahar stated that "It is fact that we have given hand of my first cousin to elder brother of accused Abdul Latif; likewise PW-3 Shawal Khan has stated that "It is fact that daughter of any uncle is given in marriage to elder brother of accused Abdul Latif; PW-2 Gul Bahar has stated that "we also approached our Nekmard Sardar Khan; we only approached to Sardar Khan for return of my sister; and whereas PW-3 Shawal Khan has stated that "after the incident I along with my father and brother went to Meer Chandio, Nawab Sardar Ahmed, Raeees Sher Muhammad and Raees Allahdino and made complaint to them and requested for search of my sister, but PW-1 complainant Gul Muhammad did not state about their approaching Sardar Ahmed and/or Meer Chandio and others as is stated by PW-2 Gul Bahar and PW-3 Shawal Khan; PW-2 Gul Bahar has stated that "I along with my father and brother Shawal Khan went to the accused persons for return of my sister, but that has not been deposed by PWs namely Gul Muhammad and Shawal Khan; PW-1 Complainant Gul Muhammad has stated that "on 15.08.2017 I along with A.S.I.Israr Ali Shahani came at place of incident at 4:45 p.m; on motorcycle two persons came at place of Wardat namely Bagan and Abdul Karim who acted as mashirs; both mashirs were called by A.S.I at place of Wardat; while PW Israr Ali Shahani as stated that "I along with my staff namely Ameer Ali Shafique and Nadeem went to place of Wardat; two persons namely Bagan Ali and Abdul Karim were already available there, who acted mashirs of place of Wardat on my request; and whereas PW Bagan exhibit-11 has stated that "on 15.8.2017 I was available in my house at noon time on knocking of the door I went out of the house where Gul Muhammad Chandio and one police personnel were available there and they requested me to act as mashir then I along with them went to the house of Gul Muhammad Chandio; police prepared memo of place of Wardat in my presence and in presence of Abdul Karim; the police personnel and complainant came to me on motorcycle; co-mashir Abdul Karim was also called by complainant, who came at place of Wardat by foot; PW Israr Ali Shahani has stated that "we went to visit place of incident in police uniform, and whereas PW Bagan Ali has stated that "police personnel were in civil dress; PW Israr Ali Shahani has stated that "we consumed 10/15 minutes at place of Wardat in entire proceedings, and whereas PW Bagan Ali has stated that "police official consumed 30 minutes in preparation of mashirnama; we stayed about one hour at place of Wardat; PW-1 Complainant Gul Muhammad has stated that "on 15.08.2017 I along with A.S.I Israr Shahani came at place of incident at 4:45 p.m., and whereas PW A.S.I Israr Ali Shahani has stated that "we left P.S. at 1510 hours for inspection of the place of Wardat in private vehicle; the complainant party were on motorcycle while we were on private vehicle; moreover no since effort is shown to have been made by the police to recover the alleged abductee Mst. Amnna, whose evidence was very essential to substantiate the prosecution version, which adversely reflects upon the prosecution case.

13. The above infirmities; material and glaring contradictions; omissions and admissions adverse to the prosecution case; and, dishonest and deliberate improvements to strengthen the prosecution case in the statements by the PWs qua the contents of the FIR, and their initial statements under section 161 Cr.P.C, rendered the credibility of the prosecution witnesses doubtful and their evidence unreliable. Reliance in this context is placed on the Muhammad Mansha v. The State [2018 SCMR 772], wherein the Hon'ble Supreme Court of Pakistan has held that: Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that when ever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafique Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).

14. In view of what has been stated above, it is crystal clear that the prosecution case was full of doubts and the prosecution failed to prove its case against the respondents beyond a reasonable doubt, and, if a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession, but as matter of right in view of the well settled law, therefore, the learned Trial was right in acquitting the respondents in the captioned criminal acquittal appeals. Reference can be made to the cases of Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Mansha's case (2018 SCMR 772) and Muhammad Akram v. The State (2009 SCMR 230).

15. Under these circumstances, I am of the considered view that the learned Trial Court by acquitting the respondents has not committed any illegality and the conclusion of acquittal arrived at by the learned Trial Court, based on appreciation of evidence, cannot be termed to be arbitrary, fanciful, artificial, and ridiculous, therefore, the impugned acquittal judgments do not call for any interference in these criminal acquittal appeals, which being devoid of merits, are liable to be dismissed. These are the reasons of short order announced by me on 21.05.2020, whereby the Criminal Acquittal Appeals in hand were dismissed. JK/G-15/Sindh Appeals dismissed.