2006 PLP 346 (YLR)

SHAMSUDDIN HISBANI, J.

Through the instant criminal acquittal appeal, appellant, Muhammad Hashim has agitated the judgment dated 12-6-2002, passed by IInd Additional Sessions Judge, Badin, whereby respondents Nos.1 to 8 were acquitted of the charge framed against them.

2. Prosecution case precisely stated is that, appellant/complainant, Muhammad Hashim on 16-9-1998 lodged report at Police Station, Tando Bago, which was registered as Crime No.66 of 1998, alleging therein that on 11-8-1998 he was intercepted on his way to village by respondents, armed with deadly weapons with intention to kill him. Respondents Gul Hassan and Ghulam Mustafa, were empty handed and they instigated other respondents not to spare him. Respondents Ameer Haider Shah, armed pistol, revolver, fivand Manthar Shah having p him but he did not sustain any hurt. P.Ws., Muhammad Umar, Muhammad Moosa, Master Iqbal and Budho Khan reached at spot. On seeing them the respondent fled away. Appellant reported the matter to Nek Mards and ultimately moved an application to Senior Superintendent of Police, Badin, on whose directions the F.I.R. was registered.

3. The investigation was conducted and the challan sheet against the respondents was presented before the Court. The respondents did not plead guilty to the formal charge framed against them by the trial Court. The prosecution in order to prove its case examined six witnesses namely Muhammad Hashim appellant, Muhammad Umar, Muhammad Moosa, Budho Khan, Muhammad Ali and Abdullah Khan S.I.P. The respondents in their statements recorded under section 342, Cr.P.C. denied the allegations and pleaded innocence. They declined to examine themselves on oath. No defence was led by them. On appraisal of the material available on record, learned trial Judge acquitted the respondents.

4. The main contention of learned counsel for appellant was that there was sufficient evidence led by the prosecution to warrant their conviction, but learned trial Court did not appreciate the same in accordance with law and recorded erroneous finding of acquittal. According to him, the facts as stated in the F.I.R. were fully corroborated by appellant/complainant Muhammad Hashim. The version given by him was further supported by witnesses of the occurrence namely Muhammad Umer, Muhammad Moosa and Budho Khan. In support of his contention, he placed reliance on Falik Sher v. State 2003 YLR 2572.

5. On the other hand, learned Assistant A.-G. has supported the finding of acquittal and contended that the version given by complainant Muhammad Hashim, witnesses Muhammad Moosa, Budho Khan and Muhammad Umer in absence of any corroboration from independent quarter was not faith inspiring learned the sameiwas rightly disbelieved by According to him, there was nothing wrong in the finding arrived at? the trial and legal which was based on proper scrutiny of the evidence brought to the record.

6. Mr. Muhammad Ishaque Khoso, learned counsel for the respondents Nos.1 to 8 argued that there was admitted enmity between the parties and the respondents were involved falsely with the object to harass them so that they should surrender their right in the water course. He contended that no independent witness was examined before the trial Court to corroborate the version of complainant. The prosecution witnesses being related inter se were interested and inimical to the respondents. He referred the evidence of P.Ws. Muhammad Umer, Budho Khan, Muhammad Moosa and pointed out material discrepancies in their statement recorded in trial Court. Relying on the case law Munawar Shah v. Liaquat Hussain 2002 SCMR 713 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261, he stressed that presumption of double innocence of the accused is attached to the order of acquittal and the prosecution had failed to produce tangible evidence to establish the charge against the respondents as such they were rightly acquitted vide the impugned judgment by learned trial Court.

7. On bare perusal of the impugned judgment, it would appear that the F.I.R. was lodged after delay of more than one month of the incident. Appellant/ complainant had nominated as many as eight persons as accused in the case alleging that two of them namely Ameer Haider Shah and Manthar Shah fired direct shots at him. Co-accused Ali Ghulam and Muhammad carrying hatchets, Ghulam Rasool and Mohib Ali having lathis attempted to inflict injuries to him but they disappeared when challenged by the witnesses. P.W. Muhammad Umer in the first instance denied that complainant was his nephew but later on admitted that he was son of his brother Budho. A person who can change his statement within such a short period can go to any extent and no reliance could be placed on his testimony. The version given by him was rightly disbelieved by the trial Court. P.W. Abdullah Khan, Sub-Inspector, who conducted the investigation, deposed that 161, Cr.P.C. statements of P.Ws. Umer, Moosa, Budho and Iqbal were recorded on the day of lodging the F.I.R. P.W., Muhammad Moosa had stated that his statement was recorded by the police after about one hour of the incident. In such state of affairs, the evidence adduced by the prosecution being untrustworthy, defective and unreliable inspired no confidence.

8. The evidence of eye-witnesses related inter se cannot always be rejected for the only reason that they were closely related to each other but the same can safely be acted upon, if it was faith inspiring, convincing and corroborated on material particulars of the case. In the case in hand, the incident had taken place at 4.00 p.m. out of eight, two accused are said to have fired direct shots at complainant, but he did not sustain any injury. Nothing incriminating had been recovered from possession of the accused so as to connect them with commission of the crime. The case of the prosecution suffers from several infirmities as noted earlier. The witnesses produced by the prosecution failed to impress the trial Court about their credibility and as such, the order of acquittal was passed in the case. It is universally recognized principle of law that an accused is always to be presumed innocent unless proved otherwise.

9. This is a case wherein appeal has been filed against the acquittal order. It is well settled that finding of trial Court cannot be disturbed or interfered with unless the record shows that there is high degree of credibility in the evidence of prosecution witnesses. The order of acquittal creates double presumption of innocence in favour of accused. Muhammad Asghar v. State PLD 1994 SC 301 may be cited with advantage in this regard. The required degree of evidence to upset the double- presumption of innocence in favour of accused is not available in the instant case as discussed in foregoing para. Keeping in view the principle laid down by C Honourable Supreme Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Munawar Shah v. Liaquat Hussain 2002 SCMR 713 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261, it is manifest that in the case in hand the finding of acquittal arrived at by the trial Court is not open to interference. With due regards it may be observed that the authority cited by learned counsel for appellant is absolute different from the facts of the case in hand. It would be seen that in the cited murder case, the eye-witnesses had no motive to falsely implicate the accused and as such their relationship with deceased was not considered sufficient to discard the evidence which otherwise was trustworthy. In the instant case, as already stated, the enmity between the parties stands established through the evidence led by the prosecution. P.W. Budho Khan admitted before the trial Court that the case against him and others was filed by the accused prior to this incident. As such, they being inimical, and interested witnesses, their evidence was rightly discarded by the trial Court.

10. In view of the aforesaid facts and reasons, I am of the considered view that the impugned judgment of the learned trial Court does not suffer from any error of law or jurisdiction. It stands established that the witnesses being inimical towards the respondents/accused had reason to have deposed falsely against them. This criminal acquittal appeal being without any substance stands dismissed in limine. Above are the reasons for the short order passed on 21-11-2005. H.B.T./M-1/K????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.