2020 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

Through instant acquittal appeal, the appellant/complainant has assailed the judgment dated 19.01.2013 passed by learned IV-Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.116 of 2005, arising out of Crime No.35/2005 Police Station, Ubauro offence under section 460, P.P.C., whereby learned trial Court has acquitted respondents Nos.1 to 3 from the charge.

2. Succinctly, the facts of the prosecution case are that on 07.04.2005 at 0130 night appellant/complainant Ghulam Sarwar and his son Safdar Ali woke-up on some noise and saw on the light electric bulb five persons, having K.Ks, rifle and pistol, standing near the motor cycle of appellant/complainant. His son Safdar Ali challenged the accused persons whereupon one of them fired upon him with his K.K which hit him and he fell down. The appellant/ complainant raised cries which attracted to-PWs Abdul Haq, Sher Muhammad and others, who also saw the accused persons. The accused persons seeing the PWs and villagers went away while making aerial firing. The appellant/complainant party went over Safdar Ali and found him dead. Leaving the PWs over the dead body, the appellant/complainant along with other villagers tracked the foot prints of the accused persons, foot prints of three accused led them towards katcha side, while foot prints of two culprits led them towards the house of Soomar Dasti. Thereafter the appellant/ complainant went at PS and lodged the FIR.

3. During the course of investigation on 10.05.2005, the police arrested the respondents/accused and on 13.05.2005 produced them before learned Magistrate for identification parade. The appellant/ complainant party identified them during parade. Thereafter the investigating officer submitted challan of the case.

4. A formal charge was framed against the respondents/accused at Ex.2 to which they pleaded not guilty and claimed to be tried.

5. At trial the prosecution examined PW/PC Imran Ali at Ex.7, appellant/complainant Ghulam Sarwar at Ex.8, who produced FIR, receipt and his further statement at Ex.8-A to 8-C, PW Abdul Haq at Ex.9, who produced his 164, Cr.P.C. statement at Ex.9-A, PW/SI Yar Muhammad Bugti at Ex.10, who produced memo of place of incident, inquest report, mashirnama of clothes of deceased and memo of arrest at 10-A to 10-D, PW Rafiq Ahmed at Ex.11, ASI Hazar Khan at Ex.13, Medical officer Dr. Liaqat Ali Bhutto at Ex.14, who produced postmortem report of deceased Safdar Ali at Ex.14-A, Tapedar Qurban Ali at Ex.16, who produced sketch at Ex.16-A and learned Judicial Magistrate Abdul Waheed Shaikh at Ex.17 who produced memo of identification parade at Ex.17-A, thereafter learned incharge DDPP for the State closed the side of prosecution vide his statement at Ex.18.

9. On closure of prosecution side, statements of respondents/ accused were recorded at Ex.19 to 21 as required under section 342, Cr.P.C. respectively wherein they denied the allegations levelled against them and claimed their innocence. They did not examine themselves on oath in disproof of the charge nor examined any witness in their defence.

7. On evaluation of evidence so produced by the prosecution, learned trial Court acquitted the respondents/accused from the charge through the impugned judgment which has been assailed by way of instant acquittal appeal.

8. Learned counsel for the appellant/complainant contended that the impugned judgment is not warranted under the law; that the learned Judge while passing impugned judgment did not apply his judicious mind; that a young boy of 25 years of age has been murdered brutally and his unnatural death has been confirmed by the Medical Officer; that the appellant/complainant and eye-witness Abdul Haq have fully supported the prosecution case but their evidence has not been considered by trial Court. By contending so he sought for adequate punishment to the respondents/accused.

9. Learned Deputy Prosecutor General appearing for the State supported the impugned judgment.

10. We have considered the arguments advanced by learned counsel for the appellant/complainant, learned Deputy Prosecutor General for the State and have examined the material available in the file. It is the case of prosecution that on the night of incident the appellant/complainant and his son deceased Safdar Ali woke up on some noise and saw five persons, having KKs, rifle and pistol standing near their motor cycle and on the challenge of deceased one of them fired from his K.K upon deceased Safdar Ali which hit him and he fell down. The cries were attracted to PWs Abdul Haq and Sher Muhammad who also saw the accused persons. It is necessary to mention here that at the commencement of trial of the case appellant/complainant filed an application at Ex.5, stating therein that eye-witness Sher Muhammad and mashir Muskan have been won over by the accused, therefore he does not want to examine them and on the basis of his application they were given upon by learned 1/c DDPP for the State while second eye-witness Abdul Haq is a chance witness as he is resident of another district, which has been admitted by appellant/complainant in his cross-examination by stating that "It is correct to suggest that I have not given local witness in this case and P.W. Abdul Haq is my brother-in-law and resident of District Kashmore."

11. The names of respondents/accused do not transpire in the FIR and the case of the prosecution is based upon identification parade arranged on 13.05.2005 after six days of the incident, although, as per evidence of investigating officer, the respondents/accused were arrested on 10.05.2005. The witnesses at the time of identification parade did not disclose the role of the respondents/accused. In such circumstances the identification of respondents/accused carries no value in the eyes of law. Furthermore, the appellant/complainant in his cross-examination deposed that "Accused are my relatives. It is correct that accused Eidan is married with daughter of Ghulam Qadir and she is my niece ......... The accused came on the death ceremony of my son after the five days of incident along with their family" PW Abdul Haq also deposed in his cross-examination that "Police disclosed the names of accused who were in police custody ............ It is correct to suggest that prior to the identification parade I have well known to the accused." Learned Magistrate in his evidence deposed that "On 13.05.2005 I was posted as Civil Judge and Judicial Magistrate Ubauro where investigation officer produced P.W. Abdul Haq son of Karim Bux for recording his statement under section 164, Cr.P.C. Arrested accused were also produced in police custody. Such statement of P.Ws were recorded in open Court in presence of arrested accused as per verbatim with my signature. On the same date I.O. also requested far identification parade of the arrested accused namely Todo son of Qadir Bux, Mir Khan son of Qadir Bux and Eidan son of Qadir Bux." This clearly shows that not only the respondents/accused were previously known to the appellant/complainant party but they were present in Court at the time of recording of 164, Cr.P.C. statement of PW Abdul Haq, hence their implication in the case on the basis of Identification parade, which is too against the settled principles of administration of criminal justice, creates serious doubt and the learned Additional Sessions Judge has rightly resolved the benefit of doubt in favour of respondents/accused.

12. Apart from above there are many contradictions in the evidence of prosecution witnesses which also create doubt and same have rightly been considered by learned Additional Sessions Judge.

13. In view of above, we are of the firm opinion that the impugned judgment passed by learned Additional Sessions Judge, Mirpur Mathelo is based on proper appreciation of the evidence which is not fanciful or arbitrary. It is pertinent to mention here that when an accused person is acquitted by a competent Court of law having jurisdiction, then double presumption of innocence is attached to its judgment. In this regard reliance can be placed upon judgment delivered by Honourable Supreme Court in case of Muhammad Aslam v. Sabir Hussain and others reported in 2009 SCMR 985, wherein it has been observed as that: "It needs no reiteration that when an accused 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 Asgar and others 2003 SCMR 477 "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled 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 or non-reading of evidence..... Law requires that Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."

14. For what has been discussed above, we reached at the conclusion that the prosecution has failed to bring home the charge against respondents Nos. 1 to 3 beyond reasonable doubt and the learned counsel for the appellant has failed to point out any misreading or non-reading of the evidence, therefore, instant acquittal appeal being devoid of merits is dismissed in limine. SA/G-25/Sindh Appeal dismissed.