2014 PLP 2703 (YLR)

AFTAB AHMED GORAR, J.

Through this Criminal Acquittal Appeal appellant Mst. Jamila has challenged the Order dated 21-1-2012 passed by learned 1st Judicial Magistrate, Karachi East in Criminal Case No.1715 of 2010 whereby respondents Nos.2 to 5 have been acquitted from the charge under section 506-B/34, P.P.C. Precisely, the facts of the case are that on 29-7-2010 complainant/appellant lodged F.I.R. No.244/2010 at Police Station PIB Colony under section 506-B/34, P.P.C. stating therein that her daughter namely Sobia had been murdered in respect whereof murder case is pending against one Naveed Pathan son of Zahid Pathan. It was further alleged that the family of said Naveed Pathan had been threatening her to withdraw the case and in this connection on 6-7-2010 the complainant along with her brother Bashir son of Abdul Ghani including her children were available at her house when at 5.00 p.m. mother of Naveed Pathan namely Mst.Naseema along with her sister-in-law namely Asia, her brother Majid and nephew Amjad came at complainant's house. Accused Majid was holding a T.T. pistol in his hand who threatened the complainant to withdraw the case otherwise she would be killed and then all of accused persons fled away. After completion of usual investigation, the I.O. submitted the challan against the accused persons in the concerned court. A formal charge was framed against the accused persons to which they did not plead guilty and claimed to be tried. In support of its case, prosecution examined P.W. Mst. Jameela complainant who produced F.I.R. and memos of site inspection and arrest of accused Majid, P.W. Ghulam Sarwar, husband of the complainant, P.W. Mohammad Bashir, P.W. SIP/I.O. Arshad Mehmood who produced charge sheet and entry No.38 and P.W. Asif and thereafter prosecution side was closed. Statements of accused under section 342, Cr.P.C. were recorded wherein they denied the prosecution allegations and claimed to be innocent. They further stated that prosecution witnesses have falsely deposed against them, however, neither they examined themselves nor produced any witness in their defence. The learned trial court after hearing the arguments of the defence counsel and learned ADPP, acquitted the respondents Nos.2 to 5 vide impugned judgment, hence this Criminal Acquittal Appeal. I have heard learned counsel for the parties and have gone through the material available on the record with the assistance of the learned counsel for the parties. Learned counsel for the appellant contended that the trial court has erred on facts and in law while passing the acquittal order; that the trial court has passed the acquittal order in a hasty and mechanical manner without appreciating the facts of the case and the law involved. She further contended that prior to this the accused persons had murdered brutally the daughter of the complainant namely Sobia, after committing rape on her and thereafter they were pressurizing the complainant party to withdraw the said case and on their refusal they had extended threats of dire consequences to the complainant party. According to her, the prosecution had succeeded in proving its case against the accused and the minor discrepancies in the evidence should have been ignored by the trial court but on the basis of those minor contradictions, the trial court had acquitted the accused persons. She prayed for setting aside of the acquittal order. Conversely, learned counsel for the respondents contended that the order passed by the trial court is just and proper and sound reasons have been assigned for passing the order. He further contended that the standard of assessing evidence in appeal against acquittal is quite different from those laid down for appeal against conviction. According to him, there are glaring contradictions in the depositions of the prosecution witnesses, the benefit whereof was rightly given to the accused by the trial court, hence the acquittal order does not require any interference by this court. He prayed for maintaining the acquittal order passed by the trial court. Learned A.P.G. also supported the impugned judgment and contended that the order has been passed according to legal norms and cogent reasons have been given for acquittal of the accused. It seems that there are contradictions in the statements of the prosecution witnesses. For instance, complainant Mst. Jameela in the F.I.R. has not stated that the accused persons had attacked upon her husband and that she was also beaten by lady accused persons but contrary to that, in her deposition, she has stated so which amounts to improvement and exaggeration. Likewise, in the F.I.R. it was not stated by her that accused Majid kept his pistol on her head but in her deposition she has alleged this fact. According to her, the incident took place on 6-7-2010 whereas the F.I.R. was lodged on 29-7-2010 i.e. after 23 days of the alleged incident for which no plausible explanation has been furnished. Similarly, P.W. Ghulam Sarwar, who is husband of the complainant, in his deposition has not said a single word that the accused persons had attacked upon him and that his wife was also beaten by female accused and that accused Majid had kept pistol on the head of the complainant as alleged by the complainant in her statement. P.W. Abdul Ghani deposed that police had recorded his statement on 7-7-2010, however when he was confronted with his statement under section 161, Cr.P.C., he corrected himself saying that his statement was recorded by the police on 31-7-2010. In the same manner, P.W. Asif, who has admitted in his deposition that at the time of the incident he was present at the house of the complainant, has not alleged that accused persons had attacked Ghulam Sarwar or the lady accused had beaten the complainant or, for that matter, accused Majid had kept pistol on the head of the complainant. In view of above glaring contradictions in the evidence of the prosecution witnesses, serious doubts have developed in the prosecution case. Needless to say that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubt in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State (1995 SCMR 1345) the honourable Supreme Court held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." It may also be observed that obvious approach for dealing with the appeal against the acquittal would be different and distinguishable from that of the appeal against conviction because in the former case presumption of double innocence of the accused is attached to the order of acquittal. It is well settled that the order of acquittal can only be interfered with if the same, on the face of it appears to be perverse, arbitrary, illegal, wholly illogical or unreasonable or in case the reasons assigned by the trial court for acquittal are speculative and of artificial nature or the findings are based on no evidence. The upshot of above discussion is that the Cr. Acquittal Appeal is dismissed in limine. Above are the reasons for short order passed on 29-4-2014. HBT/J-10/Sindh Appeal dismissed.