Cr.Acquittal Appeal No.S-106  of  2017

 

                                        For Regular Hearing

 

 

Date of hearing:    17.07.2017.

Date of judgment: 17.07.2017.

 

 

Mr. Shewak Ram Valecha Advocate for the appellant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

J U D G M E N T

 

Naimatullah Phulpoto, J. This Criminal Acquittal Appeal is filed by appellant/complainant Farooque Ahmed Jatoi against respondents/ accused Ghulam Hussain, Suhno and Malook, who were tried by learned Assistant Sessions Judge-II, Sukkur in Sessions Case No.67/2010. By order dated 03.05.2017 respondents/accused were acquitted under Section 265-K Cr.P.C, hence appellant has preferred this appeal.

 

2.                     Brief facts of the prosecution case are that FIR was lodged by complainant Farooque Ahmed against accused persons on 24.01.2010 at Police Station, Raza Goth, which was recorded vide crime No.02/2010 for offence under Section 337-F (iii), 337-H (ii), 452, 148, 149 PPC. After usual investigation, challan was submitted against accused Nadir, remaining accused were shown as absconders. After trial, accused Nadir was convicted by learned Assistant Sessions Judge-II, Sukkur. Against conviction and sentence appeal was preferred and it was heard by 5th Additional Sessions Judge, Sukkur and appeal was allowed. Conviction and sentence recorded against accused Nadir, vide judgment dated 03.05.2017 were set aside. Appeal against acquittal recorded in favour of accused Nadir was not challenged. Thereafter, accused Zahid was arrested, he faced trial and he was acquitted by the trial Court by judgment dated 11.09.2012 but no appeal against his acquittal was preferred by the complainant. Learned Addl.PG further pointed out that subsequently accused Sawan was arrested, he faced trial and he was acquitted on 26.03.2013 but his acquittal was not challenged. Rahib, Kamil, Ihsan, Mehrab and Wahid Bux also faced trial before the same trial Court and they were acquitted. Complainant did not file appeal against their acquittal. Lastly, respondents Ghulam Hussain, Suhno, Malook faced trial and they were acquitted under Section 265-K, Cr.P.C by learned Assistant Sessions Judge-II, Sukkur vide order dated 03.05.2017 and complainant has preferred appeal against their acquittal under Section 265-K, Cr.P.C.

 

3.                     Trial Court after hearing the learned counsel for the parties acquitted the accused under Section 265-K Cr.P.C vide order dated 03.05.2017 mainly for the following reasons:

 

“Perusal of case file at hand reflects that all the three present accused had voluntarily appeared before this Court on 24.04.2015 along with their counsel Mr.Muhammad Nawaz Qazi, who had filed copy of pre-arrest bail intimation granted to them by the Hon'ble 2nd Additional Sessions Judge, Sukkur on 13.04.2015 and on the same day, the accused were supplied with the case papers under a receipt at Ex.1 and thereafter, the case was ordered to be listed for framing of charge against the present accused. Formal charge against them was framed at Ex.2, to which the accused pleaded “not guilty” and claimed for trial, such pleas of accused are recorded under Section 265-E(I) Cr.P.C at Ex.2/A to 2/C respectively and thereafter, the prosecution examined Farooque Ahmed (complainant) on 09.03.2016 at Ex.3.

            Perusal of case file further reflects that prior to this co-accused Nadir s/o Muhammad Hassan was tried by this Court, the prosecution had examined ASI Qadir Bux at Ex.7, who had produced FIR, SIP Atta Muhammad at Ex.8, who had produced memo of inspection of injuries and site inspection, complainant Farooque Ahmed at Ex.9, PW Muhammad Hashim at Ex.10, Muhammad Ibrahim (mashir of injuries) at Ex.11, Dr.Gul Hassan at Ex.13, who had produced copy of letter issued by Police of treatment, provisional medical certificate and final medical certificate and thereafter, the prosecution closed its side vide statement dated 12.07.2011 at Ex.14. On 16.08.2011, the statement of co-accused Nadir was recorded at Ex.15. Lastly, the co-accused Nadir by a judgment dated 28.10.2011 was convicted by this Court under Section 265-H (ii) Cr.P.C. Case file further reflects that thereafter, the co-accused Nadir preferred a Cr.Appeal No.12/2011 Re-Nadir VS The State, before the Hon'ble 5th Additional Sessions Judge, Sukkur, who was pleased to allow the appeal vide its judgment dated 23rd December, 2011 and set aside the judgment passed by this Court and acquitted the co-accused Nadir from the charge extending him benefit of doubt.

            Perusal of case file further reflects that prior to this co-accused Zahid s/o Ghazi Khan Mahar on 11.09.2012, Sawan s/o Budho Mahar on 26.03.2013 and Rahib s/o Paryal Mahar, Kamil s/o Mehmood Mahar, Ahsan s/o Khair Muhammad Mahar, Mehrab s/o Khair Muhammad Mahar and Wahid Bux s/o Ghazi Mahar on 28.05.2013 have also been acquitted by this Court under Section 265-K Cr.P.C while keeping the case on dormant file against absconding accused.

            I have carefully considered the case file as well as evidence earlier adduced by the PWs. Case file reflects that admittedly co-accused Nadir after completing all legal formalities was convicted by this Court through judgment dated 28.10.2011, which was assailed in Criminal Appeal No.12/2011 and was decided by the Hon'ble 5th Additional Sessions Judge, Sukkur through its judgment dated 23.12.2011, whereby the judgment of this Court was set aside and accused was acquitted from the charge by giving him benefit of doubt. According to learned ADPP for the State, the judgment passed by the Hon'ble appellate Court has not been challenged before any forum, it seems that the findings of Hon'ble appellate Court are intact. Moreover, co-accused Zahid s/o Ghazi Khan Mahar on 11.09.2012, Sawan s/o Budho Mahar on 26.03.2013 and Rahib s/o Paryal Mahar, Kamil s/o Mehmood Mahar, Ahsan s/o Khair Muhammad Mahar, Mehrab s/o Khair Muhammad Mahar and Wahid Bux s/o Ghazi Mahar on 28.05.2013 have already been acquitted by this Court under Section 265-K Cr.P.C while keeping the case on dormant file against the absconding accused.

            In view of the above circumstances of the case, I am of the considered view that recording of fresh evidence of the PWs for the present accused would be fruitless as it will drag the accused unnecessarily and no fruitful purpose would be served, if the further trial is conducted even then the prosecution case will not end into conviction of the accused, therefore, it is fit case where provisions of Section 265-K Cr.P.C are to be invoked. Further trial of the case in hand will be a futile exercise and would be the wastage of time of this Court. Looking to the entire material/evidence brought on record, I, hereby acquit the present accused Ghulam Hussain s/o Islam Mahar, Suhno s/o Islam Mahar, Malook s/o Rabban Mahar under Section 265-K Cr.P.C on the basis of judgment of the Hon'ble appellate Court. They are present on bail, their bail bonds stand cancelled and surety is discharged. While case against the rest of absconding accused is already kept on dormant file.”

 

4.                    Learned counsel for the appellant/complainant contended that trial Court has recorded acquittal in favour of the respondents without recording evidence in hasty manner. He further contended that direct role was assigned to the respondents but this fact has been ignored by the trial Court and lastly it is contended that trial Court did not appreciate settled principles of law.

 

5.                    Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General submitted that allegations against all the accused were general in nature and co-accused were acquitted previously and their acquittal have not been questioned/challenged by the complainant. He has further submitted that scope of appeal against acquittal is narrow and trial Court has rightly acquitted the accused keeping in view the facts and circumstances of the case. Learned Addl. P.G argued that appeal against acquittal is without merit.

 

6.                     I have carefully perused the evidence of the complainant recorded by the trial Court in which complainant Farooque Ahmed has given the entire episode of the incident and stated that all the accused fired upon him. He has admitted accused Nadir was convicted by the trial Court and was acquitted by 5th Additional Sessions Judge, Sukkur, on 03.12.2011. Complainant has also admitted at the trial that co-accused Zahid, Sawan, Rahib, Kamal, Ehsan, Mehrab and Wahid were also acquitted by the trial Court. He has also admitted that incident took place on 19.01.2010 and FIR was lodged after five days. He has also admitted that names of the co-accused were placed in column No.2 by the IO and he had not challenged it. Eye-witness Muhammad Hashim has also deposed that all the accused fired and most of the accused have been acquitted by the trial Court. In my considered view, trial Court for the valid and sound reasons, has recorded acquittal in favour of the respondents Ghulam Hussain, Suhno and Malook under Section 265-K, Cr.P.C, as co-accused were also acquitted by the trial Court after recording the evidence. Judgment of the trial Court does not appear to be speculative or perverse. Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of the innocence is significantly added to the cordinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty. In other words, the presumption of innocence is doubled as held by the Honourable Supreme Court of Pakistan in the case of The State v. Abdul Khalique and others, PLD 2011 SC 554. The relevant para is reproduced hereunder:-

 

“16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

 

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

 

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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 or wholly artificial or a shocking conclusion has been drawn. Moreover, in 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 (Emphasis supplied). 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

 

 

7.                    For the above stated circumstances, the findings recorded by the trial court that there was no probability of conviction of accused are neither perverse, arbitrary nor speculative. As such, there is no merit in the appeal against acquittal. Acquittal recorded by trial Court in favour of respondent/accused is based upon sound reasons, which require no interference at all. As such, the appeal against acquittal is without merit and the same is dismissed.

 

 

 

                                                                                JUDGE

 

N.M.