Syed Abdul Nabi V. Baz Muhammad and 4 others,

2019 M L D 836 [Balochistan] Before Naeem Akhtar Afghan and Zaheer- ud-Din Kakar, JJ Syed ABDUL NABI ---Appellant Versus BAZ MUHAMMAD and 4 others ---Respondents

Criminal Acquittal Appeal No.259 of 2017, decided on 29th October, 2018.

(a) Penal Code (XLV of 1860) ---

----Ss. 302 & 34 ---Criminal Procedure Code (V of 1898), S. 417(2- A)---Qatl -i-amd, common intention ---Appeal against acquittal ---Appreciation of evidence ---Extra -judicial confession--- Accused -respondents were charged for committing murder of brother of complainant's brothers ---Incident was unseen ---No weight could be attached to memo of disclosure which was in police custody ---Disclosure of accused -respondents was not corroborated by other independent piece of evidence, therefore, Trial Court had rightly discarded the same ---No incriminating material had come on record, which could connect the accused- respondents with the commission of crime ---Appeal against acquittal was dismissed accordingly. Wazir Muhammad and another v. State 2005 S CMR 277; Liaquat Ali v. The State 1999 PCr.LJ 1469; Tahir Javed v. The State 2009 SCMR 166 and Zafar Iqbal and others v. The State 2006 SCMR 463 rel.

(b) Penal Code (XLV of 1860) --- ----Ss. 302(b) & 34--- Qanun- e-Shahadat (10 of 1984), Art. 40---Qatl- i-amd, common intention ---Appreciation of evidence ---Disclosure of accused ---Effect ---Disclosure of accused during custody was inadmissible.

(c) Criminal Procedure Code (V of 1898) ---

----Ss. 164 & 364--- Extra -judicial confession ---Scope ---Extra -judici al confession is a very weak type of evidence and no conviction can be awarded without strong corroboration. (d) Penal Code (XLV of 1860) ---

----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Recovery of crime empties ---Reliance---Scope---Record showed that five crime empties of pistol were recovered from the place of occurrence ---Such recovery was deemed to be corr oborative in nature and used for the support of direct evidence ---If direct evidence was disbelieved, it would not be safe to maintain conviction on confirmatory evidence.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(e) Criminal t rial--- ----Medical evidence---Scope ---Medical evidence is a supporting type of evidence, which may confirm the ocular account with regard to receipt of injury, nature of injury, and kind of weapon used in the occurrence ---Medical evidence cannot identif y the assailants.

Muhammad Tasweer v. Hafiz Zulqarnain and 2 others PLD 2009 SC 53 and Mursal Kazmi v. State 2009 SCMR 1040 rel.

(f) Criminal Procedure Code (V of 1898) --- ----S. 417--- Appeal against acquittal ---Double presumption of innocence ---Sc ope---When an accused is acquitted from the charge by a court of competent jurisdiction then double presumption of innocence is attached to the order ---Acquittal order would not be interfered with unless it is found arbitrary, capricious, fanciful and agai nst the record.

Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 rel. Alla-ud-Din Saeed for Appellant. Date of hearing: 23rd October, 2018. JUDGMENT

ZAHEER -UD-DIN KAK AR, J. ---This Criminal Acquittal Appeal is directed against the judgment dated 31.07.2017 (the impugned judgment), passed by the Sessions Judge, Pishin (the trial Court), whereby the accused/respondents Nos.1 to 4 were acquitted of the charge.

2. Precisely stated facts of the case are that on 23.7.2015 at about 3/4 p.m., the complainant received telephonic information that the dead body of his brother Muhammad Rafiq is lying in Jagda Dam near Killi Kamalzai. Upon such information, he along with levies per sonnel went there and took the dead body to Civil Hospital, Pishin. The levies officials also took into possession six empties from the place of occurrence. Consequently, FIR No.55 of 2015, under Sections 302/34, P.P.C. was registered at Levies Headquarter Thana, Pishin.

3. After formal investigation, report under Section 173, Cr.P.C. was submitted before the trial Court and the respondents were sent to face the trial. The trial Court seized with the matter, framed charge against the respondents to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced and examined the following witnesses:

PW-1 Abdul Baqi levies Khasadar was marginal witness to the recovery memo. Ex - P/1-A whereby the dead body of the deceased was taken into possession by the Investigating Officer, recovery memo. of blood- stained earth Ex -P/1-B and recovery memo. of five crime empties of pistol Ex -P/1-C.

PW-2 Muhammad Tahir complainant reiterated the contents of fard-e-bayan and produced the same as Ex -P/2-A. PW-3 Syed Abdul Nabi was father of the deceased.

PW-4 Dr. Muhammad Noor Baloch, Police Surgeon, Provincial Sandaman Hospital, Quetta conducted examination of the dead body and opined that the death has been caused with firearm. He issued death certificate Ex -P/3-A (sic).

PW-5 Muhammad Siddique was brother of the deceased. PW-6 Inayatullah, Dafedar Levies, was witness to the disclosure memos. Ex- P/6-A and Ex-P/6-B of accused Baz Muhammad and Nazar Ali, respectively.

PW-7 Abdul Nafay, Dafedar Levies, was witness to the disclosure memo. Ex -P/7-A of accused Fateh Muhammad. PW-8 Junaid Khan Naib Tehsildar/Investigating Officer, conducted investigation, recorded statements of the witnesses, produced application of Syed Abdul Nabi as Ex -P/8-A, copy of roznamcha Ex -P/8-B, site map as Ex -P/8-C, inquest report as Ex -P/8-D, FIR as Ex - P/8-E, challan Ex -P/8-F, supplementary challan Ex -P/8-G.

PW-9 Muhammad Siddique Dafedar/2nd Investigating Officer, duri ng investigation he took into possession 18 pages of documents related to the instant case and produced the recovery memo. as Ex -P/9-A, recorded statements of witnesses, produced site map Ex -P/9-B, challan Ex -P/9-C, FSL report Ex -P/9-D, Challans Ex -P/9-E and Ex -P/9-F.

4. On completion of prosecution evidence, the respondents were examined under Section 342, Cr.P.C., wherein they professed innocence and denied the allegations levelled against them. The respondents did not record their statements on oath nor led any witness in their defence. On conclusion of the trial, the trial Court acquitted the respondents vide impugned judgment dated 31.7.2017, hence this acquittal appeal.

5. We have heard learned counsel for the appellant and have gone through the available record. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. The prosecution case is based on the following pieces of evidence:

(i) Disclosure memo. of respondents Nos.1, 2 and 3.

(ii) Recovery of five crime empties of pistol from the place of occurrence. (iii) Medical evidence.

(i) Disclosure memo.

6. The incident was admittedly unseen. The only piece of evidence to connect the respondents with commission of alleged offence is disclosure memos. of the respondents Nos. 1 to 3. In order to judge veracity of above said piece of evidence, we must have a glance over its evidentiary value in the light of relevan t provision of law. It is settled principle of law that disclosure of an accused during custody is inadmissible being hit by Articles 38 and 39 of the Qanun- e-Shahadat Order, 1984. There is no cavil to the proposition that the extra judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of the matter hardly needs any comments. It may be noted here that since extra- judicial confession is easy to procure as it can be culti vated at any time, therefore, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. Hence, no weight can be given to such disclosure, while in police custody. Reliance in this r egard is placed to the cases of Wazir Muhammad and another v. State 2005 SCMR 277. Liaquat Ali v. The State 1999 PCr.LJ 1469 Lahore, Tahir Javed v. The State 2009 SCMR 166 and Zafar Iqbal and others v. The State 2006 SCMR 463. In the instant case disclosur es of the respondents Nos.1 to 3 are not corroborated by the other independent piece of evidence, therefore, the trial Court rightly discarded the same.

(ii) Recovery of five empties of pistol from the place of occurrence. 7. So far as recovery of fiv e crime empties is concerned, it is cardinal principle of law that the recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be saf e to maintain conviction on confirmatory evidence. Reliance in this regard is placed on the case of Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120, wherein it was held as under:

"However, in a case of direct evidence, the other pieces of evid ence are used for corroboration or in support of direct evidence. When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."

(iii) Medical Evidence 8. As far as medical evidence is concerned, it is settled law that the medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury(s), nature of the injury(s), kind of weapon used in the occurrence, but not able to identify the assailants. Reference in this context may be made to the case of Muhammad Tasweer v. Hafiz Zulqarnain and 2 others, PLD 2009 SC 53, wherein it was held by the Hon'ble Supreme Court that the medical evidence may confirm the ocular evidence with regard to th e seat of the injury, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime. In another case titled Mursal Kazmi v. State 2009 SCMR 1040, the Hon'ble Supreme Court held that the medica l evidence only supports the prosecution case to the extent that the deceased lost his life due to firearm injury but it does not lead to the culprits.

9. On re -appraisal of the evidence on file, we find that no incriminating material has come on record, which could connect the respondents with the commission of crime, because the occurrence was unseen and the counsel for complainant has not been able to point out any piece of evidence which could persuade us to hold that the conclusion arrived at by the trial court is against the evidence brought on record. The trial Court has assigned cogent and valid reasons in the impugned judgment for disbelieving the prosecution version.

10. Needless to emphasize 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/judgment is arbitrary, capricious, fanciful and against the record. In this regard, reference can be placed to the case of Rahimullah Jan v. Kashif and another PLD 2008 SC 298, wherein it was held as follows by the Hon'ble Supreme Court:

"It needs no reiteration that when an accused person is acquitted from the charge by a Cour t 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".

In the case of Muhammad Man sha Kausar v. Muhammad Asghar and others 2003 SCMR 477, it was held by the Hon'ble Apex Court as under: "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 findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction o r misreading non- reading of evidence.... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."

For the above reasons, the appeal is dismissed in limine. JK/80/Bal. Appeal dismis sed.