2010 Y L R 1083
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
LIAQUAT ALI ---Appellant
Versus
SABRULLAH and 4 others ---Respondents
Criminal Acq. Appeal No.363 of 2008, decided on 1st February, 2010.
(a) Penal Code (XLV of 1860) ---
----Ss. 302/147/148/149 ---Criminal Pro cedure Code (V of 1898), S.417(2 -A)---Qatl-i-amd
and rioting ---Appeal against acquittal ---Eye-witnesses had not assigned any specific role of
firing to the accused on the deceased, for which only the absconding accused was made
responsible ---Mere presence of accused at the spot, even if believed did not contribute any
offence ---No crime weapon was recovered from the accused ---Version of the
complainant was not suppor ted by any independent evidence ---Common object of
accused in commission of offence was not indicated by the record, nor they had been
proved to be members of an unlawful assembly ---No incriminating material had come on
record to link the accused with the crime ---Nine persons having been involved for a single
murder, false implication of accused in the case could not be ruled out ---Impugned
judgment did not suffer from any illegality, irregularity, misreading or non -reading of
evidence ---Appeal against acqu ittal of accused was dismissed in limine in circumstances.
2001 SCMR 25 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S. 417---Appeal against acquittal ---Appreciation of evidence ---Principles ---Acquittal
always carries double presumption of i nnocence in favour of accused ---Principle of
appreciation of evidence in appeal against acquittal is altogether different from that of
appeal against conviction ---Courts are always reluctant to interfere in the judgment of
acquittal, unless the same is sho wn to be perverse, ridiculous and shocking, or trial Court
had failed to consider any material evidence having direct bearing on the case ---Possibility
of another view from the evidence on record is not sufficient to disturb the finding of
acquittal arrive d at by trial Court, provided both the conclusions are equally possible and
probable.
Mehmood Sadiq Khokhar for Appellant.
Date of hearing: 23rd December, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---This Criminal Acquittal Appeal is directed aga inst
judgment dated 24 -11-2008 passed by Additional Sessions Judge -IV, Quetta, whereby
accused/ respondents were acquitted of the charge.
2. Facts, in brief, are that a case vide crime No. 13 of 2006 dated 27 -12-2006, offence under
section 302 read with sections 147, 148, 149 and 34, P.P.C. was registered by the levies
officials of Washuk on the report of one Liaquat Ali.
It was alleged by complainant that on 27 -12-2006 at about 7 -00 p.m. he was going from
Bazaar towards his house situated at Killi Mehn at, in the way Abdul Rahim informed him
that Muhammad Islam was injured by accused persons Abdul Rehman, Munir Ahmed,
Muhammad Anwar, Shakirullah, Sabrullah, Rehmatullah, Muhammad Hanif and Idrees by
means of firing with Kalashnikov. He, along with Abdul R ahim, rushed to the place of
occurrence, where he found Muhammad Islam lying in pool of blood, who was shifted to
Hospital, but he succumbed to the injuries.
3. After investigation, challan was prepared and initially sent to the Court of Sessions Judge,
Kharan, wherefrom it was transferred to the Court of Additional Sessions Judge -IV, Quetta
by the order of this Court. After framing charge and examining the prosecution witnesses, the
trial Court acquitted the respondents, hence this appeal.
4. We have h eard Mr. Mehmood Sadiq Khokhar, learned counsel for appellant and have gone
through record annexed with appeal as well as impugned judgment.
5. Bare perusal of the record is indicative of the fact that complainant Liaquat Ali (P.W.1) is
not an eye witnes s of the incident and, admittedly, he was informed by P. W.6 Abdul Rahim
about the incident, who in his Court -statement has not given any specific role of firing by the
accused/respondents and has deposed that absconding accused Muhammad Anwar, who was
having Kalashnikov in his hand, made firing upon the deceased.
Similarly, P.W.2 Jaffar and P.W.8 Niamatullah, who alleged to have witnessed the incident,
have deposed nothing material against accused/ respondents and have stated that due to firing
of abscon ding accused Muhammad Anwar by means of Kalashnikov, Muhammad Islam
sustained injuries and later on expired.
6. The Medical Officer appeared as P.W.3 and said that he had examined the deceased
Muhammad Islam and has issued death certificate Exh.P/3 -A. Wh ereas, P.W.4 Hobiyar is
witness to the recovery of one LMG Rifle as well as motorcycles, alleged to have been
recovered from the houses of co -accused Abdul Rehman, accused/respondent Sabrullah and
co-accused Abbas, which piece of evidence is not useful for the prosecution against the
accused/respondents, because the prosecution story is silent regarding use of said recovered
LMG rifle or motorcycle in the commission of crime.
P.W.5 Abdul Rashid has only deposed that on 27 -12-2006 at Washuk Bazaar, decease d had
sustained bullet injury and in his presence, Investigating Officer examined the injured,
collected one empty shell of Kalashnikov from the place of occurrence and in hospital, the
dead body of deceased was handed over to complainant. P.W.7 Mushtaq Ah med, Naib
Tehsildar, is investigating officer and has deposed to the extent of investigation carried out by
him.
7. From overall assessment of the prosecution evidence, no incriminating material has come
on record, which could connect accused/respondents with the commission of crime, because
none of the eye -witnesses have assigned any specific role of firing by the respondents upon
the deceased and the entire prosecution evidence is surrounding against absconding accused.
If presence of respondents is bel ieved, even then mere presence of accused/respondents at the
spot does not constitute any offence, particularly when no recovery of crime weapon was
effected from the possession of accused/ respondents, nor the version of complainant has
been supported by any other sort of independent evidence.
8. The prosecution has failed to collect any material during course of investigation against
accused/respondents, showing their common object in the commission of crime, nor has
proved any of the respondents to be members of an unlawful assembly.
9. Furthermore, record shows that the complainant has not approached - the Court with clean
hands, as he as well as other eyewitnesses mustered the courage of implicating nine persons
for a single casualty, therefore, in s uch circumstances, false implication of the
accused/respondents cannot be ruled out. In this regard, we may place reliance on the
judgment -reported in 2001 SCMR 25(b), relevant portion thereof is reproduced herein below:
"In the face of medico -legal opin ion evidence of witnesses is hardly capable of
reconciliation and casts serious doubts as to the truth of the version of the
eyewitnesses who had implicated as many as five persons in the occurrence of whom
three were acquitted by the trial Court for want of any evidence against them. Learned
counsel for the respondent attempt to argue that in the event of any discrepancy ocular
version ought to be preferred but we cannot lose sight of the fact that the prosecution
did not approach the Court with clean hand s as the complainant as well as the
witnesses mustered the courage of implicating as many as five persons for a single
casualty. This aspect of the case strongly militates against the bona fides of the
prosecution version. It is ironical to notice that wit h the deteriorating of values and
standards in society, there has been a growing tendency to rope as many as members
of the family of an accused as possible. This practice often leads to the acquittal of the
real culprit as well in view of exaggeration and concoction of the prosecution case,
which must be deprecated."
10. Above all, acquittal always carries double presumptions of innocence in favour of
accused and the principle of appreciation of evidence in appeal against acquittal is altogether
differen t from that of conviction and the courts are always reluctant to interfere in the
judgment of acquittal, unless and until it is shown that the same is perverse, ridiculous and
shocking or the trial Court had not taken into consideration any material eviden ce having
direct bearing on the case. Merely, because after re -appraising of evidence another view is
also possible from the evidence on record is not sufficient to disturb the findings of acquittal
arrived at by the trial Court, provided both the conclusi ons are equally possible and probable.
In present case, counsel for appellant has failed to point out any illegality, irregularity,
misreading or non -reading of evidence in the impugned judgment, warranting us to interfere.
11. Thus, after having gone th rough the evidence and above settled principle of law, we are
not inclined to interfere in the impugned acquittal order, as such appeal, being devoid of any
merit, is dismissed in limine.
There are the reasons of our short order dated 23 -12-2009 announce d in the open Court.
N.H.Q/10/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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