PLJ 2015 Cr.C. (Lahore) 568 (DB)
versus
Crl. Appeal No. 2198 of 2002, decided on 12.5.2015.
----S. 417--Pakistan Penal Code, (XLV of 1860), Ss. 302, 109, 364, 148 & 149--Appeal against acquittal--Delay of one day in FIR--Shadow of doubt on authenticity of prosecution story--No specific injury was attributed--No role of causing injuries to deceased validity--There was no incriminating evidence with prosecution--Evidence produced by prosecution is stuffed with many discrepancies, lacking confidence inspiring substance evidence--Even otherwise a slightest doubt would favour accused--Admittedly ordinary scope of appeal against acquittal of accused is considerably narrow and limited on examination of judgment of acquittal as a whole, credence should be accorded to findings of trial Court whereby accused has been exonerated from charge of commission of crime--Held: It is well settled law that once if a judgment of acquittal is recorded, accused earns double presumption of innocence, therefore, such judgment cannot be interfered with until strong and exceptional circumstances exist warranting interference by High Court but instant appeal was lacking of any such ground--Appeal was dismissed. [P. 573] A & B
----Scope of appeal--Neither perverse nor arbitrary or artificial and judgment does not call for interference--Validity--It is settled principle of law that every person, initially, is presumed to be innocent unless proved guilty and when he is found otherwise and is acquitted of charge, then there is a double presumption of innocence infavour of accused. [P. 575] C
Nemo for Appellant.
Ch. Noor Smand Khan, Advocate for Respondent Nos. 1 to 5.
Malik Muhammad Jaffar, D.P.G. for State.
Date of hearing: 12.5.2015.
Judgment
James Joseph, J.--The instant appeal is directed against the judgment dated 26.11.2002 passed by learned Additional Sessions Judge Chunian District Kasurwhereby Respondents No. 1 to 6 namely Ameer Din, Imran alias Ghukki, Muhammad Amin, Muhammad Jamil, Akhtar and Muhammad Yasin were acquitted in case FIR No. 423/98 dated 06.11.1998, under Section 302/109/364/148/149, PPC Police Station Kanganpur Tehsil Chunian District Kasur.
2. Briefly stated the facts as narrated in the FIR lodged by the complainant Muhammad Ashiq Taily who reported that on 05.11.1998 at about 4.00 p.m. he was present outside his house when he heard a fire shot while his brother Rafique came running towards him and told him that Yasin Bodla's sons Saleem etc. with their companions wanted to fight with him. The complainant made his brother and the said Saleem etc. compromised but when the complainant reached near the mosque, his brother also reached there where all of sudden accused Muhammad Saleem Bodla armed with rifle .8 MM, Muhammad Amin armed with rifle .7 MM, Amjad Bodlaarmed with gun .12 bore along with Muhammad Amin Sagla armed with .12 bore gun, Muhammad Amin alias Meeroo Arain armed with rifle .244 bore, Ghukki (Imran) armed with rifle .12 bore along with two un-known persons emerged there. Muhammad Saleem and Ameer shouted to kill Rafique Taily, brother of the complainant whereupon Amin Sagla fired two shots from his gun .12 bore but Rafique hid himself inside the mosque. Muhammad Saleem made a fire shot with his rifle aiming atRafique but it hit at Amin Bodla (his own brother). Thereafter the accused Muhammad Saleem etc. caught hold brother of the complainant Rafique and lifted him towardsGhara. The complainant raise hue and cry when witnesses Muhammad Din, Gulzar and many other people came there. They chased the accused persons. MuhammadSaleem etc. who took Rafique to Ghara inside the area of Shahkot and gave him beating with the butts of their weapons. Muhammad Saleem made a fire with his rifle .8 MM hitting the right knee of Rafique. Amjad made fire from his gun .12 bore hitting the left knee of Rafique. Remaining accused also made firing in the legs and body ofRafique who fell down where after Saleem etc. fled away. The occurrence was committed by Muhammad Saleem etc. at the instance of Muhammad Yasin Bodla.Rafique was shifted to the hospital Kanganpur where he was provided medical treatment thereafter he was referred to Mayo Hospital Lahore where he succumbed to the injuries. Motive behind the occurrence was two month's old quarrel between the accused Yasin Bodla etc. and the deceased Rafique etc. as Yasin Bodla had lodged a case against Rafique etc.
3. After registration of the case, the police conducted the investigation and submitted report under Section 173, Cr.P.C. while placing names of respondents No. 1 to 6 in Column No. 3 of the report. Accused Amin Bodla was declared innocent during the course of investigation.
4. trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge against accused persons under Section 302/364/148/149, PPC to which they pleaded not guilty and claimed trial.
5. The prosecution in order to prove the guilt of the accused persons examined 12 PWs. Gist of prosecution evidence is as under:--
PW-1 Muhammad Ali identified the dead body of the deceased and also witnessed the recovery of last worn clothes of the deceased Exh PA.
PW-2 Muhammad Ashiq being complainant proved the ocular account.
PW-3 Muhammad Din being Moharrir kept the case property of this case in safe custody and then dispatched the same to the relevant offices for reports.
PW-4 Manzoor Ahmad constable obtained sealed parcels from Moharrir and then deposited the said parcels intact to the concerned office.
PW-5 Gulzar son of Muhammad Din being eye-witness of the occurrence corroborated the statement of complainant.
PW-6 Dr. Shaukat Ali A.P.M.O. conducted the post-mortem examination on the dead body of Rafique deceased and found following injuries:--
1. A lacerated wound 3 cm x 3 cm inverted margins, burning scorching were present on lateral side of right leg below the right knee. Bone underneath was fractured.
2. A lacerated wound 13 cm x 10 cm with everted margins on inner side of right leg upper part with the evidence of X-ray No. 146/98. There are two metallic pieces and metallic dust in the wound.
3. A lacerated wound 1 cm x 1 cm with inverted margin medial side of left leg just above the mid bone deep.
4. A lacerated wound 1 cm x 1 cm with inverted margin 8 cm below the Injury No. 3.
5. A lacerated wound 1 cm x 1 cm inverted margin 6 cm below Injury No. 4 in front of left side.
6. A lacerated wound 1 cm x 2 cm medial aspect of left leg lower part.
7. A abrasion 1 x 2 cm on left elbow.
8. Abrasion 2x3 cm on lateral side of left arm at mid.
9. Abrasion 4x1 cm on lateral side of left shoulder.
10. A lacerated wound 3 x 1 cm in front of head at hairy margin.
11. A lacerated wound 1 cm x 1/2 cm skin deep at mid of hairy margin 1 cm apart from Injury No. 10.
12. A lacerated wound 3 cm x 1 cm bone deep back of head.
13. A abrasion 3 cm x 3 cm on lateral side of right chest.
14. A contusion 5 cm x 5 cm on right side of head.
15. A contusion 6 cm x 6 cm on left side of head.
16. A abrasion 2 cm x 2 cm on right hand at mid on the dorsal side.
17. Swelling 10 x 7 cm on the back of left fore-arm at mid.
According to his opinion the deceased died due to shock and hemorrhage due to Injuries No. 1 & 2 which were caused by fire-arms. All Injuries are anti-mortem. Injuries No. 1 & 2 were sufficient to cause death in ordinary course of nature. Time between injuries and death was 6 to 7 hours and between death and post-mortem was 34 ½ hours.
PW-7 Dr. Liaqat Ali Medical Officer medically examined Muhammad Rafique and issued MLC.
PW-8 Inayat Ali 757/C witnessed the recovery of rifle .8 MM from Akhtar accused.
PW-9 Karam Din is the alleged witness of abetment.
PW-10 Badar Munir S.I. being IO of the case deposed regarding the steps taken by him during the investigation of this case.
PW-11 Muhammad Rafique Inspector CIA Staff is also the I.O. of this case who deposed regarding the steps taken by him during the investigation of this case.
PW-12 Mushtaq Ahmad Patwari Halqa prepared scaled site-plans Exh PN & Exh PN/1 of the place of occurrence.
PWs Muhammad Din alias Manda, Muhammad Latif, Muhammad Sadiq, Muhammad Hanif, Muhammad Latif, Mushtaq Ahmad and Muhammad Anwar were given up being un-necessary while Muhammad Sultan being won over end Muhammad Siddique S.I. being dead.
6. Statements of the accused under Section 342, Cr.P.C. were recorded. They denied the allegations so leveled against them in prosecution evidence. The accused persons did not opt to appear as their own witness as required under Section 340(2), Cr.P.C. however, they produced Ibrahim son of Daud as DW-1 in their defenceevidence.
7. After the conclusion of the trial the learned trial Court acquitted the Respondents No. 1 to 6 in this case while extending benefit of doubt in his favour, hence this appeal.
8. Arguments heard. Record perused.
9. The First Information Report in the instant case was lodged with the delay of one day and not a single word has been given by the complainant for reporting the matter to the police with such a long delay. Such delay has casted some shadow of doubt on the authenticity of the prosecution story and thus the deliberation and consultation on the part of the complainant and involving huge number of accused suggests that the FIR was lodged after due deliberation and consultation.
10. A bare perusal of complaint Exh. PB got recorded by the complainant reveals that no specific injury is attributed to any of the Respondents No. 1 to 6 neither any role of causing injuries to deceased is attributed rather the same were attributed to Amjad Maqsood and Muhammad Saleem who had lodged a Hudood case against the complainant party for the abduction of their sister. Further it has been observed that according to the prosecution's own story firing was made by respondent which hit the walls of the mosque but no empties were recovered from the spot to substantiate the charge framed against the respondents. Further it has been observed that out of Respondents No. 1 to 6, Muhammad Akhtar and Muhammad Jameel were not nominated in the FIR. They were introduced by the complainant at belated stage through a supplementary statement. No reason was mentioned by the complainant for mentioning the name of respondents No. 4 & 5 at a belated stage. It has further been noticed that while appearing before the Court the complainant PW-2 Muhammad Ashiq and Muhammad Gulzar PW-5 admitted during cross-examination that there was no enmity between the complainant party and the respondents and it was admitted that co-accused Amjad Maqsood and Muhammad Saleem had grudge against them as their sister was abducted, therefore, no plausible reason has been brought on file to prove the motive part.
11. In view of the above we are of the considered view that there was no incriminating evidence with the prosecution. The evidence produced by the prosecution is stuffed with many discrepancies, lacking confidence inspiring substance evidence. Even otherwise a slightest doubt would favour the accused. Admittedly the ordinary scope of appeal against the acquittal of the accused is considerably narrow and limited on the examination of the judgment of acquittal as a whole, credence should be accorded to the findings of the trial Court whereby the accused has been exonerated from the charge of commission of crime. It is well settled law that once if a judgment of acquittal is recorded, the accused earns double presumption of innocence, therefore, such judgment cannot be interfered with until strong and exceptional circumstances exist warranting interference by this Court but the instant appeal is lacking of any such ground. In this regard reference may be made to the case of “Iftikhar Hussain and others vs. The State” (2004 SCMR 1185), wherein the Hon'ble Apex Court was pleased to observe as under:
“It is a well settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under Section 417, Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another versus Mumtaz Khan and others (PLD 1985 SC 11) that the Appellate Court seized with the acquittal appeal under Section 417 CrP.C. is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence illegally.”
12. Reliance is further placed on the case titled as “Arif Hussain and another v. The State” (1983 SCMR 428) where the August Supreme Court of Pakistan had laid down the following principle:
“S. 302--Murder--Evidence--Benefit of doubt--Prosecution case not free from doubt--Charges not brought home to accused in manner required under law--Accused given benefit of doubt and acquitted.”
13. Reliance is also placed on the case of “Jehangir v. Aminullah and others” (2010 SCMR 491), wherein at page 404 the Hon'ble Supreme Court has been pleased to hold as under:
“It is well-settled by now that “there are certain limitations on the power of Appellate Court to convert acquittal into a conviction. It is well-settled that ''Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivable reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and or no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous”. The view taken by this Court in Ghulam Sikandar v. Mumraz Khan PLD 1985 SC 11 is well-known that “in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions on initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally''. This principle was also followed in MuhammadIqbal v. Sanaullah PLD 1997 SC 569, State v. Farman Hussain PLD 1995 SC 1, Ghulam
4. This is petition for post-arrest bail and only tentative assessment is to be made and deeper appreciation or evaluation of evidence at bail stage is neither desirable nor permissible. It divulges from record that admittedly the entire amount was paid to Muhammad Saleem co-accused, who has already been allowed bail by learned trial Court. Though the petitioner has been grilled during physical remand but no incriminating evidence could be extracted from him. The entire evidence, so far collected by the police is based upon
documentary evidence, which is already in the possession of the prosecution and there is no likelihood of tempering with the same by the accused/petitioner. Reliance is placed on the case titled “Saeed Ahmad vs. The State” (1996 SCMR 1132). The involvement of the petitioner in the instant case would be determined by the trial Court after recording evidence. In view of the above, the case of the petitioner calls for further inquiry falling under sub-section (2) of Section 497, Cr.P.C. The petitioner is behind the bars and is no more required for further investigation. Keeping the petitioner behind the bars for an indefinite period would not serve any useful purpose for the prosecution.