2019 MLD 551
(a) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused along with his co-accused persons armed with deadly weapons assaulted on complainant party---Accused made straight firing upon the brother of the complainant, due to which he died---Occurrence took place over a dispute of plot and some money transaction---Version of the complainant in his fard bayan was that on the day of occurrence accused/respondent along with his acquitted co-accused came at the place of occurrence and after raising lalkara, one of the acquitted co-accused fired with rifle .7-MM at the deceased, which hit on upper part of his left thigh and accused made two firearm shots upon deceased hitting at his back---Complainant had stated during trial that co-accused made fire which hit deceased, accused made two fires, which hit deceased on left side of hip---Said deposition was contradictory to his previous statement got recorded by him and during confrontation, it had been observed that complainant had dishonestly suppressed seat of injury allegedly caused by acquitted accused and also introduced dishonest improvement about locale of injuries allegedly caused by accused just to bring ocular version in line with medical evidence---Prosecution had alleged that three fire shots hit the deceased, one by acquitted accused and two by accused, but Medical Officer had observed two injuries at the hip of the deceased---Blackening was found on two injuries but according to site-plan, distance from where accused allegedly fired at deceased was thirteen feet---Admittedly, in case of blackening, maximum range of firing was six feet, thus medical had contradicted ocular account---Record transpired that besides the complainant, the occurrence was witnessed by three other persons but they were not produced in court to prove the charge against accused by mentioning them as being won-over---Non-production of said witnesses, in circumstances, would go against the prosecution---Complainant, during cross-examination, denied his relationship with said witnesses but he had admitted relationship with them in his previous statement---Complainant had denied his relationship with a witness, whereas said witness had clearly stated during his statement that he was son of sister-in-law of complainant---Circumstances suggested that complainant had suppressed his relationship with prosecution witnesses---Complainant had also suppressed the factum of receipt of injury by acquitted accused which would go against the prosecution---Said facts and circumstances led to the conclusion that occurrence did not take place as alleged by the complainant---Evidently, three co-accused had been acquitted in the present case and now strong corroboration was required to prove charge against present accused/ respondent but prosecution failed to do so---Prosecution itself brought on record documentary evidence before the court to prove that accused/ respondent was not involved in the alleged occurrence rather he was in foreign country on the day of occurrence of the case---No recovery of any incriminating material was made during investigation---Circumstances established that prosecution had failed to prove the charge against accused/respondent beyond shadow of doubt---Prosecution case was fraught with doubts---Appeal against acquittal was dismissed, in circumstances.
Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Muhammad Ali v. The State 2015 SCMR 137; The State v. Iqbal and 3 others 1986 PCr.LJ 215; Mst. Zahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427; Muhammad Rahim and others v. Bakht Muhammad and others 2006 SCMR 1217; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Irfan Ali v. The State 2015 SCMR 840 rel.
(b) Criminal trial---
----Abscondance---Scope---Mere abscondance is no proof of guilt---When direct evidence is not trustworthy and reliable then abscondance is of no avail and can not cure or repair defects of the case of prosecution---Abscondance is merely a suspicion and cannot prove charge as a substantive piece of evidence.
Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Appreciation of evidence---Principles---Acquitted accused had acquired double presumption of innocence, with which the court did not interfere unless the impugned order was found to be arbitrary, capricious, fanciful and against the record.
Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.
(d) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Interference---Scope---Interference was to be made when it appeared that acquittal was result of misreading or non-reading of evidence.
Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635 rel.
(e) Criminal trial---
----Benefit of doubt---Principle---Single circumstance creating a reasonable doubt in prudent mind about the guilt of accused would be sufficient to extend its benefit to the accused.
Muhammad Zaman v. The State and others 2014 SCMR 749 andand Muhammad Ashraf and others v. The State and another PLD 2015 Lah. 1 rel.
Waqar-ul-Mohsin Lak for Appellant.
ORDER
This appeal under Section 417(2-A), Cr.P.C. has been filed by appellant against the order of acquittal of respondent No.1 passed by the learned Sessions Judge, Mandi Bahauddin, vide judgment dated 17.10.2011 in case arising out of FIR No.527/2004 dated 20.8.2004 registered under Sections 302, 34, P.P.C. at Police Station Sadder Mandi Bahauddin.
2.Brief facts of the prosecution case as got recorded by complainant Muhammad Azam (present appellant) in his statement/Fard Bayan Exh.PG are that he was resident of Chelianwala and on 20.8.2004 he along with his brothers namely Mazhar Iqbal and Akhtar Iqbal were present in street for doing some work in a plot situated in front of his house when at about 9.00 AM, all of a sudden, accused namely Shahzad (present respondent No.1) along with his companions namely Naveed, Shabbir and Musthaq (since acquitted) armed with firearms weapons, came there and Shahzad raised lalkara that today Mazhar Iqbal should not go alive whereupon accused Naveed(since acquitted) made firearm shot hitting at left thigh of Mazhar Iqbal who ran to take shelter of the wall, then from behind Shahzad accused (present respondent No.1) made two firearm shots with his rifle .223 bore which hit Mazhar Iqbal at his back, as a result of which after few steps, he fell down. Thereafter all the accused while making firing decamped from the place of occurrence. The occurrence was witnessed by Javed Akhtar son of Fazal Dad and Khalid Mehmood. Mazhar Iqbal was taken to RHC Chelianwala where he succumbed to the injuries. This occurrence took place over a dispute of plot and some money transaction.
3.On completion of investigation, incomplete challan report under section 173, Cr.P.C. was prepared and submitted in Court by placing the names of Naveed and Mushtaq Ahmad in column No.2 and that of Shabbir Ahmad accused in column No.3, however, name of Shahzad Akhtar (respondent No.1) was placed in column No.2 with red ink as his arrest was yet pending. Learned trial Court after receipt of said challan report, on the request of Muhammad Azam complainant (present appellant) summoned Shahzad Akhtar (respondent No.1) also but due to non-service of process, his proclamation under Section 87, Cr.P.C. was ordered to be issued, thereafter no further proceedings were done in this regard and even statement of Process Server was not recorded.
4.It would not be out of place to mention here that since respondent No.1 was no arrested so his trial was kept pending whereas his co-accused namely Naveed Akhtar, Shabbir Ahmad and Mushtaq Ahmad were tried by the trial Court and on completion of trial, they were acquitted vide judgment dated 30.9.2005 by extending them the benefit of doubt.
5.Shahzad Akhtar after getting protective bail joined investigation on 7.2.2011 and found not involved in the crime and his name was placed in column No.2 in the report prepared and submitted under Section 173, Cr.P.C. in the Court. Trial commenced and charge was framed on 3.5.2011, to which, he pleaded not guilty and claimed trial whereafter evidence of prosecution was summoned. After completion of prosecution evidence, respondent No.1 got recorded his statement under Section 342, Cr.P.C. but he did not opt to record his statement under Section 340(2), Cr.P.C. on oath, however, he produced documentary evidence in his defence. Thereafter, the learned trial Court after hearing both the sides and scrutinizing the evidence produced from both sides, acquitted respondent No.1 from the charge by extending him benefit of doubt vide judgment dated 17.10.2011. Hence, this appeal.
6.Having heard the learned counsel for the appellant and gone through the record available on file, we find that nothing has been brought on record which could persuade us to hold that the conclusion arrived at by the learned trial court is against law and evidence produced during the trial. Further the judgment of learned trial court while acquitting respondent No.1 cannot be termed as perverse inasmuch as the reasons recorded therein for acquitting him are also not fanciful, capricious, speculative and artificial, in absence of which, the order of acquittal cannot be interfered with. The learned trial court has dealt with all the contentions of the learned counsel for the appellant, as agitated before us, in the judgment impugned. From the perusal of the impugned judgment, it reveals that according to the version of complainant (present appellant) in his Fard Bayan (Ex.PG), on the day of occurrence, respondent No.1 along with his other acquitted co-accused came at the place of occurrence and after raising lalkara, one of the acquitted co-accused namely Naveed fired with rifle .7mm at Mazhar Iqbal deceased, which hit on upper part of his left thigh (Kulah) whereas Shahzad Akhtar (respondent No.1) made two firearm shots upon deceased Mazhar Iqbal hitting at his back but during trial complainant while appearing as PW-7 stated that "Naveed made fire which hit Mazhar, Shahzad accused made two fires, which hit Mazhar on left side of hip", as such, his said deposition is contradictory to his previous statements got recorded by him in Ex.PG and Ex.DB and during confrontation, it has been observed that complainant has dishonestly suppressed seat of injury allegedly caused by Naveed (since acquitted) and also introduced dishonest improvement qua locale of injuries allegedly caused by Shahzad Akhtar (respondent No.1) just to bring ocular version in line with medical evidence. Moreover, it is the case of the prosecution that three fire shots hit to the deceased, one by accused Naveed and two by accused Shahzad but PW-6 Dr. Shafique Ahmad observed two injuries at the hip of deceased during his autopsy. Blackening has been found on injuries Nos.1-A and 2 but according to site plan Ex.PM, distance from where Shahzad Akhtar allegedly fired at deceased is 13 feet. It is settled principle of Medical Jurisprudence that in case of blackening maximum range of firing is six feet. Thus medical has contradicted ocular account. Reliance is respectfully placed upon the cases of "Mst. Jallan v. Muhammad Riaz and others" (PLD 2003 SC 644) and "Muhammad Ali v. The State" (2015 SCMR 137). Moreover, the learned trial Court has observed major contradictions relating to taking the deceased to RHC Chelianwala, which also create serious doubt regarding the truthfulness of the prosecution story. Another aspect of the matter is that besides the appellant, the occurrence was witnessed by Akhtar Iqbal, Javed Akhtar and Khalid Mehmood but they were not produced in Court to prove the charge against respondent No.1 by mentioning them as being won-over, and in that scenario, non-production of these witnesses goes against the prosecution. Complainant during cross-examination denied his relationship with above mentioned eye-witnesses, he was confronted with his previous statement (Ex.DB) recorded on oath during previous trial, it was found that in said statement he has admitted that Khalid Mehmood and Javed Akhtar PWs were his "Khalazad". So he has denied admitted relationship. Similarly he has denied his relationship with Amir Mehmood PW-5 whereas Amir Mehmood PW-5 has clearly stated during his statement before the Court that he is son of sister in law (Saali) of complainant. So, the complainant suppressed relationship with PWs. Reliance is placed upon the case of "The State v. Iqbal and 3 others" (1986 PCr.LJ 215). It has also been found that complainant also suppressed the factum of receipt of injury by Shabbir accused (since acquitted) which goes against the prosecution and in this regard reliance is placed upon the cases of "Mst. Zahida Saleem v. Muhammad Naseem and others" (PLD 2006 SC 427) and "Muhammad Rahim and others v. Bakht Muhammad and others" (2006 SCMR 1217). These all facts lead to the conclusion that occurrence did not take place as alleged by complainant.
Three co-accused have been acquitted in the case and now strong corroboration required to prove charge against Shahzad Akhtar (respondent No.1) but prosecution remained failed to do so and in this regard, reliance is respectfully placed upon the cases of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142), and "Irfan Ali v. The State"(2015 SCMR 840).
Another vital aspect of the case is that prosecution itself brought on record documentary evidence before the Court to prove that Shahzad Akhtar (respondent No.1) is not involved in the alleged occurrence rather he was abroad i.e. in foreign country on the day of occurrence of this case. Prosecution itself collected Passport Exs.P4, P5 and P6 of Shahzad Akhtar during investigation and verified his travelling record through letter Ex.PJ from Immigration Authorities and produced verification documents qua his travel history as Ex.PK and PK/1. Furthermore Ex.DJ and DJ/1 along with its translation Ex.DJ duly verified by Sudan Embassy and Embassy of Pakistan Khartoum Sudan about his presence abroad on the fateful day of occurrence were also brought on record, which even were not challenged by the prosecution. No recovery of any incriminating material was made during investigation. Mere abscondance is no proof of guilt, when direct evidence is not trustworthy and reliable, then abscondance is of no avail and cannot cure or repair defects of the case of prosecution. Abscondance is mere a suspicion and cannot prove charge as a substantive piece of evidence and in this regard reliance is placed upon the case of "Rasool Muhammad v. Asal Muhammad and another" (1995 SCMR 1373). Thus, learned trial Court while acquitting respondent No.1 has rightly observed in Para No.29 of its judgment, as under:--
"The upshot of the above discussion is that the prosecution remained failed to prove its case beyond all shadow of doubts against accused Shahzad Akhtar son of Ghulam Sarwar and I found that the prosecution case is not free from all doubts. In view of above, I have pondered over the plea of alibi of the accused. I found that the accused and the prosecution itself through documentary evidence produced plausible and reasonable evidence to substantiate the absence of the accused from Pakistan on the fateful day. Therefore, keeping in view such documentary evidence, which almost remained unchallenged, the first version of the accused i.e. plea of alibi is believed. So, the benefit of doubt is given to the accused Shahzad Akhtar"
7.The learned trial Judge has advanced valid and cogent reasons for arriving at the finding of acquittal in favour of respondent No.1 and we see no legal justification to disturb the same. Even otherwise, when an accused person is acquitted from the charge by a court of competent jurisdiction, then double presumption of innocence is attached to such order, with which courts do not interfere unless the impugned order is found to be arbitrary, capricious, fanciful and against the record, which are not found available in the present case and in this regard reliance is placed upon the case of "Haji Paio Khan v. Sher Biaz and others" (2009 SCMR 803). Further in appeal against acquittal, interference is made only when it appears that acquittal is result of misreading or non-reading of evidence which too is missing in this case. The ordinary scope of appeal against acquittal is considerably narrow and limited as held in the cases of "Muhammad Usman and 2 others v. The State" (1992 SCMR 498) and "The State v. Muhammad Sharif and others" (1995 SCMR 635). We have observed that prosecution has failed to prove the charge against respondent No.1 beyond the shadow of doubt. The case of the prosecution is fraught with doubts. Further respondent No.1 was not bound to establish number of circumstances creating a reasonable doubt in the prudent mind even a single circumstance is sufficient to extend the benefit of doubt to him. In this regard, reliance can be placed upon the cases of "Muhammad Zaman v. The State and others" (2014 SCMR 749) and "Muhammad Ashraf and others v. The State and another" (PLD 2015 Lahore 1).
8.In view of the foregoing discussion, we have not observed any legitimate exception to interfere in the well-reasoned judgment of the learned trial court. Consequently, the appeal in hand, having no merits, is hereby dismissed in limine.
JK/M-179/LAppeal dismissed.
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