PLJ 2022 Cr.C. (Note) 37
Contradictory Statements--
----A witness may make contradictory statements on some of details of incidents in A respect of one he is deposing in Court--These variations may well be due to mere lapse of memory or confusion caused in his mind by a relentless cross-examiner--Moreover, it is not uncommon that a cross examiner puts words in mouth of a witness and presiding officer is not vigilant to check it. [Para 14] A
Incredible Evidence--
----Principle--It is well settled principle of law that minor contradictions are not to be given undue emphasis and evidence is to be considered from point of view of trustworthiness--The test is whether same inspires confidence in mind of Court--If evidence is incredible and cannot be accepted by test of prudence, then it may create a dent in prosecution version--If an omission or discrepancy goes to root of matter and ushers in incongruities, defence can take advantage of such inconsistencies/contradiction--It needs no special emphasis to state that every contradiction cannot take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect core of prosecution case and should not be taken to be a ground to reject prosecution evidence--The omission should create a serious doubt about truthfulness or creditworthiness of a witness to be considered material. [Para 14] B & C
Testimony of relative Witness--
----Rule of law--If testimony of relative is corroborated through circumstantial evidence or other pieces of evidence, then his relationship, friendship or relation with deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve accused. [Para 14] D
Relative witness--
----A witness is relative of deceased is not per se enough to discredit witness unless it is established that witness was inimical towards accused and if it is found, that in circumstances of case, presence of such a witness cannot be denied, then his evidence could not be discredited--Similarly, evidence of any eye-witness cannot be rejected out rightly, merely because such witness belongs to one party or other involved in a factional dispute, if otherwise such a witness has established his veracity. [Para 14] E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 410--Pakistan Penal Code, (XLV of 1860), Ss. 302, 147, 148, 149, 114, 324, 337-F(iii), 337-F(v) & 337-H(2)--Criminal acquittal appeal and revision filed by complainant for enhancement sentence of appellant--Conviction and sentence--Ocular account--Appreciation of evidence--Wounds on person of both deceased and two injured are consistent with weapons used--The witnesses are in comfortable unison on all salient aspects of incident as well as details collateral therewith--The cross-examination remained inconsequential inasmuch as nothing adverse could be solicited from witnesses except for a volley of suggestions, vehemently denied--These various pieces of evidence are inexorably pointing to appellant with no space to entertain any hypothesis of innocence or substitution--The principles for appreciation of evidence in appeals against acquittal are well settled--By Hon'ble Apex Court of Pakistan that unless judgment of trial Court is perverse, completely illegal and on perusal of evidence, no other conclusion could be drawn except that respondent/accused is guilty or there has been made complete misreading of evidence leading to miscarriage of justice, High Court would not exercise jurisdiction u/S. 417, Cr.P.C--It was further held that in exercising this jurisdiction, High Court has to always be slow unless it feels that gross injustice has been done in administration of criminal justice--When complainant party turned it back on, a heated argument took place and unfortunate calamity befell upon parties--There was no premeditation involved, nor a set motive as heated argument at best was a fuel to fire at that exact moment and not some century old dispute that drove convicts/accused to take away innocent lives--There have been many precedents where Hon'ble Apex Court has declined to enhance sentence awarded to convicts for same reason--There is no doubt that when an offence is proved, it has to be met with maximum sentence provided thereof--However, there is no yardstick vis-a-vis restricting or curbing discretion of trial Court while passing sentence--It is circumstances present in each case which justify severity or leniency in passing a legal sentence--Trial Judge in his wisdom declined to award death sentence to appellant due to presence of mitigating circumstances--Appeal dismissed.
[Para 15, 16, 18 & 19] F, G, J & K
2016 SCMR 2035 and 2017 SCMR 1721.
Presumption of Innocence--
----An accused is presumed to be innocent in law and if after regular trial he is acquitted of charge, he earns double presumption of innocence and there is heavy onus on prosecution to rebut said presumption--In view of discrepant and inconsistent evidence led, guilt of accused is not free from doubt, therefore, this Court is of view that prosecution failed to discharge onus and finding of acquittal recorded by learned trial Court is neither arbitrary nor capricious to warrant interference. [Para 17] H
Acquittal of Accused--
----Double presumption--When an accused is acquitted from charge by Court of competent jurisdiction, then it is well established principle of law that double presumption of innocence will remain attached with judgment of acquittal, therefore, such judgment cannot be interfered with unless it is proved that same is arbitrary, shocking, capricious, fanciful and against settled principles of criminal administration of justice [Para 17] I
1993 SCMR 585.
M/s. A. R Farooq Pirzada and Qurban Ali Malano Advocates for Appellants (in Crl. A. No. D-157/2010) for Respondents (in Crl. Acq. A. No. D-106/2010 and Crl. Rev. A No. D-88/2010).
Mr. Syed Ali Aamir Shah, Advocate for Complainant
Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.
Dates of hearing: 26.8.2020, 1.9.2020, 16.9.2020, 30.9.2020 and 1.12.2020.
PLJ 2022 Cr.C. (Note) 37
[Sindh High Court Bench at Sukkur]
Present: Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ.
ZAFAR IQBAL and 3 others--Appellants
versus
STATE--Respondent
Crl. A. No. D-157, Crl. Acq. A. No. D-106 & Crl. Rev. A. No. D-88 of 2010, decided on 23.12.2020.
Judgment
Fahim Ahmed Siddiqui, J.--By this common judgment, we intend to dispose of the above captioned Cr. Appeal, Cr. Acquittal Appeal and Cr. Rev. Application, filed by the complainant for enhancement of the sentences, against the judgment dated 12.11.2010, passed by the learned II-Additional Sessions Judge Khairpur in S.C No. 105 of 2008, for offences punishable u/S. 302, 147, 148, 149, 114, 324, 337-F(iii), 337-F(v), 337-H(2), PPC, in Crime No. 45 of 2008, registered at Police Station Faiz Gunj, whereby the appellants Zafar Iqbal, Matal Khan, Shabir Ahmed and Nazeer Ahmed have been convicted and sentenced as under:
i) Appellants namely Zafar Iqbal and Shabir Ahmed have been convicted and were sentenced to suffer R.I for life imprisonment, and to pay compensation of Rs. 50,000/- each, in case of default to pay compensation, they shall further suffer R.I for six months more.
ii) Appellant Nazeer Ahmed was also convicted for offence punishable u/S. 337-F(iii), PPC and sentenced to suffer R.I for three years and to pay Rs. 20,000/-as
iii) Appellant Matal Khan was also convicted for offence punishable u/S. 337-F(iii) and 337-F(v), PPC and sentenced to suffer R.I for three years and R.I for five years as Tazir respectively and to pay Rs. 20,000/- as Daman. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended to appellants, however accused Bashir Ahmed and Rahib Khan were acquitted of the charge by extending them benefit of doubt.
2. Brief facts of the prosecution case as unfolded in the FIR are that complainant Muhammad Ramzan lodged FIR at P.S Faiz Gunj on 19.03.2008, stating therein that he owned 17 acres of land settled on water course No. R-14 Kot Laloo and also owned 20 acres of land on lease, out of which, some of the land was being cultivated by his Hari Allah Rakhio and on the day of incident he along with his Hari Allah Rakhio, son Khalid Hussain, brother Muhammad Abad and relatives Muhammad Jaffar and Khadim Hussain left for sharing water in the lands at about 06:30 am. When they reached there at about 07:20 am. they noticed accused Kaleem Hussain, armed with K.K, Zafar armed with rifle, Nazeer Ahmed armed with gun, Mattal armed with rifle, Bashir Ahmed and Rahib armed with guns and Shabir Ahmed, who stopped their water from water course and on resistance they issued threats of murder. It is further stated by the complainant that on the instigation of accused Shabir Ahmed, accused Kaleem Hussain fired at Talib Hussain, accused Zafar fired at Allah Rakhio, accused Nazeer Ahmed fired at Muhammad Abad and accused Mattal and Rahib fired at Muhammad Jaffar. On hearing the shots, other persons came there and on seeing them, the accused persons went away towards northern side. Complainant then noticed that Talib Hussain and Allah Rakhio were lying dead, having fire arm injuries on their heads, while Muhammad Abad and Muhammad Jaffar had sustained fire arm injuries, therefore they were brought at P.S where complainant lodged the FIR.
3. It is pertinent to mention that accused Zafar Iqbal also lodged FIR being Crime No. 46 of 2008 for offence u/S. 324, 147, 148, 427, 435/149, PPC at P.S Faiz Gunj regarding sustaining injuries by Zafar Iqbal, Kaleem and Mattal and damage to their jeep.
4. After registration of the FIRs and conducting the investigations in the case, the Investigating Officers submitted challan against the accused. After compliance of Section 265-C Cr.P.C., a formal charge was framed to which appellants pleaded not guilty and pleaded their innocence.
5. In order to substantiate the charge in S.C No. 105/2008, prosecution examined PW Shoukat Ali, PW/Medical Officer Dr. Ghous Bux, PW/complainant Muhammad Ramzan, PW Muhammad Abad, PW/injured Muhammad Jaffar, PW Khadim Hussain, PW Khalid Hussain, PW/Tapedar Muhammad Afzal, PW Azhar Farooq, PW PC Bakhsh Ali, PW SIO Shamsuddin Sabqi and they have produced numerous documents through their evidence and thereafter prosecution side was closed.
6. Statements of accused u/S. 342 Cr.P.C. were recorded in which they denied the allegations leveled against them and claimed that they have been falsely implicated in the case by the complainant due to enmity. None of the accused examined themselves on oath, however, they lead evidence of three D.Ws Bashir Hussain, Atta Hussain and Muhammad Shafiq in their defence.
7. After hearing learned counsel for the respective parties, learned trial Court convicted the appellants namely Zafar Iqbal, Shabir Ahmed, Nazeer Ahmed and Mattal Mari and acquitted the co-accused namely Rahib Khan and Bashir Ahmed by extending benefit of doubt to them.
8. Learned counsel for the appellants have argued that the impugned judgment passed by the trial Court is against the administration of criminal justice, perverse and shocking; that there are material contradictions in the evidence of PWs which have not been considered; that no independent witness has been cited by the prosecution; that PWs are related and interested witnesses; that there is conflict in ocular account and medical evidence; that no person residing near the place of incident was made witness/mashir of the incident; that two accused Nazeer Ahmed and Bashir were armed with guns but according to medical reports, none sustained pellet injuries; that the charge framed by the trial Court is defective; that the 161 Cr.P.C. statements of PWs were recorded after the delay of five days; that accused Shabir Ahmed was not armed and no any injury has been attributed to him; that the FIR was lodged at 10.20 am and the memo of injuries was prepared at 0815 hours at PP Kot Laloo; that co-accused have been acquitted by the learned trial Court on the basis of same set of evidence; that the case of prosecution is full of material contradictions, discrepancy, infirmities, therefore, they prayed that the impugned judgment may be set aside and appellants/accused may be acquitted. They referred case law reported as PLD 2019 SC 527; 2011 SCMR 45, 2003 MLD 1196, 1988 SCMR 494, PLD 1976 SC 241, PLJ 1976 SC 205, 1995 P.Cr.LJ 459, PLJ 1980 Cr.C.(Lah)453, 1976 SCMR 243, 1971 SCMR 214, PLJ 1990 Cr.c. (Kar) 418, 1971 SCMR 432, PLJ 1990 Cr.C.(Kar) 435, PLJ 1976 SC 283, PLD 1969 SC 127, 1992 SCMR 1134, 1992 SCMR 196, PLJ 1981 Cr.C(Pesh)74, PLD 1964 (Pesh) 59, 1997 SCMR 25, 2004 P.Cr.LJ 92, PLJ 2001 Cr.C. (Pesh) 402, 1971 SCMR 357, 1985 SCMR 95, NLR 1988 Cr. 650, 1998 SCMR 32, 2008 SCMR 1221, 1993 SCMR 417, 2005 P.Cr.R.L.J 578, 1995 SCMR 1345, 2004 P.Cr.LJ 68, NLR 1991 Cr. 415, PLJ 1996 Cr.C. (Kar) 2076, 2010 SCMR 375, 1994 SCMR 06, PLD 1988 (Kar) 521, 1997 SCMR 32, PLD 1968 (Lah) 1344, 1977 P.Cr. LJ 30, NLR 1982 Cr. 467, PLJ 1982 Cr.C (Lah)295, 1993 SCMR 550, 1996 SCMR 1553, 2003 YLR 1607, PLD 2019 SC 527, 1995 SCMR 127, 2020 SCMR 321, 2018 SCMR 71, 2018 SCMR 344, 2016 SCMR 267, 2019 MLD 1291, 1980 SCMR 225, 2000 SD 679, PLJ 2001 SC 683, PLD 2007 Kar 521, 2010 SCMR 1009 and PLD 2005 Kar 18.
9. Conversely, learned DPG for the state has supported the impugned judgments. He further submitted that the delay in lodgment of the FIR has properly been explained by the complainant; that two innocent persons have lost their lives in this incident, whereas two persons sustained firearm injuries at the hands of appellants; that appellant Zafar Iqbal is directly charged with murder of deceased Allah Rakhio and was arrested on the same day of incident and I.O recovered a rifle at his pointation; that as per memo of recovery the rifle recovered from accused Zafar Iqbal was not broken at the time of recovery; that accused Zafar Iqbal and Mattal Khan have also been convicted in separate cases registered u/S. 13(E) Arms Ordinance by the trial Court; that during course of the investigation, I.O recovered four empties of rifle, six empties of 12 bore and five empties of K.K from the place of incident; that the medical evidence fully supports the ocular version corroborated by the recovery of crime weapons; that the evidence of defence witnesses is full of contradictions and same cannot be given weight for disbelieving the version of prosecution witnesses. Learned DPG further argued that it is held by the Hon'ble apex Court that after acquittal accused enjoys double presumption of innocence. He has placed his reliance on case law reported in 2020 SCMR 1841, 2020 SCMR 287, 2020 SCMR 586, 2014 P.Cr.L J 885 and 2020 SCMR 1250. Learned counsel for the complainant also supported the impugned judgment and submits that there was no enmity between the parties so that on account of which accused can be falsely implicated; that the accused persons were attributed specific roles which were also supported by the medical evidence; that the presence of injured and deceased persons has been admitted by the defence; that the FIR lodged by accused persons against the complainant party cannot be deemed to be the counter version because no documents of that case has been brought on record; that none from accused side received a single scratch on their body; that on the application of complainant, an inquiry was conducted during which it transpired that the accused Shabir Ahmed was not admitted in hospital on the day of incident. He lastly prayed that the conviction and sentence awarded to the appellants may be enhanced and convert the same into death penalty. In support of his contentions, he has relied upon case law referred as NLR 2002 SCJ 179, 2002 SCMR 1568, 2001 SCMR 84, NLR 2006 SCJ 813, 2004 SCMR 1676, NLR 2006 SCJ 786, 2010 SCMR 1025, NLR 2000 AC 250,1976 SCMR 532, PLD 1959 W.P 383, PLD 1983 SC 286, PLD 2001 SC 107, 1986 P.Cr. L.J 1297, 1987 SCMR 1353, PLD 1963 SC 152, NLR 2004 CRJ 316, PLD 1971 SC 730, PLD 1959 Karachi 383, PLD 1983 SC 286, NLR 2002 SC 6, 2001 SCMR 614, 2000 SCMR 1784, 1994 SCMR 01, PLD 1969 SC 269 and 1970 SCMR 734.
10. We have heard learned counsel for appellants, learned DPG for state and learned counsel for complainant. Perused the record carefully with their able assistance.
11. It is a matter of record that on the incidental day, the complainant was present at the place of incident along with Talib Hussain, Allah Rakhio Bugti, Khalid Hussain, Muhammad Abad, Muhammad Jaffer and Khadim Hussain, who were at the land owned by complainant situated at water course No. R-14 and on the incidental day, the water rotation was their from 6:30 p.m. in the morning for the coming 24 hours. However, they were then approached on the same land by accused, who were all duly armed with weapons, after abusing the complainant party, on instigation of convict/appellant Shabbir Ahmed, the accused fired at Talib Hussain, Allah Rakhio, Muhammad Abad and Muhammad Jafar, consequently Talib Hussain and Allah Rakhio expired on the spot, whereas Muhammad Abad and Muhammad Jafar were severely injured who were shifted to the hospital. Allegedly, the commotion took place when the accused had asked the complainant party to leave the farm and their water rotation, which the complainant party refused and it resulted in them being shot at. However, a perusal of record shows that a counter version was lodged by the accused against the complainant party in FIR No. 46 of 2008 wherein the convicts/accused stated that on the incidental day, the complainant in this FIR namely Zafar boarded in a jeep with his brother Kaleem, Matal and Rahid to visit their land and when they reached near R-14 water course, allegedly the complainant party in original case opened fire on them with sophisticated weapons in order to commit their murder, set their jeep on fire and after some more ineffective firing, left. In this commotion, Kaleem and Matal Mari were allegedly injured and was taken for treatment where after the FIR was lodged.
12. It is a matter of record that the FIR in this case was lodged promptly, the counter version presented by the complainant party in the present case clearly places all the accused on the place of incident and any plea of alibi taken by them were already found to be not trustworthy. Not only this, two people lost their life in this commotion whereas two others were injured. At this point in time, it is also essential to point out that appellant Shabbir Ahmed, in a Criminal Miscellaneous Application filed before this Court by Nazir Ahmed and Bashir produced a medical certificate, which after inquiry was found to be a forged document. The report of the inquiry committee is available on the record at page 583 of the R&Ps. While this may not essentially prove much, it shows to this Court the extent to which the accused/convicts can and have gone to in order to prove illegitimate claims. Not only this, it was argued to a great length by the counsel for convicts/appellants that it was not even the turn of complainant party to use the water course, therefore they came there without any purpose and it was in fact the turn of convicts/appellants. It was argued that the complainant party came there and caused the ruckus. However, a perusal of record reveals the time table for the use of water course at page 656 of the R&Ps and in that, it is clearly shown that it was in fact the complainant's turn, as available at Serial No. 21 of the list, the day being a Wednesday which was also the day on the date of incident. It was also argued by the counsel for appellants that the complainant party was acquitted in the case that was filed by the convicts/appellants against them in the counter case. At this point, it is held that the same is of no consequence to the case of prosecution. If anything, it enables this Court to presume that a false story was concocted by the convicts/accused to get away from any liability when it came to the murder of two innocent individuals and injuries to two other.
13. The presence of the complainant and witnesses was Established, they were available on their own land to cultivate the same and take their turn on the water course. Furthermore, the evidence of the complainant and P.Ws is consistent, straight forward, confidence inspiring and trustworthy enough and their presence at the time of incident has been explained, therefore their evidence alone is sufficient to hold the appellants guilty of the charge. Their statements under Section 161, Cr.P.C. were recorded by the IO in which they supported the version present in the FIR. The convicts/appellants were nominated in the FIR with specific roles. Appellant Shabir Ahmed instigated all the convicts/accused to attack the complainant party. Appellant Zaffar Iqbal, armed with a rifle, fired upon Allah Rakhio who died on the spot. Appellant Nazir Ahmed fired from his gun at Muhammad Abad who received two firearm injuries on his left shoulder and buttock. Appellant Mattal fired from his weapon at Muhammad Jaffar which hit him on his right knee and left shoulder. The statements and FIR are so clear as to even disclose the place where the bullets hit the injured and deceased. It may be observed that the medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case. Injuries sustained by the deceased are consistent with the weapons recovered from the appellant(s). These various pieces of prosecution evidence are so naturally synchronized with one another; that every hypothesis of appellants' innocence stands excluded. This is best available evidence, in the circumstances of the case with no padding or over-doing. Law does not require any particular quantum of evidence to establish a fact and a single piece of evidence, in case found consistent with truth and probability, can sustain the charge.
14. The defence counsel failed to point out any major contradictions in the evidence of the PWs and those pointed out are very minor in nature. In the Court's mind, the primary consideration in appraising the evidence given by a witness is to determine several aspects; why has the witness offered to testify; has he seen the occurrence, if so does the witness have a motive to falsely implicate a person who was not among the culprits or to exaggerate the part played by any of them. Once these are satisfied, then comes the consideration of contradictions. However, it is pertinent to note here that a witness may make contradictory statements on some of the details of incidents in respect of the one he is deposing in Court. These variations may well be due to mere lapse of memory or confusion caused in his mind by a relentless cross-examiner. Moreover, it is not uncommon that a cross examiner puts words in the mouth of a witness and the presiding officer is not vigilant to check it. Moreover, it is well settled principle of law that minor contradictions are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies/contradiction. It needs no special emphasis to state that every contradiction cannot take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness to be considered material. In the present case, the discrepancies so pointed out by the defence counsel are very minor in nature as already stated. It is now a settled rule of law that if the testimony of relative is corroborated through circumstantial evidence or other pieces of evidence, then his relationship, friendship or relation with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The mere fact than a witness is relative of the deceased is not per se enough to discredit the witness unless it is established that the witness was inimical towards the accused and if it is found, that in the circumstances of the case, the presence of such a witness cannot be denied, then his evidence could not be discredited. Similarly, the evidence of any eye-witness cannot be rejected out rightly, merely because such witness belongs to one party or the other involved in a factional dispute, if otherwise such a witness has established his veracity.
15. The case of the prosecution is firmly structured on ocular account, furnished by the witnesses, viewed from any angle, natural and trust-worthy. Duration of the injuries coincides with the fatality that befell both the deceased. Wounds on the person of both deceased and two injured are consistent with the weapons used. The witnesses are in comfortable unison on all the salient aspects of the incident as well as details collateral therewith. The cross-examination remained inconsequential inasmuch as nothing adverse could be solicited from the witnesses except for a volley of suggestions, vehemently denied. These various pieces of evidence are inexorably pointing to the appellant with no space to entertain any hypothesis of innocence or substitution. In this respect, reliance is placed on a similar case reported as Wazir Khan and another v. Sherin Dad and others (2020 SCMR 1264). In another case reported as Munir Ahmed v. The State (2020 SCMR 968), wherein it has been held that:
“The witnesses are in a comfortable corroborative unison on all the salient aspects of the prosecution case as well as details collateral therewith... having otherwise no axe to grind; a directionless cross- examination, couched in suggestions, each vehemently denied, reflects nothing but an exercise in futility. Position taken by the defence that no encounter took place on the fateful day nor at a place depicted in the site plan is a far cry in the face of formidable evidence comprising seizure of human blood and a large number of casings secured vide inventories of even date from the designated spot in the village….. Even a most stringent analysis of prosecution evidence does not allow space to admit any hypothesis other than petitioner's guilt. Petition fails. Leave refused.”
(emphasis supplied)
16. Adverting to the acquittal No. 106 of 2010, challenging the acquittal of the two accused namely Bashir Ahmed and Rahib Khan, trial Court has assigned adequate reasoning for their acquittal in its judgment by stating that it was at no point proven, even by the medical evidence, that the shots, if any fired by the two, hit any of the deceased or injured people. The counsel for appellant has failed to point out any illegality committed by the trial Court in acquitting the two. The principles for appreciation of evidence in appeals against acquittal are well settled. In the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), it has been observed by the Hon'ble Apex Court of Pakistan that unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence, no other conclusion could be drawn except that the respondent/accused is guilty or there has been made complete misreading of evidence leading to miscarriage of justice, High Court would not exercise jurisdiction u/S. 417, Cr.P.C. It was further held that in exercising this jurisdiction, High Court has to always be slow unless it feels that gross injustice has been done in the administration of criminal justice.
17. It may be observed here that an accused is presumed to be innocent in law and if after regular trial he is acquitted of the charge, he earns double presumption of innocence and there is heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, therefore, this Court is of view that the prosecution failed to discharge the onus and the finding of acquittal recorded by the learned trial Court is neither arbitrary nor capricious to warrant interference. It is pertinent to mention that when an accused is acquitted from the charge by Court of competent jurisdiction, then it is well established principle of law that double presumption of innocence will remain attached with the judgment of acquittal, therefore, such judgment cannot be interfered with unless it is proved that same is arbitrary, shocking, capricious, fanciful and against the settled principles of criminal administration of justice. In this respect, reliance may respectfully be placed on the case of State/Government of Sindh through Advocate General, Sindh Karachi v. Sobharo (1993 SCMR 585).
18. Now coming to the revision application No. 88 of 2010 calling in question the sentence awarded to the sentences awarded to the convicts/appellants by the trial Court. Without doubt, the learned trial Court came to the conclusion that prosecution had established its case against them beyond any shadow of doubt, however there existed one important mitigating circumstance that stopped the trial Court from issuing the capital punishment, being death penalty, to the convicts/accused. The incident in question was something that had happened in the spur of a moment when the complainant party approached the accused who had turned off their water supply. When the complainant party turned it back on, a heated argument took place and the unfortunate calamity befell upon the parties. There was no premeditation involved, nor a set motive as the heated argument at best was a fuel to the fire at that exact moment and not some century old dispute that drove the convicts/accused to take away innocent lives. There have been many precedents where the
“As far as awarding of death sentence to the appellant by the Courts below is concerned, we have observed that the occurrence had taken place at the spur of the moment due to sudden provocation without any pre planning and pre-mediation.”
(emphasis supplied)
19. There is no doubt that when an offence is proved, it has to be met with the maximum sentence provided thereof. However, there is no yardstick vis-a-vis restricting or curbing the discretion of the trial Court while passing the sentence. It is the circumstances present in each case which justify the severity or leniency in passing a legal sentence. In the case in hand, the trial Judge in his wisdom declined to award death sentence to the appellant due to the presence of mitigating circumstances. We, in view of those circumstances, also feel inclined to hold the same view.
20. For whatever has been discussed above, Criminal Appeal No. D-157 of 2010 is dismissed and the conviction and sentence awarded to the appellants is upheld. Criminal Acquittal Appeal No. D-106 of 2010 is also dismissed for the discussion supra and the impugned judgment is upheld. Lastly, the Revision Application No. D-88 of 2010 filed for enhancement of sentence is also dismissed pursuant to the above discussion and reasons.
(A.A.K.) Appeal dismissed
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