PLJ 2022 Cr.C. (Note) 18
Appeal against acquittal--
----Scope of--In an appeal against acquittal Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to findings of Court acquitting accused--This approach is slightly different than that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to accused--This difference of approach is mainly conditioned by fact that acquittal carries with it two well-accepted presumptions: One initial, that, till found guilty, accused is innocent; and Two that again after trial a Court below confirmed assumption of innocence. [Para 12] A
PLD 1985 SC 11.
Appeal against acquittal--
----Scope of--Acquittal will not carry second presumption and will also thus loose first one if on points having conclusive effect on end result Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. [Para 12] B
Acquittal--
----Re-appraisal of evidence--Court would not interfere with acquittal, merely because on re-appraisal of evidence it comes to conclusion different from that of Court acquitting accused provided both conclusions are reasonably possible--If however, conclusion reached by that Court was such that no reasonable person would conceivably reach same and was impossible then this Court would interfere in exceptional cases On overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose--Important test visualized in these cases, in this behalf was that finding sought to be interfered with, after scrutiny under foregoing searching light, should be found wholly as artificial, shocking and ridiculous. [Para 12] C
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 25(4) & 7(c)--Criminal Procedure Code, (V of 1898), Ss. 365-A & 392--Appeal against acquittal--Presumption of innocence--All these facts when scrutinized on judicial parlance with regard to probability of prosecution version and credibility/ impartiality of prosecution witnesses, unexplained delay of twelve days in reporting matter to police, fact that nothing was recovered on pointation of respondent coupled with fact that during course of investigation complainant had submitted duly sworn affidavit; whereby respondent was exonerated and this fact was also supported by other prosecution witnesses including abductees, which persuade this Court that trial Court was left with no option except to acquit accused--Held: After acquittal presumption of' innocence becomes double in favour of accused--Appeal was dismissed. [Para 13 & 14] D & E
Acquittal--
----Presumption of innocence--Moreover, deputy Prosecutor General has failed to convince this Court to interfere in impugned judgment of learned trail Court, which even otherwise is well justified.
[Para 14] E
2010 SCMR 222.
Mr. Munir Ahmed Sayyal Deputy Prosecutor General for Appellants/State.
Ch. Muhammad Ashraf, Advocate for Respondents No. 2.
Date of hearing: 13.5.2015.
PLJ 2022 Cr.C. (Note) 18
[Lahore High Court, Lahore]
Present: Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ.
STATE--Appellant
versus
JAVED alias JAIDA and another--Respondents
Crl. A. No. 394 of 2003, heard on 13.5.2015.
Judgment
Sayyed Mazahar Ali Akbar Naqvi, J.--By means of instant criminal appeal filed under Section 25(4) of the Anti-Terrorism Act, 1997, read with Section 417(1), Cr.P.C. the State has called into question the vires of impugned judgment dated 14.02.2003, passed by learned Judge, Anti-Terrorism Court No. 1, Gujranwala, by virtue of which respondents were acquitted of the charge in case FIR No. 68/2002, dated 20.03.2002, offence under Sections 365-A, 392, PPC, read with Section 7(e) of the Anti-Terrorism Act, 1997, Police Station Saddar Narowal. It is pertinent to mention here that during the pendency of the instant appeal, on 29.04.2015 copy of FIR No. 204/2014, dated 21.05.2014, offence under Sections 302, 365, 148, 149, PPC, Police Station Saddar Narowal, was placed on record according to which Javed alias Jaida/respondent had been murdered, therefore, to his extent the appeal stand abated and the matter is live only to the extent of Sajjad Ahmed son of Muhammad Ashiq/Respondent No. 2.
2. Facts of the case succinctly required for determination of the lis in hand are that Shahid Nazir son of Nazir Ahmed, caste Bajwa, resident of Village Akalgarh, District Narowal (PW-1) submitted an application (Exh.PA) before the police with the averments that on 8/9.03.2002 at 7:30 p.m. the complainant along with his mother, Zahid Nazeer alias Mochha (younger brother), Asghar Ali alias Tedi (chachazad), Zahid Akram alias Bhoora (bhateja) and other family members were sitting in their house situated at Mouza Kal Garh. In the meanwhile Muhammad Lateef son of Muhammad Shareef, caste Jatt called from outside to open the door. Bhateja of the complainant while opening the door saw that three persons namely (1) Javed alias Jaida son of Muhammad Ashraf, caste Jatt, resident of Old Wahla armed with kalashnikov (2) Muhammad Ikhlaq son of Rehmat Ullah, caste Jatt armed with kalashnikov, (3) Sajjad son of Muhammad Ashiq, caste Jatt, resident of Chahal armed with pump action, had made him hostage, entered the house. At that time they had made hands up of Muhammad Latif and Bhoray. Besides them two unknown persons armed with fire-arms were also standing outside the main door. While entering the house the accused directed the inmates to put their hands up and extended threats of dire consequences. They snatched golden ornaments belonging to sister of the complainant comprising two ear rings, four bangles and one chain. They further demanded Rs. 1,00,0000/-, however, mother of the complainant handed over them Rs. 30,000/- on which the accused took brother of the complainant (Zahid Nazeer alias Poma) and bhateja at a distance of 1-acre and demanded the amount with the threats that otherwise both of them would be done to death. Mother of the complainant further handed over them Rs. 10,000/-, however, they demanded more amount. The complainant averred that after some time the police was informed and on seeing the police vehicles, the accused took Zahid Nazeer alias Poma and Zahid Akram alias Bhora towards Village Marali The complainant party and police officials started search of the abductee and after 5 hours, the accused released Zahid Nazeer alias Poma and Zahid Akram alias Bhora, who told that the accused took them at Tibba and after putting off their clothes, inflicted beating/torture upon them.
3. The complainant got Zahid Nazeer alias Poma medically examined and submitted his application on the basis of which formal FIR (Exh.PC) was chalked out and the investigation was entrusted to Muhammad Rashid Baig, ASI (PW-11), who inspected the place of occurrence and recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. He also prepared rough site-plan of the place of occurrence (Exh.PF). The Investigating Officer conducted raids to arrest Respondent No. 2, however, could not arrest them. Thereafter, the investigation was entrusted to Faryad Ali, S.I. (not produced) and during the course of interrogation, the complainant submitted an affidavit; thereby exonerating the respondent, which was also supplemented by the other prosecution witnesses including the abductees. Therefore, the Investigating Officer opined that the respondent had no concern whatsoever with the occurrence.
4. After completion of the investigation report under Section 173, Cr.P.C., was prepared and sent to the Court of competent jurisdiction. The learned trial Court vide order dated 31.10.2002 formally charge sheeted the accused-respondent to which he pleaded not guilty and claimed trial. In order to substantiate its case the prosecution produced as many as eleven (11) prosecution witnesses. Thereafter, statements of the accused/respondent was recorded under Section 342, Cr.P.C.; wherein he totally denied the prosecution evidence.
5. The learned trial Court after affording an opportunity of hearing to both the parties in terms of judgment dated 14.02.2003 acquitted the accused-respondent from the charge, which has been challenged by means of instant Criminal Appeal.
6. Learned Deputy Prosecutor General while advancing his arguments submitted that the impugned judgment has been recorded by the learned trial Court in a slipshod manner without adverting to real facts of the case, as well as, in derogation to the material available on record. It was argued that although the case was not lodged promptly, however, such delay was explained by the prosecution. Further submitted that the prosecution witnesses while appearing in the witness box substantiated the prosecution case with minute details and despite lengthy cross-examination their testimony could not be shattered by any stretch of imagination. Next contended that after abduction the accused had inflicted beating/torture upon Zahid Nazir, who was medically examined by Dr. Muhammad Younas (PW-7), which fully supplements the prosecution story. Learned Law Officer next argued that the complainant and other prosecution, witnesses had no previous animosity against the accused/respondent for his false implication in the instant case. It was argued that the learned trial Court while passing the impugned judgment did not advert to the material available on record and perusal of the impugned judgment reveals that not a single word has been written in rebuttal of the prosecution evidence available on record. Added that while appreciating these facts, learned Division Bench had rightly issued notice against the respondent. It was lastly prayed that in this backdrop, interference by this Court in the acquittal judgment is called essential for safe dispensation of criminal justice.
7. On the other hand, learned counsel representing Respondent No. 2 supported the judgment recorded by the learned trial Court. It was argued that according to contents of the crime report the occurrence had taken place on the evening of 8th March 2003, however, the complainant moved application for registration of the case on 19.03.2002 while the FIR was lodged on the following day. Contended that although in the crime report the respondent was alleged definite role, however, during the course of investigation, the complainant Shahid Nazeer (PW-1) sworn an affidavit; whereby the respondent was exonerated while other prosecution witnesses including the alleged abductees also supplemented the stance of the complainant. Next submitted that during the course of investigation nothing was recovered on the pointing out of the respondent and even he was not recommended for challan. Learned counsel further contended that in view of deficient/sketchy material brought forth on record, the learned trial Court was left with no option except to acquit the accused, hence, the appeal in hand is liable to be dismissed.
8. We have considered the arguments advanced by learned counsel for the parties and have also gone through the record available on file.
9. As per prosecution version the occurrence had taken place on the evening of 8th March 2002 at 7:30 p.m. and after few hours the alleged abductees were also released by the accused persons. Moreover, according to the prosecution version, the police informed about the occurrence and many police personnel had also reached there. Similarly the complainant, as well as, other prosecution witnesses also knew the accused with their all antecedents, however, astonishingly they kept mum for about two weeks when on 20.03.2002, the matter was reported to the police. Neither during the course of investigation nor during the course of trial, the prosecution had been able to adduce any convincing explanation from which it could be gathered that under what compelling circumstances, the matter was reported to the police with such an inordinate delay. This fact becomes more important particularly when father of the complainant, as well as, one of the abductees namely Zahid Nazeer is stated to be a retired Police Officer while his three brothers were serving the Police Department at the time of alleged occurrence. In this backdrop as rightly held by the learned trial Court, this fact alone created doubt about the reasonability/plausibility in the prosecution version.
10. Perusal of material available on record reveals that during the course of investigation on 22.07.2002, the complainant had submitted an affidavit duly sworn by him before the Investigating Officer; whereby the accused/respondent was exonerated from the accusations. Moreover, both the alleged abductees, as well as, other prosecution witnesses of occular account also supplemented the affidavits sworn by the complainant. After through investigation by the Investigation Officer, which was verified by the SHO concerned, Sajjad Ahmed/respondent was not recommended for challan. Moreover, during the course of investigation nothing was recovered on the pointation of the respondent.
11. While going through the material brought forth on record minutely, we have noticed that except oral statements which have already been discarded by the learned trial Court, there is no material against the accused to saddle them with the liability.
12. The imperative and foremost aspect of this case relates to the scope of appeal against acquittal. In its landmark judgment in the case of Ghulam Mustafa and another vs. Mamraz Khan and others (PLD 1985 SC 11), the august Supreme Court of Pakistan has provided following guidelines:
"(1) In an appeal against acquittal the Supreme 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 than 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: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus loose 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.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from a normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with the acquittal, merely because on re-appraisal 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 conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for 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 foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
13. All these facts when scrutinized on judicial parlance with regard to probability of the prosecution version and the credibility/ impartiality of the prosecution witnesses, unexplained delay of twelve days in reporting the matter to the police, the fact that nothing was recovered on the pointation of the respondent coupled with the fact that during the course of investigation the complainant had submitted duly sworn affidavit; whereby respondent was exonerated and this fact was also supported by the other prosecution witnesses including the abductees, which persuade this Court that the learned trial Court was left with no option except to acquit the accused.
14. Needless to mention that after acquittal presumption of' innocence becomes double in favour of the accused. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Haji Amann Ullah vs. Munir Ahmed and others (2010 SCMR 222). Moreover, learned Deputy Prosecutor General has failed to convince this Court to interfere in the impugned judgment of the learned trail Court, which even otherwise is well justified.
15. In sequel to what has been discussed above we find no force in Crl. Appeal No. 394/2003 to the extent of Sajjad Ahmed/respondent, therefore, the same hereby stands dismissed. Resultantly, notice issued to the respondent vide order date 22.04.2003 shall cease existence forthwith.
(A.A.K.) Appeals dismissed
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