PLJ 2024 Cr.C. (Note) 88
[Lahore High Court, Lahore]
Present: Ms. Aalia Neelum and Farooq Haider, JJ.
MUHAMMAD SHAFEEQ--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 78614 of 2019, decided on 2.3.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 109 & 34--Qatl-i-amd--Conviction and sentence--Challenge to--It is well settled that acquittal cannot be disturbed for reason that another view was equally possible--After, acquittal, accused attains double presumption of innocence and same can only be disturbed/interfered with if it is capricious/fanciful/ perverse/ speculative/artificial or arbitrary, however, without these factors, order of acquittal cannot be interfered with and in this regard--Impugned judgment is well reasoned and conclusion arrived at in same is perfectly valid and quite in accordance with law and peculiar “facts & circumstances” of case; therefore, same needs no interference. [Para 3 & 4] A, B & C
2014 SCMR 749, PLD 1985 SC 11, PLD 2006 SC 427, 2016 SCMR 1241 & PLD 2020 SC 617.
Modification in Judgment--
----If Court having examined decision challenged before it, is satisfied with its reasoning and conclusions and is of view that it does not call for any interference, then Court can simply endorse impugned decision and adopt reasoning of Court below; relevant portion of said order is hereby reproduced:
“It is emphasized that if this Court, having examined Judgment challenged before it, is satisfied with its reasoning and Conclusions and is of view that it does not call for any Interference, this Court can simply endorse impugned Judgment and adopt reasoning of Court below--In such a Case, re-tracing same path travelled by Court below Appears to be an unnecessary exercise and a waste of public Time-time which can be allocated to other cases where Decisions of Courts below have been overturned or modified--Finding no reversible error in judgment, a concise, simple Order can suffice--On other hand, if Court is to reverse Or modify judgment of Court below, reasons for Reversal or modification must be set forth.
[Para 4] D
Constitution of Pakistan, 1973--
----Art. 10-A--Right of fair trial--This approach adopted by Court, is by no means a short-cut which is offensive to fair trial under Article 10-A of Constitution nor does it in any manner undermine due process and fair-play--It is simply a creative way forward that spares Court from writing opinions where a mere adoption of a well- reasoned judgement of Court below through a short order serves purpose adequately. [Para 4] E
Mrs. Naila Mushtaq Ahmad Dhoon, Advocate for Appellant.
Rana Ahsan Aziz, Additional Prosecutor General for State (on Court’s call).
Date of hearing: 2.3.2023.
Order
This appeal has been preferred by Muhammad Shafeeq (appellant) against acquittal of Irshad Bibi (now arrayed as Respondent No. 2 in instant appeal) recorded vide judgment dated 28.11.2019 by learned Additional Sessions Judge/M.C.T. Court, Mianwali in case arising out of F.I.R. No. 72/2017 dated 13.05.2017 registered under Sections 302, 109, 34, PPC at Police Section Chikrala, District: Mianwali; relevant portions of the judgment are reproduced as below:
“7. Having considered the respective contentions advanced at the bar, having perused the oral as well as documentary evidence of prosecution vis-à-vis defense version and having gone through the precedent & statutory law, it is observed that the charge against accused Irshad Bibi is that on 13.05.2017 she abetted her co-accused Muhammad Ejaz to murder her husband Fateh Muhammad and thereafter his co-accused fired upon and murdered Fateh Muhammad at about 09:00 pm on 13.05.2017 in the area of Nallah Raghera, Dhiba Karsial within the limits of Police Station Chikrala, Mianwali. Accused has pleaded her innocence with the plea that her husband lost his life in the dark hours of night in an unwitnessed occurrence and complainant falsely implicated her by concocting false evidence of abetment. The first point for determination is that when and where the deceased lost his life. The statement of Dr. Maskeen Ullah (PW- 10) reveals that he conducted post-mortem examination of the dead body of Fateh Muhammad on 14.05.2017 at 07:50 am vide post-mortem report Exh.PC. He opined that the deceased died as a result of fire-arm injuries which led to the damage to vital organs i.e. both lungs, heart & major blood vessels and that the time elapsed between death and post-mortem was 08 to 10 hours. It is evident from the statement of Medical officer (PW-10) that the occurrence took place in between 09:50 pm to 11:50 p.m of 13.05.2017. Investigating officer (PW-8) came to the place of occurrence at about 12:15 am of 14.05.2017, prepared injury statement Exh. PH and inquest report Exh.PJ, wherein he recorded four fire-arm wounds on the dead body and time of death as 11:00 pm of 13.05.2017. Investigating officer also collected blood stained soil & crime empty from the place of occurrence and Tariq Mehmood ASI (PW-9) deposited the parcels of blood stained soil & crime empty in the P.F.S.A, Lahore on 24.05.2017. P.F.S.A report Exh.PP reveals that the soil was containing human-blood. Investigating officer also prepared visual site-plan of the place of occurrence (Exh.PK) wherein he showed the place of occurrence to be situated adjacent to Nallah Raghera in the area of Dhiba Karsial. The medical evidence has proved that the deceased sustained fire-arm injuries in between 09:20 pm to 11:20 pm of 13.05.2017 and he died as a result of said injuries. The prosecution has also proved that the deceased was murdered at the spot shown in site-plan Exh.PK.
08. Having determined that the deceased met an unnatural death as he was murdered through fire-arm injuries, the next point for determination is that whether accused abetted the murder of deceased and her co-accused Muhammad Ejaz murdered him with her active assistance. It is pertinent to observe that the medical evidence can only state the nature, number & locale of injuries, date & time of occurrence and the nature of the weapon, however it does not provide any hint about the author of the injuries. The prosecution has attempted to answer this point through the statements of complainant & Muhammad Raees (PW-3). These witnesses have stated that two unknown persons fired at the deceased on 13.05.2017 at about 09:00 pm at the venue of the occurrence, that two fire shot by unknown culprit in white clothes from his double barrel gun .12-bore landed on the right upper arm and on the back of right shoulder of deceased and that they saw the occurrence in the light of the headlight of motorcycle & torch. The complainant has stated that he went to the police station and lodged F.I.R Exh.PA against unknown culprits but he did not mention the presence of any female culprit at the date & time of occurrence.
09 The investigating officer (PW-8) did not make any headway in the investigation to trace the culprits till 18.05.2017 and then complainant submitted application (Exh.PB), got recorded his supplementary statement and also produced Muhammad Ameer (PW- 11) & Ahmad Khan s/o Mawaz Khan (given up PW). Complainant stated that PW-11 & Ahmad Khan s/o Mawaz Khan told him that on 13.05.2017 they heard accused Irshad Bibi and her co-accused Muhammad Ejaz while hatching a conspiracy about the murder of Fateh Muhammad, Complainant further stated that he subsequently gained the information that accused Irshad Bibi was also present at the venue of the occurrence and she had signaled accused Muhammad Ejaz about the arrival of Fateh Muhammad. It is to be noted that accused Irshad Bibi is the widow of deceased Fateh Muhammad and complainant has nowhere stated that he ever suspected any illicit relations between accused persons prior to the occurrence. Complainant has not mentioned in application (Exh.PB) that which source informed him about the presence of accused Irshad Bibi at the place of occurrence and her signal to her co-accused with torch on the arrival of Fateh Muhammad. It is further noted that Muhammad Raees (PW-3) has not said a single word about the presence of accused Irshad Bibi at the place of occurrence and her alleged signal to her co-accused.
10. The statement of investigating officer (PW-8) and record of investigation reveal that complainant first time nominated the accused through his supplementary statement dated 18.05.2017. Complainant submitted application (Exh.PB) to investigating officer on 18.05.2017 but he did not mention even a single word in that application that he identified accused at the time & place of occurrence, rather he implicated accused on the basis of the statements of Muhammad Ameer (PW-11) & Ahmad Khan s/o Mawaz Khan (given up PW), Muhammad Shafique Khan draftsman (PW-4) has stated that he visited the place of occurrence on 17.05.2017 & 20.05.2017 he handed over scaled site-plan Exh.PF & Exh.PF/I to investigating officer. He stated in cross-examination that witnesses had not pointed out name of any accused at the time of his visit. He further stated that investigating officer had not directed him that to add the name of any accused in the scaled site-plan on 20.05.2017. Perusal of Exh.PF reveals that investigating officer recorded inspection notes in red ink on 20.05.2017 but he did not mention the name of any accused in the scaled site-plan. If the complainant would have nominated the accused on 18.05.2017 and would have shown her presence at the time & place of occurrence, then the investigating officer would have also recorded the name of accused Irshad Bibi in the inspection notes on Exh. PF.
11. The next point for determination is that whether accused Irshad Bibi conspired the murder of deceased with her co-accused Muhammad Ejaz and abetted him for the murder of her husband. The prosecution has produced a solitary witness Muhammad Ameer (PW-11) to prove the abetment and conspiracy of the occurrence inter-se accused persons. PW-11 has stated that he came to the house of deceased with Ahmad Khan on 13.05.2017, that accused persons Irshad Bibi and Muhammad Ejaz was present in the western room of the house and that they heard from the close window of the room that accused persons were conspiring the murder of the deceased. The statement of PW-11 does not inspire any confidence as he stated that he is close relative of complainant, deceased & accused but he did not inform the deceased, complainant, father of deceased, the elders of accused Muhammad Ejaz and family members of accused Irshad Bibi about the alleged abetment. He even did not inform the deceased about the planning of his murder through cell phone. This witness has failed to establish the purpose of his visit to deceased and if he would have actually heard the detailed planning of the murder of the deceased, then he would have definitely informed the deceased or his family members and he would have also admonished the accused persons. He has failed to explain his silence in that regard till 18.05.2017 and the unexplained delay in his statement before the investigating officer makes the same absolutely doubtful and prosecution has failed to convince the Court to accept the same as correct.
12. The prosecution has failed to prove the abetment inter-se accused persons beyond the shadow of reasonable doubt. Prosecution has argued that accused has failed to prove her defense version. It is noted that the defense may take multiple and even divergent pleas, however its failure to prove its version does not absolve the prosecution from its legal obligation to prove the charge against the accused on the strength of its evidence beyond the shadow of reasonable doubt. The prosecution case against the accused is pregnant with multiple doubts and it is settled law that the benefit of doubt is to be extended in favour of the accused in view of the principles settled in the precedent cases of Tariq Pervaiz vs. The State (1995 SCMR 1345), M. Akram vs. The State (2009 SCMR 230). Muhammad Zaman vs. The State (2014 SCMR 749). M. Munsha vs. The State (2018 SCMR 772), Abdul Jabar vs. The State (2019 SCMR 129) and Mst. Asia Bibi vs. The State (PLD 2019 SC 64).
13. In view of above discussion, it is held that the prosecution has failed to prove the charge against the accused beyond the shadow of reasonable doubt, therefore accused Irshad Bibi is hereby acquitted from the charge by extending the benefit of doubt.”
2. Learned counsel for the appellant submits that impugned order of acquittal of Respondent No. 2 has been passed by the learned trial Court against the law and facts of the case. However, on Court’s query, she remained unable to refer any mis-reading or non-reading of the evidence in the same.
3. After hearing learned counsel for the appellant, learned Additional Prosecutor General for the State and going through the impugned judgment, we could not find any illegality, or perversity in the same regarding acquittal of Respondent No. 2. By now it is well settled that acquittal cannot be disturbed for the reason that another view was equally possible; in this regard, guidance is sought from the dictum laid down by the august Supreme Court of Pakistan in the case of “Muhammad Zaman versus The State and others” (2014 SCMR 749). Furthermore, after, acquittal, accused attains double presumption of innocence and same can only be disturbed/interfered with if it is capricious/fanciful/perverse/speculative/artificial or arbitrary, however, without these factors, order of acquittal cannot be interfered with and in this regard, reliance can be placed upon the cases of “Ghulam Sikandar and another versus Mamaraz Khan and others” (PLD 1985 Supreme Court 11), “Mst. Zahida Saleem versus Muhammad Naseem and others” (PLD 2006 Supreme Court 427) and “Javaid Akbar versus Muhammad Amjad and Jameel @ Jeela and another” (2016 SCMR 1241); further guidance in this regard is also sought from the case of “Haji Paio Khan versus Sher Biaz and others” (2009 SCMR 803).
4. We have noticed that impugned judgment is well reasoned and conclusion arrived at in the same is perfectly valid and quite in accordance with law and peculiar “facts & circumstances” of the case; therefore, same needs no interference. It goes without saying that august Supreme Court of Pakistan in the case of “Farooq Hussain and others versus Sheikh Aftab Ahmad and others” (PLD 2020 Supreme Court 617) has clearly observed that if the Court having examined the decision challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, then Court can simply endorse the impugned decision and adopt the reasoning of the Court below; relevant portion of the said order is hereby reproduced:
“It is emphasized that if this Court, having examined the judgment challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, this Court can simply endorse the impugned judgment and adopt the reasoning of the Court below. In such a case, re-tracing the same path travelled by the Court below appears to be an unnecessary exercise and a waste of public time-time which can be allocated to other cases where the decisions of the Courts below have been overturned or modified. Finding no reversible error in the judgment, a concise, simple order can suffice. On the other hand, if the Court is to reverse or modify the judgment of the Court below, the reasons for the reversal or modification must be set forth.
3. This approach adopted by the Court, is by no means a short-cut which is offensive to fair trial under Article 10-A of the Constitution nor does it in any manner undermine due process and fair-play. It is simply a creative way forward that spares the Court from writing opinions where a mere adoption of a well- reasoned judgement of the Court below through a short order serves the purpose adequately.”
5. In view of what has been discussed above, instant appeal is without merits and same is hereby dismissed.
(A.A.K.) Appeal dismissed
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