RAHEEM DAD vs Mir HASSAN and 4 others

ORDER

' AFTAB AHMED GORAR, J.---Through this appeal, the appellant has assailed the Judgment dated 22-11-2011 passed by the learned IIIrd Additional Sessions Judge Shaheed Benazirabad in S.C. No,33 of 2008 re State v. Mir Hassan and others in Crime No,114 of 2007 of Police Station Daur for offences punishable under sections 302, 147, 148, 149, P.P.C. Whereby the respondents Nos.1 to 4 have been acquitted.

2. Facts leading to this appeal are that appellant registered F.I.R. With Police Station Daur on 31-12- 2007. According to F.I.R., about five months back, his brother Manzoor was going to meet his friends, whom, accused Meeral and others had restrained him from passing from that area. On 30-12-2007 complainant and his brother Muhammad Ayoob went to sleep after taking meals when at 11-30 p.m. Complainant heard cries of his brother Muhammad Ayoob and on torch-light, he saw accused Meeral, Sheral, Bashir and Mir Hassan armed with pistols and accused Gul Baig armed with gun. Accused Meeral and Gul Baig fired from their respective weapons on his brother Muhammad Ayoob, who was sleeping on the nearby cot, which hit him, and started raising cries.

The complainant also raised cries, which attracted his maternal uncle Khadim Hussain, his brother Mumtaz and other villagers who came running and they also saw the accused persons on torch- light and there were also two unidentified accused persons standing outside the house with guns.

Thereafter the accused persons went away in Datsun towards Nawabshah. Complainant noticed that his brother had sustained firearm injuries over the nipple of his right side of chest and died at the spot. Complainant leaving the P.Ws. With the dead body, appeared at Police Station and lodged F:I.R.

3. The respondents Nos.1 to 4 were tried while accused Shabir was declared proclaimed offender and proceedings under sections. 87 and 88 Cr.P.C. Were initiated against him.

4. In order to prove its case, prosecution examined in all 8 witnesses and closed its side.

5. Statements of accused/respondents were recorded under section 342 Cr.P.C., wherein they denied the prosecution allegations and claimed their innocence.

6. After hearing learned counsel for the respondents and learned State counsel, learned trial Court acquitted the respondents Nos.1 to 4 and ordered case against absconding accused Shabir to be kept on dormant file vide 'impugned judgment.

7. Learned counsel for the appellant argued that learned trial Court has failed to appreciate the evidences available on record. He further contended that the respondents/accused had failed to establish any enmity with the complainant. He submitted that the prosecution proved its case by producing the ocular evidence duly supported by the medical evidence but the learned trial Court totally misread it which resulted in miscarriage of justice. He also submitted that the impugned Judgment suffers from material infirmities warranting interference of this court as the P.Ws. In their evidences fully implicated the respondents/accused and had not contradicted with each other and were also corroborated by the medical evidence. Learned counsel further contended that accused Meeral, Sheral and Gul Baig were absconders and were arrested after two years.

According to the learned counsel, the prosecution has successfully proved its case against the respondents/ accused, therefore, they were liable for conviction.

8. On the other hand, learned Additional Prosecutor-General Sindh supports the impugned Judgment and contended that there are material contradiction in evidence of the P.Ws. He further contended that the identification of the accused on torch-light is doubtful as it is hardly possible to identify a person in torch light during the night.

9. We have heard learned counsel for the parties and have examined the material available on record. The complainant in his. F.I.R. Alleged that two accused namely Meeral and. Gul Baig armed with pistol and gun respectively fired upon the deceased, who raised cries and then died at the spot. The complainant stated in his F.I.R. That his brother Mumtaz was residing separately and he was, residing along with his deceased brother but P.W. Mumtaz in his evidence deposed that he heard noise, woke up and saw the accused persons. Thus the presence of P.W. Mumtaz at the place of incident was highly doubtful. The complainant as well as other P.Ws. Deposed in their evidence that accused Meeral and Gul Baig fired upon the deceased but the medical report shows that deceased sustained only one firearm injury. Besides this, the complainant party claimed to have identified the accused persons on torchlight, which is a weak piece of evidence and even such torch was not produced before the Investigating Officer. It is also observed that police recovered one empty bullet from the place of incident but same was also not produced by the Investigating Officer during the trial.

' In case of Inayatullah Butt v. Muhammad Javaid and 2 others (PLD 2003 SC 563), it has been held by the honourable Supreme Court that an appeal against the acquittal has distinctive features from the appeal against conviction and the approach to deal with the appeal against conviction is distinguishable from the appeal against acquittal because presumption of double innocence is attached in the latter. An order of acquittal can only be interfered when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which does not appear in the present case.

10. It is also well-settled law that if single circumstance creates doubt in the prosecution case, its benefit must be extended to the accused as a matter of right and in the present case there are so many circumstances to create doubt in the prosecution case, therefore, learned trial Court has rightly passed the impugned Judgment.

11. For the foregoing reasons, we are of the considered view that the impugned Judgment does not suffer from any legal infirmity and the appeal in hand merits no consideration, which is accordingly dismissed.

' Vide our short order dated 29-1-2013, this Criminal Acquittal Appeal was dismissed and above are the reasons thereof.