ASHIQUE ALI vs HABIBUR REHMAN and another

ORDER

SYED MUHAMMAD FAROOQ SHAH, J.---The captioned Criminal Acquittal Appeal is directed by the complainant/appellant Ashiq Ali against the impugned order dated 2-11-2012, whereby the respondent No.1 was acquitted under section 265-K, Cr.P.C.

2. Mr. Muhammad Hashim Leghari, learned counsel for the appellant at the outset submitted that earlier application filed under section 265-K, Cr.P.C. Before the learned Assistant Sessions Judge was dismissed and subsequently the Revision Application was not only entertained by the Additional Sessions Judge, Badin but the accused/respondent No.1 was acquitted under section 265-K, Cr.P.C. According to learned counsel, both Courts are having the similar powers. On merits of the case, learned counsel submits that specific role of abetment under section 109, Cr.P.C. Was assigned to the accused/respondent No.1, on whose instigation, the co-accused had committed the alleged offence. The similar legal point was earlier agitated before this court by the learned counsel which depicts from the order sheet dated 26-11-2012 and 22-1-2014.

3. Conversely, Mr. Faqir Rehmatullah Hisbani i, learned counsel for the respondent No. 1/Accused submitted that while entertaining the Revision Application, the learned Additional Session Judge has not committed any illegality having jurisdiction. Learned counsel stated that he is supported with the case-law reported as Abdul Raheem v. Abdul Rauf and another (1983 PCr.LJ 1390) and Parvez alias Puttar v. The State (1990 PCr.LJ 956). In a Division Bench citation reported as 1983 PCr.LJ 1390, it was held that the Court of an Assistant Sessions Judge is inferior to the Court of a Sessions Judge, whether it be presided over by the Sessions Judge himself, or, by an Additional Sessions Judge. In 1990 PCr.LJ 950, where bail application was rejected by Assistant Sessions Judge and Additional Sessions Judge refused to entertain second bail application as not maintainable, without fresh grounds because the Assistant Sessions Judge had derived his jurisdiction as a Court of Session, it was held that Assistant Sessions Judge belongs to different category of Judicial Officers and for all practical purposes, exercises powers which vest with Magistrate under section 30, Cr.P.C. And while exercising powers under section 497, Cr.P.C., acts as a Court of original jurisdiction, subordinate to Sessions Judge, therefore, Sessions Judge should therefore, entertain and decide a bail application after the same was dismissed by the Assistant Sessions Judge as the Court of inferior jurisdiction. In the case of Askar Ali and others v. The State (PLD 1959 SC 251) it was held that "An Assistant Sessions Judge belongs to a distinct category of Judicial Officers from that constituted by Additional Sessions Judges."

4. Keeping in view the dictum as laid down in the aforementioned citations, there is no cavil to the proposition that an Assistant Sessions Judge is an inferior Court like any other Criminal Court of a Magistrate and the Sessions Judge/Additional Sessions Judge can entertain and decide the revision or bail application after the same are dismissed by an Assistant Sessions Judge.

5. On merits of the case, the learned counsel for the appellant did not much emphasize, as it is an admitted position that no specific role in commission of the offence was assigned to the respondent No. 1 /accused except abetment. Moreso, the following observation made in the penultimate paragraph of the impugned order, has not been specifically challenged by the learned counsel for the appellant, which was sufficient to acquit the accused under section 265-K, Cr.P.C. As apparently there was no probability of his being convicted of any offence even after conclusion of the trial:- "From the perusal of the record, it reveals that the petitioner is alleged to have abetted the offence. He was let of by police during investigation and his name was kept in column No.2 of the challan sheet. From the perusal of evidence/deposition produced by the petitioner along with this petition, it reveals that P. W. Complainant Ashique Ali during his cross-examination has admitted that accused Habib Rehman was not present at spot. Mashir Ali Muhammad states that police only obtained one signature at police station. P. W. Gamblo who is alleged eyewitness of the incident has frankly admitted that he had not seen the fight. Therefore, I am of the view that there is no evidence against the present petitioner on record and if the case proceeds there is no likelihood of the petitioner being convicted. The charge against the petitioner has become groundless."

6. It is not out of context to mention here that in number of appeals against acquittal, necessary clarification has already been made by me .That appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal because presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order (1998 PCr.LJ 1576, 1985 PCr.LJ 2973-1991 SCMR 2220-1993 SCMR 28, 1985 PCr.LJ 457, PLD 1966 Supreme Court 424). While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts whereby accused were exonerated from the commission of crime (1998 SCMR 1281). In 1997 PCr.LJ 477, it is held that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill the lacuna appearing in the evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

7. Whatever mentioned above, the instant Criminal Acquittal Appeal having no merits for consideration is hereby dismissed.