ATTA MUHAMMAD vs AURANGZAIB and 2 others

ABDUL HAMEED BALOCH, J. This judgment disposes of Criminal Acquittal Appeal No. 222 of 2016 filed by the appellant, Atta Muhammad son of Musa Khan, against the judgment dated 16th May, 2016 hereinafter referred to as, ("the impugned judgment" ) passed by the learned Additional Sessions Judge-III, Quetta, hereinafter referred to as, ( "the trial Court" ), whereby the accused/ respondent Nos. 1 and 2 were acquitted of the charge.

2. Facts of the case are that on 22nd July 2012, the appellant/complainant lodged FIR No.92 of 2012 at Police Station Shalkot, Quetta under Sections 302, 34, P.P.C., stating therein that on the aforesaid date the complainant was at his home, when he heard noises, whereupon he and his son Muhammad Rafique come out and found his neighbors Aurangzaib, Muhammad Akhb ar, Jahanzaib and Shahzaib were quarrelling with his brother in law. He further alleged that they went ahead to pacify the situation but accused persons along with their companion held him and his brother in law, while accused Jahanzaib stabbed his son Muhammad Rafique with dragger and gave him several blows on his body .

3. In pursuance of above FIR, investigation was entrusted to PW-8 Ghulam Muhammad S.I, who during investigation, inspected the place of incident; prepared site map; recorded the statement of witnesses under Section 161, Cr.P.C; arrested the accused/respondents Nos.1 and 2; on completion of investigation submitted challan before the trial Court.

4. At the trial, the accused/ respondents pleaded not guilty , claimed trial. The prosecution produced as many as eight (8) witnesses. The accused/ respon dents were examined under Section 342, Cr.P.C. However , neither they recorded their statement on oath under Section 340(2), Cr.P.C. nor produced any evidence in their defense. On conclusion of trial and hearing the arguments, the trial Court vide impugned judgment acquitted the accused/ respondents of the charge. Whereafter instant Criminal Acquittal Appeal has been filed.

5. Learned counsel for the appellant contended that the acquittal of the respondents Nos.1 and 2 is perverse and contrary to the material available on record; that the impugned judgment is result of mis-reading and non-reading of the material available on record; that confi-dence inspiring evidence was produced by prosecution against the respondents, but the same was wrongly discarded; that the statement of all the prosecution witnesses corroborated with each other on all material count, but the same was not considered by the trial Court.

6. Heard the learned counsel for the appellant and perused the available record. Record reveals that the case of prosecution rests on ocular account, recovery of dragger and medical evidence. From the perusal of statements of ocular witnesses none of the witnesses attributed any injury to accused/ respondents. All the prosecution witnesses admitted that the accused/respondents were empty handed. The PW-2 stated that his statement was recorded on 22.07.2012 at 10.00 A.M. at the place of occurrence. PW-4 replied on query that his statement was recorded at the house of complainant. Similarly PW-8 Investigating Officer in his cross-examination stated that they had reached the spot at 1.00 AM (night), recorded the statements of witnesses, although all the witnesses claimed to be ocular witness are closely relatives and residing together , narrated dif ferent stories.

7. All the ocular witnesses are close relatives, despite as per witnesses that the independent persons were also present on the spot, although it is not mandatory for prosecution to record the statement of independent witness, but to avoid the false implication and safe administration of justice the prosecution should have recorded the statement of independent witness. The entire prosecution would establish the fact that although the accused/respondents were present at the relevant time, mere presence at the spot by itself is not connect to crime.

The occurrence was not premeditated, suddenly took place. The prosecution has failed to establish through incriminating evidence with regard to common intention of the accused/respon dents to commit the murder of Muhammad Rafique. Reliance in this regard is placed on the case of Muhammad Ameer v. Muhammad Imran 2017 MLD 1263 . Relevant portion whereof is reproduce as under;- "As a matter of fact, the learned trial Court acted strictly in accordance with law and the principles regulating the safe administration of criminal justice."

8. The learned trial Court has rightly discarded the statements of prosecution witnesses and acquitted the accused/respondents on benefit of doubt. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal. Reliance in this regard is placed on the case of Zaheer Sadiq v. Muhammad Ijaz 2017 SCMR 2007 . Relevant portion whereof is reproduced as under;- "In the wake of this contradictory and self-destructing primary evidence, we have observed that learned High Court has rightly acquitted respondent No.1. Even otherwise, it is well settled by now that in criminal cases every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such presumption. The reasons given by the learned High Court, in the impugned judgment, have not been found by us to be arbitrary , fanciful or capricious warranting interference by this Court."

9. The reappraisal of entire prosecution evidence would reflect that prosecution has absolutely failed to bring on record any evidence to establish the charge against the accused/respondents. The entire evidence so produce by the prosecution do not connect the accused/respondents in any manner , however , the prosecution case against the respondents, are highly doubtful and the trial court after proper appraisal of material available on record has rightly acquitted the accused/respondents.

The prosecution has miserably failed to bring home charge against the accused/ respondents, there-fore, we see not merit in the instant case. The order of acquittal passed by the trial Court is neither arbitrary nor contrary to the evidence brought on record, warranting interference by this Court. For the above reasons, the appeal is dismissed in limine.