Sajjan vs Mehboob Ali and 2 others
This criminal appeal was filed by the complainant against the judgment of the Sessions Judge, Jamshoro, acquitting the respondents of charges under sections 324, 504 and 34 of the Pakistan Penal Code 1860 in relation to FIR No. 05 of 2018 registered at Police Station Kotri. The core legal question was whether the trial court's acquittal of unnamed accused persons, in the absence of an identification parade or description in the FIR, warranted interference by the appellate court. The Sindh High Court dismissed the appeal in limine, holding that the trial court's judgment was well-reasoned and free from misreading or non-reading of evidence. The court reaffirmed the principle that an order of acquittal carries a double presumption of innocence and will not be interfered with unless found to be perverse, arbitrary, or capricious, noting also that identification of unknown accused persons in court without a prior identification parade holds no evidentiary value.
- Whether an appellate court can interfere with an order of acquittal that is based on valid and cogent reasons?
- What is the evidentiary value of identifying an unknown accused for the first time in court without a prior identification parade?
- What is the standard of proof and scope of review in an appeal against an acquittal where a presumption of double innocence is attached?
- Section 324, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
ZULFIQAR ALI SANGI, J.---Through the captioned appeal, the appellant being complainant of FIR No. 05 of 2018 registered at Police Station Kotri, under sections 324, 504 and 34, P.P.C. approached this court to set aside the impugned judgment delivered on 18.02.2019 by learned Sessions Judge, Jamshoro, whereby the accused/respondents Nos. 1 and 2 were acquitted.
2. The facts of the prosecution case are that on 9.1.2018 at 1930 hours complainant Sajjan Ali Jessar lodged FIR at Police Station Kotri stating therein that on 8.1.2018 at 12:15 night when he along with his paternal nephew Muhammad Ramzan son of Malook Khan and maternal nephew Sajjan Khan son of Muhammad Soomar Jessar reached in front of his house on return from Eid-Mailadun Nabi Jashan in their neighbour, two persons on 125 Motorcycle came with open faces, took out pistols from their folds and asked "whether they are Jessars--"?; they replied them 'yes'. Both accused while abusing started straight fires with pistols upon them with intention to kill, one fire hit him on back side of neck and both accused ran away on same motorcycle. Thereafter his relatives brought him to hospital for treatment after obtaining letter from police station and thereafter he lodged FIR that two unknown persons, who, will be identified if seen again, with intention to commit Qatl-i-amd issued straight fires upon them, such investigation be carried out.
3. After necessary compliance, charge was framed to which accused pleaded not guilty and claimed trial. The prosecution to establish its case examined all material witnesses; thereafter, the trial court recorded statement of accused under section 342, Cr.P.C. and after hearing the parties recorded the impugned judgment of acquittal of accused persons with detailed reasons, by thrashing the depositions of prosecution witnesses.
4. I have heard learned counsel for the appellant and also carefully perused the impugned judgment and material available on record.
5. Counsel for the appellant at the outset submits that there was sufficient evidence brought by the prosecution on record but the trial court has acquitted the respondents without giving any cogent reasons although all prosecution witnesses had supported the case of the prosecution.
6. I have considered the submissions and perused the impugned judgment delivered by the trial court.
7. Admittedly respondent were neither nominated in the FIR nor any descriptions were given by the complainant. After arrest of respondent no any identification parade was held before any Magistrate. The honourable Supreme Court of Pakistan has held that the identification parade in court even after considerable delay after the incident, of a person produced in court cannot satisfy the requirement of law for proving identity of a culprit. See Asghar Ali's case (1992 SCM R 2088) and Sohail Abbas's case (PLD 2001 SC 546), but in the instant case as has been mentioned above no identification parade was even held.
8. The impugned judgment in my view is an elaborate, speaking one and does not suffer from misreading, non-reading or non-appraisal of evidence, hence it does not warrant interference of this court.
9. It is well settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. Reliance is placed on Inayat Ullah Butt v. Muhammad Javed and others (PLD 2003 SC 563).
10. Whatever stated above, I reached at the conclusion that the acquittal of respondents do not suffer from any illegality so as to call for my interference with the impugned judgment. According to golden principle of benefit of doubt, one substantial doubt is enough to acquit the accused. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and see no legal justification to disturb the same. Resultantly, the appeal having no merits for consideration is hereby dismissed in limine.