UMAR SYED Versus SHER ALI
SYED MUHAMMAD FAROOQ SHAH, J.--- The appellant namely Umar Syed, by invoking the extraordinary constitutional jurisdiction of this Court Under Article 203-DD of the Constitution of Pakistan, read with section 417 of Criminal Procedure Code has preferred the captioned appeal against the impugned judgment, pronounced by the learned Judicial Magistrate Ist-Class, Illaqa Qazi, Tehsil Vari District Dir Bala on 13.10.2010, whereby the respondents Nos.1 to 7 have been acquitted of the charge for an offence punishable under section 379 Pakistan Penal Code read with section 14 of Offences Against Property (Enforcement Hudood) Ordinance, 1979. A prayer to set-aside the impugned judgment and to convict respondents Nos.1 to 7 according to law has also been made on the facts and grounds averred in the memo of appeal.
2. The case of prosecution in nutshell is that respondents Nos.1 to 7 charged by the learned Judicial Magistrate/Illaqa Qazi Vari, Dir Bala in case FIR No.132, dated 30.5.2009 under section 379, P.P.C. read with section 14 of Offences Against Property (Enforcement Hudood) Ordinance, 1979, registered at Police Station Vari. In written application/complaint, addressed to SHO concerned, the complainant Umar Syed alleged that his ancestral agricultural land was situated in Almosoma Kando Bogaray Sankkor, Hokhiyara Sankkor, Ado Khwar Sankkor and Soori Jagaam in the territorial limits of Nihag Dara, where he cultivated wheat crop and it was ready for harvesting. It is alleged that on 29.5.2009 from 6.00 a.m. (morning) till 7.00 p.m. (evening) the respondents reaped and took the said crop to their homes and caused him loss of Rs.70/80 thousands. By explaining the delay in lodging the report he stated that it has been caused due to fear from accused. He further alleged that the said incident was witnessed by PW.3 Fazal-e-Subhan son of Abdul Jabbar and Abdul Wahab son of Fazal-e-Subhan and many other inhabitants of the locality. He held liable the respondents of committing theft and financial loss to him. His written application/complaint was incorporated into FIR No.132, dated 30.5.2009, under section 379, P.P.C./14 of Offences Against Property (Enforcement Hudood) Ordinance, 1979 and the investigation was entrusted to PW.5 ASI Fazal-e-Karim Khan who proceeded to the place of occurrence and prepared the sketch (Ex.PW5/2) and recovered few plants of wheat from place of occurrence vide memo of recovery (Ex.PW5/3); recorded statements of the witnesses and then handed over the case file to the concerned SHO for further probe, who submitted final report/challan under section 173, Criminal Procedure Code.
3. Trial commenced from framing of charge on 29.3.2010 for an offence punishable under section 379, P.P.C. read with section 14 of Offences Against Property (Enforcement Hudood) Ordinance, 1979, to which the accused did not plead guilty and claimed trial. To prove its case, the prosecution produced all material witnesses. Depositions of PW.2 complainant Umar Syed, PW.3 Fazal-e-Subhan and his son PW.4 Abdul Wahab, PW.5 ASI Fazal-e-Karim Khan and lastly the formal evidence of PW.6 Police constable Mian Syed Ali Shah who was entrusted to execute NBW of arrest against the accused, were recorded by the trial court. On conclusion of prosecution evidence, the statements of the accused persons under section 342 of Criminal Procedure Code, were recorded and after affording fair opportunity of hearing to both parties, the impugned judgment was reduced in writing and pronounced on 13.10.2010. A perusal of record reflects that entire court proceeding was conducted in Urdu language.
4. Arguments advanced by Mr. Muhammad Zafran, learned counsel for the appellant/complainant; Mr. Maazullah Barkandai Advocate representing the respondents and the learned State Counsel are considered. We have also carefully scanned the impugned judgment in light of the evidence available on record.
5. At the very outset, learned counsel representing the appellant/complainant argued that while recording the impugned judgment, the trial court has seriously erred to consider relevant portion of cross-examination of the complainant and his two witnesses by ignoring the evidence adduced in examination-in-chief, in which prosecution witnesses have fully corroborated the prosecution version. It need not to be reiterated that the trial court was obliged to thoroughly examine the evidence and to appreciate the same according to law.
6. It shall be advantageous to reproduce hereinbelow the contradictory parts of the statements of material witnesses of prosecution witnesses, highlighted by the learned counsel for the respondents/ accused, creating reasonable doubt in the prosecution story:-
He further stated in Cross-Examination:
He further stated in Cross-Examination:
7. Insofar as contention of the learned counsel for the appellant/complainant that impugned judgment pronounced by the trial court is based on cross-examination of the prosecution witnesses without considering the examination-in-chief is concerned, it need to be iterated that cross examination is the great legal engine invented for the discovery of truth. It is well settled principle of law that opportunity to cross examine contemplated by the law must be real, fair and reasonable as the cross-examination is not an empty formality but a valuable right conferred by the statute, more particularly, under section 132(2) of Qanun-e- Shahadat Order, 1984 and best method for ascertaining the truth from the mouth of a witness. The right of cross-examination has immemorial been held to be particularly in criminal cases a valuable right to the accused which cannot be brushed aside as it is a weapon which an accused person or an advocate on his behalf can wield for the purpose of test the veracity of the statement made by a witness. Obviously, purpose of cross examination is to assist the court in bringing truth to light by disclosing and clarifying the matters which a witness could suppress or conceal either due to bitter acrimonious relations/animosity or for the sake of greediness, etc. Suffice it to say that cross examination of prosecution witnesses reproduced supra, creates reasonable doubt in a prudent mind about the guilt of the accused which cannot be termed misreading of evidence amounting to miscarriage of justice.
8. As per prosecution story, accused had taken away dishonestly or forcibly the standing wheat crop by reaping its plants with chaff worth Rs.70/80 thousands which has not been recovered by the police. However, ground "K" of memo of appeal reads that, "the recovery has been affected from the possession of the accused/ respondents but the same has been ignored by the learned trial court". When confronted, the learned counsel for the appellant clarified that such ground has wrongly been mentioned though said stolen crop had never been recovered; further contended that in the year 2009 when alleged incident had taken place, the approximate weight of the stolen wheat was 70/80 mounds. It is also an admitted fact that there is nothing on record to show that the Investigating Officer recovered or even tried/attempted to recover the said stolen wheat with or without chaff. Besides, it is not the case of the prosecution that the accused person separated the wheat grain from chaff through thrasher/harvester machine or by applying local old method for separating huge quantity of wheat from chaff.
9. Conversely, learned counsel for the respondents as well as the learned State counsel vehemently supported the impugned judgment by arguing that attending facts and circumstances as well as relevant evidence of prosecution witnesses transpires that the trial court has correctly extended the benefit of doubt in favour of the accused, leading towards the real doubt sufficient to acquit them as it is now settled proposition of law that the appellate court cannot frequently interfere with the acquittal merely because reappraisal of evidence it comes to the conclusion different from that of the trial court. The presumption of innocence of accused after acquittal is double. To support his contention, Learned counsel for the respondents placed his reliance on 2017 SCMR 1710 (Anwar Begum v. Akhtar Hussain alias Kaka) In cited ruling, the dictum as laid down by the Hon'ble apex Court is that, "however accused was innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubled---Strong and cogent reasons were required to dislodge such presumption".
10. Insofar as, the scope to disturb a judgment of acquittal is concerned, we have already fortified our views in judgments delivered earlier by us in likewise appeals against acquittal, more particularly, in Criminal Appeal No.65/P of 2001, decided on 1.10.2018 and Criminal Appeal No.41/P of 2005, decided on 2.10.2018 by us while placing reliance on the case law in such context, expounded in AIR 1934 PC 227 (2) (Sheo Swarup and others v. King Emperor), (ii) PLD 1985 SC 11 (Ghulam Sikandar and another v. Mamraz Khan and others), (iii) PLD 1977 SC 529 (Fazalur Rehman v. Abdul Ghani and another), (iv) PLD 2011 SC 554 (The State and others v. Abdul Khaliq and others), (v) PLD 2010 SC 632 (Azhar Ali v. The State), (vi) 2002 SCMR 261 (Khadim Hussain v. Manzoor Hussain Shah and 3 others), (vii) 2002 SCMR 261 (Khadim Hussain v. Manzoor Hussain Shah and 3 others) (viii) 2013 PCr.LJ 374 (Fateh Muhammad Kobhar v. Sabzal and 4 others), (ix) 2011 PCr.LJ 856 (FSC) (Mst. Salma Bibi v. Niaz alias Billa and 2 others), (x) PLD 1994 SC 31, (Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another), (xi) 2010 SCMR 1592 (Qurban Hussain alias Ashiq v. The State), (xii) 2017 SCMR 633 (Intizar Hussain v. Hamza Ameer and others). In the case of Intizar Hussain v Hamza Amir and others, reported in 2017 SCMR 633, the Hon'ble Supreme Court held;-
11. It is pertinent to mention here that the learned trial court after evaluation of evidence has correctly observed that the prosecution has miserably failed to prove its case against the Respondents/accused beyond the shadow of reasonable doubt. It is now settled proposition of law that a single circumstance creates a reasonable doubt in a prudent mind about the guilt of accused; entitle the accused to such benefit not as a matter of grace but as a matter of right. Article 2(4) of the Qanun-e-Shahadat Order, 1984 containing conclusive duty upon prosecution to prove its case beyond any shadow of doubt. Admittedly, conviction cannot be based on high probabilities and suspicion cannot take the place of proof, therefore, no legal sanctity is attached to the FIR lodged after inordinate delay merely on disclosure of some unknown source or information.
12. The upshot of the aforementioned discussion is that the impugned judgment does not suffer from misreading or non-appraisal of evidence or lack of appreciation of material evidence or reception of evidence illegally or jurisdictional defects or evidence of material nature produced by the prosecution were not recorded or the acquittal order on the face of it is contradictory or/and the order of acquittal was passed without affording opportunity to the prosecution by violating principles governing the appreciation of evidence or that the acquittal judgment is based upon surmises, suppositions and conjectures and the acquittal is based upon reasons which do not appeal to a reasonable mind. For the sake of convenience the settled criteria to entertain the appeal against acquittal as laid down by the Superior Courts is that if two different views or positions of the case and the view taken by the trial court can be justified on the basis of facts or on principle of law, then the order of acquittal is not interfered with.
13. Extraordinary remedy of an appeal against an acquittal is quite different from an appeal preferred against the findings of conviction and sentence. Obviously, the appellate jurisdiction under section 417, Cr.P.C. can be exercised by this Court if gross injustice has been done in the administration of criminal justice, more particularly, wherein, findings given by trial Court are perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by trial Court are wholly artificial. Scope of appeal against acquittal of accused is considerably limited, because presumption of double innocence of the accused is attached to the order of acquittal as held in 2002 SCMR 713. Order of acquittal passed by trial Court which is based on correct appreciation of evidence would not warrant interference in appeal. Accused earns double presumption of innocence with the acquittal; first, initially that till found guilty he has to be considered innocent; and second, that after his acquittal by trial Court further confirmed the presumption of innocence as held in 2012 PCr.LJ 1699 (FSC) + 2013 YLR 223 + 2011 PCr.LJ 1234. In 2013 PCr.LJ 374, it was held that appellate court would not interfere, unless misreading of evidence, violation of legal provisions, jurisdictional defect; acquittal order on face of it being contrary was established (2013 PCr.LJ 345 and PLJ 2009 FSC 284). The appellate Court by exercising its powers under section 417, Cr.P.C, could interfere only if the order of acquittal is based on misreading, non-appraisal of evidence or/was speculative, artificial, arbitrary and foolish as held in 2008 MLD 1007. In 2002 MLD 293 and 2000 YLR 190, the dicta laid down is that the order of acquittal passed by the trial Court being balanced and well reasoned, would hardly call for interference of the appellate Court in appeal and similarly the appellate Court should not disturb acquittal if main grounds on which trial Court had based its acquittal order are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished.
13(sic.) In view of above detailed discussion, more particularly, keeping in mind consistent view of superior courts on the subject, we reached at the irresistible conclusion that the captioned appeal against the impugned judgment, having no merits for consideration has been dismissed by a short order pronounced in court and these are the reasons for our short order of even date.
JK/24/FSC Appeal dismissed.