MAZHAR IQBAL Versus HAKIM ALI

ABDUL MAALIK GADDI, J.--- This criminal acquittal appeal has been filed by the appellant namely Mazhar Iqbal against the order of the learned Additional Sessions Judge Kotri dated 10.5.2012 in criminal Misc. application in Sessions Case No.160 of 2008 registered under sections 302, 324, 341, 427, 114, 148, 149, P.P.C. at Police Station Khanoth in Crime No.36 of 2008 whereby the learned trial court acquitted the respondent on an application filed by the respondent for his premature acquittal by holding/observing that no case has been made out against respondent, hence this criminal acquittal appeal has been filed on 15.6.2012.

2. Concisely, facts segregated from the FIR lodged by one Mazhar Iqbal on 28.10.2008 are that on the eventful day viz. 26.10.2008, he being store keeper, Super Coal Mine company along with engineer Haji Abid Hussain, Liaquat Ali, record clerk Javed, store keeper Nazeer Ahmed was proceeding to Hyderabad, in a Toyota Hilux bearing registration No.KM-9678 for purchasing some articles. The vehicle was being driven by Haji Abid Hussain. At about 10.40 p.m. when they reached near Andoo Jo Dhoro, found a truck and 10-suspicious, persons armed with weapons available on road. Out of them, on the head light of vehicle, they identified accused Pahar Khoso, Patang Khoso and Khanu Siyal armed with Kalashinkovs. Meanwhile accused Pahar along with remaining accused fired upon them with their respective weapons. Haji Abid Hussain, accelerated the vehicle, but he sustained fire arm injuries and the vehicle went out of control and stopped at some distance. They found Abid Hussain had sustained fire arm injuries on right arm pit, left leg and left arm. They also found Liaquat Ali sitting on front seat and also sustained fire arm injury on his right eye and died on spot. They communicated such information to Micro police picket and shifted Haji Abid Hussain in injured condition to Jamshoro hospital, but in the way he succumbed to injuries. They had also found a truck bearing Regd. No.QAG-2665, where Zahoor Ahmed was also lying in injured condition, having sustained fire arm injury on his leg, he was also shifted to hospital. After usual formalities and conducting post-mortem, he handed over the dead bodies to its relatives, consequently, lodged FIR that since, accused Pahar Khoso was on dispute over the landed property with the company, used to issue threats for dire consequences, demanding money and on refusal, assaulted upon complainant party, committed murder of Haji Abid Hussain and Liaquat Ali, caused fire arm injuries to Zahoor Ahmed Abro and also caused damage to the vehicle.

3. It appears from the record that this criminal acquittal appeal has been filed on 15.6.2012 and repeatedly notices were issued against private respondent but returned un-executed/un-served. It also appears from the record that on 30.11.2017, learned counsel for the appellant was directed to satisfy the court whether there is any probability of the judgment of acquittal being set aside, as such learned counsel for appellant has been heard.

4. It is contended by learned counsel for the appellant that judgment passed by the trial court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that the grounds on which the trial court proceeded to acquit the respondent is not supportable from the documents on record. He further submitted that the respondent has been directly charged and that the discrepancies/lacunas in the record are not so material on the basis of which respondent could be acquitted. During the course of arguments learned counsel for the appellant has reiterated the same facts and grounds which he has urged in the memo of appeal and prayed for setting aside the impugned order.

5. Learned APG submits that impugned order passed by the trial court is perfect on facts and law; that name of private respondent is not appearing in the FIR, statement under section 161, Cr.P.C. and statement under section 164, Cr.P.C.; that from the perusal of documentary so made available, that there is no cogent and convincing evidence that respondent is involved in crime, therefore, he prays that this appeal may be dismissed.

6. After hearing the learned counsel for the parties, we have gone through the evidence on record along with impugned order with able assistance of learned counsel for the parties and found that FIR is delayed by four days; that name of respondent is not appearing in the FIR; that prosecution witnesses in their statements under sections 161 and 164, Cr.P.C. have not implicated the respondent No.1 in this case; there are also other infirmities in, the case which have been highlighted by the trial court in its order of acquittal; for the sake of convenience it would be proper to reproduce the relevant portion of impugned order which reads as under:-

"It transpires that name of the applicant neither transpires in the FIR, nor in the 161 and 164, Cr.P.C. statements of the prosecution witnesses. The trial of the case has already been commenced against the co-accused, but evidence brought on record, prima facie shows that not a single prosecution witness has taken the name of applicant that he was either identified at the time of incident, or subsequently any evidence has been collected to link him with commission of alleged offence. In this regard, specific query has been made from the learned DDPP for the State and counsel for the complainant that what sort of evidence is available with the prosecution to connect him with the commission of offence to which learned counsel for the complainant pointed out that further statement of the complainant is recorded, in which name of applicant is taken. however, admitted that during course of trial, no such evidence has been brought on the record that either further statement of the complainant was recorded by the police on above mentioned date or same is produced in evidence, therefore, I am convinced with the contentions raised by learned defense counsel that such statement, if any cannot be termed to be piece of evidence against the applicant to connect him with the commission of the alleged offence, hence even, if trial of the case against the applicant is commenced, there is no probability of the accused being convicted for the alleged offence."

7. From the perusal of documents on record as well as the impugned order, it appears that the impugned order of the trial court is based upon sound reasons. Respondents/accused was acquitted by the trial court mainly on the ground that there was lack of evidence against the respondent on material points of the case. During the course of arguments, we have specifically asked the question from learned counsel for the appellant to point out/show any piece of evidence, which is not supportable from the record, no satisfactory answer was available with him. From the perusal of record it reveals that the trial court has rightly acquitted the respondent/accused through impugned order, which is neither perverse nor arbitrary. So far as the appeal against the acquittal is concerned after acquittal respondents/accused has/have acquired double presumption of innocence, this would interfere only if the judgment/order was arbitrary, capricious or against the record. But in this case, there were number of infirmities and impugned order of acquittal in our considered view did not suffer from any misreading and non-reading of documents on record. As regard to the consideration warranting the interference in appellant against acquittal and in appeal against conviction principle has been laid down by the Hon'ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo reported as 1993 SCMR 585, Hon'ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

"14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."

8. For what has been discussed above, we are of the considered view that the impugned order is based upon valid and sound reasons and is entirely in consonance with the law laid down by the honourable Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of documents on record or misconstruction of facts and law. Resultantly this Criminal Acquittal Appeal No.D-180 of 2012 is without merits and the same is dismissed along with listed application.

JK/M-159/Sindh Appeal dismissed.