By this single judgment, I propose to dispose of Criminal Appeal No. 178/98 (State through Advocate General vs. Pir Muhammad and two others and Criminal Appeal No. 85/98 Lakson Tobacco Company Limited vs Pir Muhammad and others, as both these arise out of one and the same impugned judgment dated 14.2.1998, passed by learned Additional Sessions Judge//zafi Zilla Qazi, Malakand.
2. It may be stated here at the outset that vide order dated 27.11.1998 of this Court, Criminal. Appeal No. 178/98, was dismissed qua Pir Muhammad and Fazal Ghafoor respondents and was admitted to the extent of Haji Ghani respondent. Criminal Appeal No 85/98, titled Lakson Tobacco Company Limited, Mardan, relating to respondents Pir Muhammad and Fazal Ghafoor stands dismissed.
Presently, I am seized of Criminal Appeal No. 178/98 against Haji Ghani Accused-respondent.
3. The prosecution story in brief is, that on 6.11.197, Muhammad r lhirn Khan, Assistant Political Agent, Dargai, was informed that fake Red and White Cigarette would be smuggled in Truck No. GLT-8214 from Swat to Peshawar. Accordingly, a police party headed by HC Amir Alam conducted a Waka Bandi' near Dargai `phathak'. In the meanwhile, said truck driven by Pir Muhammad was sighted coming from Swat side. The truck was stopped. The search of the truck led to recovery of 280 cartons of fake cigarette. Each carton contained 50 `dandas' of cigarette. The accused was arrested at the spot, the truck was taken into possession and a case was registered through `murasila', incorporated into FIR No. 213 dated 6.11.1997 under Sections 419/468/482/286/487 PPC, Police Station, Dargai Malakand.
4. After completion of investigation challan was submitted against the accused-respondents, to which they pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, examined five witnesses in all, namely, Ali Muhaminad, Adil Akbar Khan, EAC, Muhammad Karim, Amir Alam and Khurshid Khan, Manager. The accused- respondents in their statements recorded under Section 342 Cr.P.C. repudiated the prosecution allegations and claimed to have been charged falsely. They did not opt to produce evidence in defence nor give statements on oath.
6. At the conclusion of trial, Mr. Muhammad Tariq Wali, Additional Sessions Judge/Izafi Zilla Qazi, Malakand at Dargai, extended benefit of doubt to accused-respondents and acquitted them per the impugned judgment as noted above.
7. I have heard at length Mr. Aminur Rehman, Advocate appearing on behalf of the State and Mr. Tariq Javed, Advocate for the acquitted accused and perused the record of the case with their assistance.
8. Learned counsel for the appellant mainly contended that the trial Court could not appreciate the evidence on the file in its true perspective; that the Court has failed to give cogent and convincing reasons while acquitting the accused-respondents and that minor and inconsequential discrepancies in the statements of PWs have been taken into consideration and made basis of the impugned judgment which has resulted in complete failure of justice.
9. Contrarily, learned counsel for the accused-respondents, controverted the arguments of learned appellant's counsel and attempted to argue that the evidence on record has been properly appreciated and the learned trial Court arrived at correct conclusion, which cannot be allowed to be interfered with by this Court in its jurisdiction under Section 417 Cr.P.C. He also contended that the delay of seven days in recording the confessional statement clearly indicates that the accused-respondent had not made a confession and it was either extracted from him or he was coerced into making the same or some inducement was offered to him for making the confession.
10.Having concentrated on the arguments of learned counsel for the parties in the light of available record, I am of the view that the conclusion drawn by the trial Judge is neither arbitrary, fanciful nor artificial in nature. The judgment returned by the Trial Court is a fair judgment, based On proper, just and legal appreciation of the evidence on record. Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. It has not been demonstrated that some material evidence was not taken into consideration by the trial Court, which had caused miscarriage of justice. Needless to emphasize that an acquittal judgment is not to be interfered with and due consideration and weight is to be attached to the A observations made in the acquittal judgment. The view and approach for dealing with the appeal against the conviction would be different and distinguishable from the appeal against acquittal because of presumption of double innocence of the accused is attached to the order of acquittal. If an authority is, needed on the point, reference can be made to State through the Advocate General, NWFP, Peshawar vs. Habib (PLD 1996 Peshawar 43), wherein it was observed:-- "It will not be out of place to mention here that it is now well settled that where, in acquitting an accused, the trial Court has not violated any rule of law and has not ignored any material fact, while appreciating the evidence on record, its inference did not suffer from any legal or factual infirmity and that he has correctly commented on the credibility of the witnesses and has evaluated the circumstantial evidence, in detail, then in that case there is no justification for us to interfere with the order of acquittal even if a different view could be taken, though it is not so possible in this case. The fact remains that it is for the prosecution to prove its case against the accused beyond a shadow of reasonable doubt and that the prosecution cannot take benefit from the weakness of the defence plea."
11. The accused-respondent was arrested on 10.11.1997. His confessional statement was got recorded on 17.11.1997. Learned trial Judge has discarded the confessional statement of accused- respondent for valid reasons and it is not possible for me to take a different view. Syed Azeem Shah vs. The State (PLD 1987 Quetta 96) and Wdli Muhammad alias Nandhoo vs. the State).
'In view of the above, finding no force in this appeal, I dismiss the same and maintain the impugned order of acquittal. The accused-respondent is on bail, he is discharged from the obligation of his bail bond.