Criminal Petition No, 12-Q/2008 Javed Iqbal, J.--This Criminal Petition for leave to appeal under Article 185 (3) of the Constitution of Islamic Republic of Pakistan is directed against the judgment dated 9.6.2008 whereby Criminal Acquittal Appeal preferred on behalf of petitioner has been dismissed and the judgment dated 18.11.2006 passed by learned Judicial Magistrate, Muslim Bagh acquitting respondents has been kept intact.
2. The facts of the case as enumerated in the judgment impugned are to the effect that "on 22.10.2006 a case under Sections 447, 427, 147, 148 and 149 P.P.C. was registered in levies station, Kan Mehterzai on the report of appellant, wherein; it was alleged that private respondents along with absconding accused cut down his fruit bearing trees, thereby; causing loss to him. After usual investigation challan was submitted before Judicial Magistrate, who read over the charge to the respondents, to which they pleaded not guilty. Where after, 'prosecution in order to substantiate the accusation produced five witnesses. At the end of prosecution evidence respondents were examined under Section 342 Cr.P.C. wherein they denied all the allegations. They neither opted to record statements on oath nor produced any witness in defence". The learned trial Court on conclusion of the trial acquitted the respondents. Being aggrieved the Criminal Acquittal Appeal was preferred before the High Court which has been rejected vide judgment impugned, hence this petition.
3. Mr. Jamal Khan Mandokhail, learned ASC entered appearance on behalf of petitioner and contended strenuously that the judgment impugned passed by the learned Division Bench of High Court of Balochistan is not in accordance with the evidence which has come on record and besides that the evidence has not been appreciated in its true perspective and conclusion drawn is not inconsonance with the evidence led in support of accusation. It is next contended that various glaring illegalities apparent in the judgment of learned trial Court were not taken into consideration which resulted in serious miscarriage of justice. It is next contended that the statements of Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) have been discarded merely on the ground of interse relationship as admittedly they are sons of complainant but have no motive whatsoever to falsely implicate the respondents and as such they can not be labeled as interested witnesses and hence their statements should have been taken into consideration. It is also contended that though civil litigation is pending between the parties yet it cannot he made a sole ground for discarding the statements of prosecution witnesses who stood firm to the test of cross-examination and nothing beneficial could be extracted rendering any assistance to the respondents. It is also contended that no glaring contradictions could be pointed out by learned Division Bench in the judgment impugned which is indicative of the fact that the statements of prosecution witnesses were free from any doubt and should have been relied upon. It is also contended that acquittal cannot be based merely on conjectural presumptions but on the well settled principles of law which have been ignored by learned Division Bench.
4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of evidence which has come on record and besides that the judgment passed by the learned Judicial Magistrate as well as the judgment impugned were perused carefully. Having examined the statements of Haji Amanullah (PW-1), Muhammad Shabbir (PW-2), Shah Khalid (PW-3) and Abdul Haleem (PW-4) with utmost care, we are not hesitant to hold that it would be unsafe to punish the respondents without having any independent corroboration which is absolutely lacking in this case. It is an admitted feature of the case that Muhammad Shabbir (PW-2) and Shah Khalid (PW- 3) are, real sons of Haji Amanullah (PW-1) who is complainant in the case got lodged against the respondents. We have carefully perused the statements of Haji Amanullah (PW-1/complainant) which is based on the information communicated by Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) and being hearsay it cannot be taken into consideration as admittedly Haji Amanullah (PW-1/complainant) was not present at the time of occurrence. We have also observed that Haji Amanullah (PW-1/complainant) could not mention even the Khasra and Khavet number of the garden in question from where the trees were cut down. It is also to be noted that he could not mention even the presence of Muhammad Shabbir (PW-2) and Shah Khalid, (PW-3) in the garden where the occurrence had taken place. He has also admitted that civil litigation was pending between the parties. While answering one of the questions during cross-examination he also admitted that respondents Munir Ahmad and Haji Muhibullah were shifted to Karachi during winter but came back for a day or so to commit the alleged offences. A careful analysis of the statement of Haji Amanullah (PW-1) would indicate that he was not present at the place of occurrence and besides that civil litigation is pending between the parties and more so tie failed to mention about the presence of Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) in his complaint, hence it has rightly been discarded. We have also examined the statement of Muhammad Shabbir (PW-2) who mentioned in a categoric manner that offenders were about 20 in numbers and Munir Ahmad was carrying Kalashnikov while Wali Muhammad, Sardar Muhammad and Gul Muhammad were carrying saw. He also stated that Muhibullah, Mujeebullah, Munir Ahmad and Sardar Muhammad were identified from a distance of more than 50 feet as according to him when they reached at the distance of 40/50 feet the accused persons managed their escape good from the place of occurrence. He also stated that about 110 trees were cut down. A careful scrutiny of his deposition would reveal that some glaring dishonest improvements have been made. For instance he did not mention in his. statement got recorded under Section 161 Cr.P.C. that Munir Ahmad was having a Kalashnikov and besides that he did not name any other accused person. He also admitted that he did not mention in his statement got recorded under Section 161 Cr.P.C. that the distance of 40 and 50 feet from where the accused persons were identified. In our considered view identification from a distance of more than 50 feet in a moonlit night is impossible especially when the offenders were under the shadow of trees. It is worth mentioning that Muhammad Shabbir (PW-2) has also admitted that civil litigation was pending between the parties. The statement of Shah Khalid (PW- 3) has been examined who stated that accused persons were 18 in numbers who cut down the trees and some of them were carrying Kalashnikov while a few were having saw. He did not mention that Munir Ahmad was carrying Kalashnikov and besides that he failed to point out that who were carrying the saw and by whom the trees in question were cut down. According to him 110 trees were cut down which were never taken into possession by the prosecution. Even otherwise it is not possible to cut down 110 trees having the age of 5/10 years within a couple of hours. Shah Khalid (PW-3) has also admitted that civil litigation was pending between the parties. Abdul Haleem (PW-4) is a Qanoongo from Revenue Department who got his statement recorded but failed to mention the Khasra and Khatuni numbers of the garden in question and admitted that garden in question from where the alleged trees were cut down was shown by the complainant.
After having gone through the entire evidence as mentioned herein above which is vague, sketchy and partisan has rightly been discarded on the basis whereof the question of any conviction does not arise. It is well settled by now that in an appeal the Court would not interfere with acquittal merely because re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous". Ali Sher v. the state and 3 others (PLD 1980 SC 317), State through Advocate General NWFP, Peshawar v. Amir Nazar and others (PLD 1981 SC 286), Mst. Habibun Nisa alias Bivi v. Zafar Iqbal and others (1981 SCM R 95), Nazir Ahmad v. Muhammad Din etc (1981 SCM R 415), Capt. Mahmood Jan v. Madad Khan and another (1981 SCM R 474), Ahmad v. Crown (PLD 1951 FC 107), Fateh Muhammad v. Bagoo (PLD 1960 SC 286), Abdul Majid v. Superintendent and Remembrance of Legal Affairs, Government of East Pakistan (PLD 1964 SC 422), Feroze Khan v. Capt. Ghulam Nabi (PLD 1966 SC 424), Usman Khan v. The State (PLD 1969 SC 293), Noora and another v. The State (PLD 1973 SC 469), Abdul Rashid v. Umid Ali etc (PLD 1975 SC 227). Taj Muhammad v. Muhammad Yousaf etc (PLD 1976 SC 234), Farid v. Aslant (PLD 1977 SC 4), Fazalur Rehman v. Abdul Ghani (PLD 1977 SC 529). Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).
5. On the touchstone of the criterion as mentioned herein above this petition for leave to appeal has been examined and we feel that it is neither a case of misreading of evidence nor non-reading of evidence but on the contrary the evidence has been appreciated in its true perspective and in accordance with the principles laid down by this Court qua the appreciation of evidence. No illegality or infirmity could be pointed out warranting interference in the judgment impugned which being unexceptionable cannot be reversed without convincing and cogent reasoning which is badly lacking.
6. In the light of what has been discussed herein above the petition being devoid of merits is dismissed and leave refused.
Criminal Petition No, 13-Q/2008.
The arguments of Mr. Jamal Khan Mandokhail, learned ASC on behalf of petitioner advanced in Criminal Petition No, 13-Q/2008 have been examined in the light of relevant record of the case. It is alleged that after cutting down the trees the respondents alongwith absconder/accused caused serious damage to the transformer by means of firing. A careful analysis of the entire evidence led in support of acquisition being unreliable, partisan, vague and sketchy has rightly been discarded by the learned trial and appellate Courts. The statement of Shah Muhammad hardly renders any assistance to the case of complainant as he could not identify the culprits except Hazrat Jan as they were with muffled faces. It is, however, to be noted that statement of Shah Sanam (PW-4) cannot be taken into consideration not being grandson of the petitioner but for the simple reason that civil litigation is pending between the parties and every effort has been made to implicate them on one or the other pretext in different cases. We are conscious of the fact that merely on the ground of intense relationship the statement of a witness cannot be discarded but here this principle would not be applicable because civil litigation is pending and besides that the respondents were acquitted in case got registered against them by the complainant for cutting down the trees and petition for leave to appeal was also dismissed. The learned Division Bench has examined the evidence in depth and the conclusion arrived at being unexceptionable and in accordance with the settled norms of justice does not warrant interference. The operative portion of the judgment impugned is reproduced herein below for ready reference:-- "We have carefully considered the contentions put forth by the parties learned counsel and have also gone through the impugned judgment as well as evidence on record. At the very outset, we may observe that order of acquittal is not liable to interference merely because on re-appraisal of evidence this Court may come to a different conclusion than that of trial Court provided both conclusions are plausible in the particular facts and circumstances of the case. In the instant case prosecution alleged that private respondents along with absconding accused cut down-fruit bearing trees of the appellant and in the process they also caused damaged to transformer by means of firing. Only independent witness produced was Shah Muhammad who had not implicated the respondent in commission of offence as according to him he could not identify the culprits except Hazrat Jan as they had muffled their faces. In view of his categoric statement conviction on the basis of sole testimony of PW-4 Shah Sanam cannot be sustained as admittedly he is grandson of appellant and interested witness due to civil dispute going on between the parties. Similarly; report of PW-5 in- absence of seizure of damaged articles and alleged cut down trees is of no consequences. For the foregoing reasons; in our considered view, prosecution failed to prove guilt of respondents, as such; they were rightly acquitted of the charge. The appeal being devoid of any merits is dismissed accordingly'.
7. The learned ASC could not point out any illegality or infirmity on the basis whereof judgment impugned could be reversed. In the light of what has been discussed herein above this petition is also dismissed being devoid of merits and leave refused.