SYED ZAKIR HUSSAIN, J.---This acquittal appeal has been preferred by the State, the appellant, against the judgment dated 2-8-1995, delivered by the learned Special Court, STA, Larkana/Sukkur Divisions, Shikarpur, in Special Case No, 100 of 1994, State v. Muhammad Juman and another, pertaining to the trial of the Crime No,60 of 1991 of Police Station Taluka, Larkana, under sections 302, 307, 149, P.P.C., whereby the learned Special Judge of the said court disposed of the case by way of the said judgment in acquittal of the charge-sheeted persons including the respondents Nos. 1 and 2, who faced the trial of the case referred to above. The appellant has prayed for setting aside of the impugned findings and for order of conviction for the offences the said respondents had stood charged with in the said case, on the facts and grounds mentioned in the memo. of appeal.
2. The necessary facts of the case, are that the complainant Muhammad Farooq lodged the F.I.R.
No, 60 of 1991 with the Police Station Taluka, Larkana, against the nominated accused persons, the respondents Nos. 1 and 2, and others on 26-5-1991, at about 9-15 a.m., to the effect that on that very day while he had left his village together with other persons in the early hours of the day on two motorbikes respectively for their destination and when they reached the place known as bridge of Kandi Wah, they got intercepted in the manner that a car having crossed them in the first place and then it stopped at some distance ahead of them in their front at about 8-30 a.m., out of the same, already known Muhammad Juman, Deedar Ali, Mashooque and Liaquat deboarded, whereas the driving seat thereof remained occupied by Muhammad Sallah, who too deboarded later; they all were armed with firearm weapons like Kalashnikov and rifle respectively; Muhammad Sallah challenged the complainant and his companions that they would murder one of them, namely, Rasheed Ahmed; Muhammad Sallah fired his K.K. rifle at Rasheed Ahmed, while others fired their respective weapon upon Rasheed Ahmed, too; the said Rasheed Ahmed got injury and a passerby Muhammad Usman also received fire shot injury; Rasheed Ahmed fell down and expired on the spot; the culprits managed to escape thereafter, and the complainant approached the police for such report. The police on such information registered the case and started investigation.
The nominated persons Juman and Deedar were arrested on 12-6-1991; the place of wardat was inspected; the blood-stained material was secured from the spot; the crime empties were also secured therefrom; inquest report and the memo of dead body and that of injuries pertaining to him and to the injured Usman etc., were drawn before the mashirs, on their respective place; the crime weapons were secured from the accused by the SHO Abrar Ahmed, who happened to be the second 1.0., to such extent only and the rest of the investigation was carried by the third I.O. and after completion of the investigation, the case was charge-sheeted on 2-5-1992 in the Court of law against the aforesaid arrested accused persons, the respondents Nos. 1 and 2, shown in custody together with three others placed as absconder in the relevant column thereof.
3. The learned trial Court framed the charge on 17-10-1992 against the respondents for their having committed the murder and caused bullet shot injuries_ to the deceased and injured of the case on the given date, place and time, in furtherance of their common intention, as reported against, and thereby committed the offences punishable under sections 302, 307 and 324, read with section 149, P.P.C., to which they pleaded 'not guilty' and claimed trial. The prosecution led evidence and examined 10 witnesses including the complainant, eye-witnesses Asmatullah, Saifullah, Ashraf; official witnesses, namely, SIP Abrar Ahmed, Inspector Ghulam Kabeer, Additional SHO Ghulam Akbar, tapedar, M.O. Dr. Aijaz Ali, SIP Muhammad Yaseen, and two others, namely, Ghulam Rasool and Abdul Aziz. The Court examined the respondents under section 342, Cr.P.C, who also examined themsleves on oath under section 340(2), Cr.P.C. in rebuttal of the prosecution case and evidence, as also they produced their defence witness, namely, Inspector Abdul Sattar of Crime Branch, Sukkur. The case was transferred to the Court of Special Judge, STA, Shikarpur, who heard the matter and pronounced the judgment of acquittal on 2-8-1995. Hence, this appeal.
4. We have heard Mr. Altaf Hussain Surahio, the learned counsel for the State/appellant, while none appeared for the respondents.
5. By the short order dated 25-11-2010, this Court dismissed the appeal for the reasons to be recorded later-on.
6. The perusal of the record, which carries the impugned judgment and evidence of both sides, goes to show that the prosecution has failed to prove the guilt of the appellants beyond shadow of any reasonable doubt and, therefore, the court acquitted them on the ground of benefit of doubt in the interest of justice for the reasons given there against on points of determination basis. The prosecution did not examine the injured Usman in the case. Had he been examined, he would have A supported the case, but his absence or non-production without any legal excuse, give rise to the presumption against the prosecution that had he been examined, he would not have supported the case. He being eyewitness was very much material being injured so for as the ocular testimony is concerned. The other person, who was material, had died being victim of the incident, whereas the others who have examined themselves as eye-witnesses including the complainant and two others, namely, Asmatullah and Saifullah, are inter se closely related and are bound to support each other and since the material witness, referred to above, is left unexamined for no valid reason, their evidence needs corroboration of positive nature, which is nowhere available except the circumstantial evidence, which too, carries lapses, such as, the secured weapons and empties were not sent to the expert, while the blood-stained material though referred to the expert but being delayed by a term of more than two years in point of dispatch thereof, can hardly carry any weight. A simple circumstance, as a matter of law, which creates doubt as to the guilt of the accused to the offence, he is charged with, is sufficient to make him entitled to his acquittal, in terms of the rule laid down in the case Tariq Parvez v. The State, reported in 1995 SCM R 1345, which finds support from the view expressed in the case of Ilyas v. The State, reported in 1997 SCM R 25.
The law on the benefit of doubt, which is applicable in the case in hand and is open to be relied on as a case-law is reported as Ghulam Qadir and others v. The State, 2008 SCM R 1221, in which it has been held that:-- "It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful."
7. An acquittal judgment of like nature makes a case of the accused as one of the presumption of double innocence. The learned counsel appearing on behalf of the State/appellant has not been able to satisfy this court that the impugned judgment suffers from any error or illegality based on non-application and misreading of the produced material of the prosecution causing miscarriage of justice and, therefore, the appeal merits no consideration. For the reasons in hand, the appeal stood dismissed.