' QAISER RASHID KHAN, J.---Aggrieved of the judgment dated, 29-6-2011 of the learned Additional Sessions Judge-V D.I.Khan acquitting the respondents charged in case F.I.R. No.178 dated 26-7-2010 of Police Station Dera Town, Tehsil and District D.I.Khan registered under sections 302/376/34. P.P.C., the appellant has filed the instant appeal.
2. Compendium facts leading to the instant appeal are that on 26-7-2010 at 1115 hours, the .Appellant/complainant along with the dead body of his daughter Mst.Shahnaz Bibi reported to the local police that his daughter was married to Karam Elahi who had gone to Saudi Arabia in connection with his job and that his daughter was residing with her in-laws at Zafar Abbad Colony; that on the eventful day he was in. His house when Barkatullah (accused/convict) informed him on telephone that his daughter had been killed by someone through strangulation on which he immediately went to their house at Zafar Abbad Colony where he found her dead in courtyard of the house with her dopatta tied around her neck with her eyes protruding out and nobody was present in the house with the rooms locked. He charged Barkatullah (accused/convict) along with the accused/respondents for the murder of his daughter through strangulation either in the morning or during the last hours of the night and that all the accused had decamped from the spot. According to him, the motive was that 'his son-in-law used to send money from Saudi Arabia to his deceased wife and her in-laws were aggrieved from the same and that is how they had killed her. On the basis of said report, the accused were charged vide F.I.R. Ibid, Subsequently, on 7- 8-2010, in view of the confessional statement of accused Barkatullah, section 376, P.P.C. Was also incorporated in the F.I.R.
3. After submission of the complete challan and complying with the provisions of section 265-C, Cr.P.C, formal charge was framed 'against the accused to which they showed denial and claimed trial. The prosecution produced as many as 11 witnesses in order to bring home guilt against the accused. On the conclusion of trial, the learned Additional Sessions Judge-V D.I.Kban vide impugned judgment convicted the accused Barkatullah under section 302(b), P.P.C. And sentenced him to death. He was further convicted and sentenced under section 376, P.P.C. To ten years' R.I. And fine of Rs.1,00,000, in default to suffer six months simple imprisonment. He was also ordered to pay Rs.5,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased under section 544-A, Cr.P.C, in default to undergo six months' simple imprisonment with benefit under section 382-B. Cr.P.C. The respondents were, however, acquitted of the charge levelled against them, hence this appeal by the appellant/complainant.
4. The learned counsel for the appellant argued that the accused/ respondent No.1 is the father of the convicted accused Barkatullah while respondent No.2 Mst.Zaitoon Bibi is his mother and that they were residing in the same very house; that the occurrence had taken place inside the house and that the accused/respondents had every complicity in the commission of the offence with their son Barkatullah as they were deeply aggrieved of the money being sent to the deceased by her husband Karam Elahi from Saudi Arabia and that is how they decided to kill her and portray it otherwise. He argued that despite the occurrence having taken place inside their house, still no efforts were made to save the life of the deceased lady, or for that matter even to make a telephonic call to the appellant about the unfortunate death of his daughter and that the act of the respondents in leaving the house with the doors of the rooms locked and abandoning the dead body of his daughter in the courtyard are all pointers in the direction that they were actively involved in the heinous and brutal act and thus they were vicariously liable for the offence but have been wrongly acquitted by the learned trial Judge and they are liable to be awarded a befitting sentence.
5. We have given our anxious consideration to the submissions made by the learned counsel for the appellant and perused the entire record of the case.
6. Perusal of the record shows that the prosecution had been able to prove its charge against the convicted accused Barkatullah in view of his confessional statement and on account of recoveries so made from him and he was accordingly convicted by the learned trial court. However, the case of the respondents is on totally different footings, because except for being charged in the F.I.R., there is nothing on record to remotely connect them with the commission of the offence, as there being no eye-witness to the occurrence, the recoveries so effected having nothing to do with the accused/ respondents and similarly is the medical report (Exh.PN), vide which five scars tiny on two anterolateral aspect of right lower fore arm of accused/respondent Muhammad Din; nothing material is available on record to show his involvement in the commission of the offence. As such on the basis of available record, the accused/respondents have been rightly acquitted by the learned trial Judge which does not call for interference through the instant appeal.
7. Furthermore, once an accused is acquitted by the competent court of law after facing the agonies of protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate court unless it is established through cogent and reliable evidence available on record that the order of acquittal fanciful, erroneous or has resulted into grave miscarriage of justice which is lacking in the case in hand.
8. In the case reported as Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 Supreme Court 11), the honourable, Supreme Court of Pakistan has laid down the principles attracted to appeal against acquittal in the following manner:-- 9.
(i) (i) In an appeal against acquittal, the Supreme Court, would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of the court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions; one initial, that till found guilty, the accused is innocent; and two that again after the trial a court below confirmed the assumption of innocence.
(ii) The acquittal will not carry the second presumption and will also thus, lose the first one if on points having conclusive, effect on the end result the court below; (a) disregarded material evidence;
(b) received such evidence illegally.
(iii) In either case, the well known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason.
(iv) The court would not interfere with acquittal merely because on reappraisal 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 conclusion and irresistible conclusions; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized 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".
9. Thus by now it is settled law that when an accused is . Acquitted by a competent Court of law after facing the agonies and ordeal of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court unless it is established through cogent and tangible evidence available on record that such acquittal is fanciful, erroneous or has resulted into grave miscarriage of justice. Reliance in this respect may also advantageously be placed on the dicta handed down by the august apex Court reported in 2004 SCM R 249, head note(b), 2009 SCM R 288 and 2009 SCM R 946.
10. Consequently, we find no substance in this appeal which is accordingly dismissed in limine.