' SAGHEER AHMAD QADRI, J.---This criminal petition for grant of leave to appeal under section 417(2)
Cr.P.C. Was moved by complainant/petitioner Mst. Zakiya Begum widow of Muhammad Afzal resident of 295-JB, Tehsil and District Toba Tek Singh as learned trial Court/Additional Sessions Judge vide impugned judgment dated 21-6-2011 acquitted the respondents Muhammad Shehbaz, Muhammad Shehzad alias Sajjad and Badshah while extending them benefit of doubt.
2. Brief facts in order to dispose of this petition are that Faqir Hussain son of present petitioner Mst.
Zakia Begum on 11-7-2010 at 9-20 a.m. Lodged F.I.R. No,221 at Police Station Saddar Toba Tek Singh wherein it was alleged that his younger brother Muhammad Wakeel on the evening of 10-7-2010 left the shop of Zulfiqar Ali their cousin where he was employed and was proceeding back to the house who did not reach home till 9-00 p.m. The complainant later on sent Muhammad Arshad and Zaman P. Ws. In his search and they found bicycle owned by Muhammad Wakeel along with four packets of Ghee lying on the road within the area of 295/JB. They remained on searching for Muhammad Wakeel throughout the night and on the next morning i,e, at 11-7-2010 at 8-00 a.m.
They found dead body of Muhammad Wakeel in semi-naked position fastened with a tree. On further checking it transpired that some unknown persons killed him by firing. Initially the F.I.R.
Above mentioned under section 302, P.P.C. Against some unknown persons was recorded. Later on the complainant/petitioner Mst. Zakia Begum submitted an application (Exh.DA) on 21-7-2010 before the Investigating Officer mentioning the facts that actually Muhammad Wakeel who after purchasing the household articles was coming back to his house where on the way Muhammad Shehbaz, Muhammad Shehzad sons of Ghulam Muhammad and Badshah son of Muhammad Sharif respondents Nos.1 to 3 overpowered him, subjected him to torture and subsequently killed him by firing. The accused were seen by Muhammad Shahbaz given up P.W. And Muhammad Abad P.W.7 near the place of occurrence in suspicious condition. Investigation was conducted by the I.O. C.W.2 Muhammad Ashraf, S.I who did not find any evidence connecting the respondents with the commission of the alleged offence; anyhow, he found them innocent and submitted challan in the court placing them at the mercy of the court.
3. Feeling aggrieved by the investigation in the State case the present complainant/petitioner Mst.
Zakiya Begum mother of the deceased filed a private complaint wherein she reiterated her stand mentioned in the application Exh.DA levelling the allegation against respondents Nos.1 to 3/accused of commission of the murder of her son Muhammad Wakeel. She further narrated in the private complaint that her elder son Faqeer Hussain who was married with Mst. Razia Bibi, sister of Muhammad Shahbaz and Shahzad alias Muhammad Sajjad accused/respondents Nos.1 and 2 and would be "Hum Zulf" of 3rd accused Badshah with mala fide did not disclose the actual facts and while exonerating the respondents/accused lodged the report against some unknown persons; that the three accused subsequently made extra judicial confession before Muhammad Tanzeem P.W.8 and Muhammad Saleem given up P.W. The motive for the occurrence was shown that Mst. Razia Bibi wife of Faqeer Hussain (the complainant in the State case) had been quarrelling with petitioner/complainant Mst. Zakia Bibi and due to that reason four days prior to the alleged occurrence Muhammad Wakeel deceased reprimanded her and gave beating and due to that grievance all the three accused committed the murder of deceased Muhammad Wakeel.
4. The learned trial court summoned all the three accused/respondents and they were charged on 29-11-2010 under section 302, P.P.C. Read with section 34, P.P.C. To which they pleaded not guilty.
The complainant/petitioner examined 8 witnesses including herself as P.W.6 while gave up Rana Muhammad Shahbaz son of Abdul Ghafoor and Faqeer Hussain having been won over and Muhammad Saleem and Bismillah as unnecessary. The learned trial Court also recorded the statement of Muhammad Arshad, ASI as C.W.1 who recorded the formal F.I.R. In State case as Exh.C.W.1/B on the basis of complaint Exh.C.W.1/A. Muhammad Ashraf, S.I/I.O. Of the State case appeared as C.W.2. Both of these witnesses were cross-examined by the learned-counsel for the complainant as well as the accused. The learned trial court recorded the statement of the accused under section 342, Cr.P.C. And concluded the trial as no defence was led and vide impugned judgment dated 21-6-2011 acquitted all the three respondent/accused. Feeling aggrieved this petition under section 417(2), Cr.P.C. Has been moved by the complainant/petitioner for grant of leave to file appeal against acquittal.
5. Learned counsel for the petitioner at preliminary stage argued that although there was sufficient incriminating circumstantial evidence available on record in the shape of last seen evidence brought on record by Muhammad Abad P.W.7 which was further corroborated by the statement of P.W.8 Muhammad Tanzeem as the accused respondents made extra judicial confession before him and Muhammad Saleem given up P.W. The motive was also proved and further corroboration was also available in the shape of medical evidence, therefore, the acquittal was passed without any lawful justification as the above mentioned evidence was not appreciated in its true perspective. Contends that as Faqeer Hussain son of Muhammad Afzal real son of present petitioner who posed himself as complainant and was brother-in-law of accused/respondents Nos.1 and 2 with mala fides did not show the accused as actual culprits and lodged the F.I.R.
Against some unknown persons, however, ,the accused were seen by P.W.7 Muhammad Abad and Muhammdd Shahbaz P.W.3 roaming around the place of occurrence and subsequently respondents confessed their guilt before P.W.8 and in the light of statement of complainant petitioner P.W.6 and the medical evidence sufficient grounds were available; that charge under section 302, P.P.C. Read with section 34, P.P.C. Was proved but the learned trial court while misreading the evidence available on record did not appreciate the same and wrongly extended the benefit of doubt in favour of the respondents. Prayed that while granting leave this petition be converted into appeal.
6. I have heard learned counsel for the petitioner at preliminary stage and perused the record.
7. Admittedly, No, 221 dated 11-7-2010 (Exh.C.W.1/B) was recorded on the basis of complaint Exh.C.W.1/A lodged by Faqeer Hussain son of Muhammad Afzal real son of present petitioner Mst. Zakia Bibi. Admittedly, initially in the F.I.R. Nobody was named as an accused. It for the first time during the investigation came in sight that on 21-7-2010 the complainant/petitioner Mst. Zakia Bibi moved application Exh.PE before the DPO, Toba Tek Singh wherein she levelled allegation against the three accused/respondents namely Muhammad Shahbaz, Muhammad Shahzad alias Sajjad sons of Ghulam Muhammad and Badshah giving the facts that they were seen roaming near the alleged place of occurrence and factum of their extra judicial confession before P.W.8 was also disclosed in the said application. In order to prove the charge against the respondents the complainant/petitioner as already mentioned examined 8 witnesses and court further examined C. W.1 Muhammad Arshad who recorded the formal F.I.R. And Muhammad Ashraf C.W.2 the Investigating Officer of the State case. Admittedly, the complainant/petitioner Mst. Zakia Bibi is not the eye-witness and whatever she narrated in the complaint Exh.PF and while appearing as P.W.6 is based only on hearsay as she whatever deposed in the court was came into her knowledge through the sources specially P.W.7 Muhammad Abad and P.W.8 Muhammad Tanzeem and Muhammad Shahbaz and Muhammad Saleem given up P.Ws. If the statement of P.W.7 Muhammad Abad is seen, he in his statement before the court stated that he on 10-7-2010 along with Muhammad Shahbaz P.W. Saw the three accused persons present near the road under the impression that they were armed with firearm. On inquiry they disclosed that they were waiting for some guest. This witness stated that after the murder of Muhammad Wakeel they narrated this fact to Mst. Zakia and other relatives on the same night.
During the cross-examination this witness clearly admitted that he immediately after the occurrence remained present at the spot and in his presence the I.O. Recorded the different proceedings at the spot as well as statements of the witnesses. P.W.8 Muhammad Tanzeem is the person before whom allegedly the three accused/respondents made extra-judicial confession.
This witness also stated that on 12-7-2010 when he was present in the "Baithak" of Muhammad Saleem given up P.W., the factum of last seen as well as statement/extra judicial confession for the first time was disclosed by the petitioner/complainant through her statement dated 20-7-2010 submitted before the DPO on 21-7-2010, prior to that although P.W.7 and P.W.8 along with the given up P.Ws. Had been appearing before the police, joined the investigation but they .Never disclosed this fact. If last seen evidence discussed by the learned trial Court in Para 16 of the judgment is seen P.W.7 Muhammad Abad only stated that he found the respondents-accused present near the alleged place of occurrence. This witness never deposed nor claimed that he ever saw the deceased in the company of the respondents-accused. Except that they were found present at the spot and on their inquiry they disclosed that they were waiting for some guest. As far as extra- judicial confession is concerned which is discussed in Paras 17 and 18 of the judgment it is also astonishing as to why the accused approached him for confessing their guilt although no allegation was ever levelled against them in the F.I.R. Lodged by the real brother of the deceased.
All these aspects have been discussed by the learned trial Court while discussing the evidentiary value of these 'pieces of evidence and concluded that these are not sufficient to corroborate the allegation levelled in the private complaint. Apart from that there is also no evidence available on record to prove the motive and medical evidence in isolation is not sufficient to prove the charge against the accused /respondents.
8. It is now settled that the scope of interference in an appeal against acquittal is very narrow and limited because in appeal against acquittal the double presumption of innocence is available and until unless prosecution is able to make out a case whereby learned trial Court while ignoring the material evidence available on record reached at a conclusion of acquittal against .The settled principles of criminal justice. In a recent judgment cited as "THE STATE and others -v. ABDUL KHALIQ and others" (PLD 2011 SC 554) their Lordships of 'Hon'ble Supreme Court of Pakistan provided the principles and guidelines to be adhered to by the courts while deciding appeals against acquittal, which are hereby reproduced:-- "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal.
Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. Supreme Court being the final forum would not chary and hesitant to interfere in the findings of the courts below. Supreme Court observed that it was expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals."
In the light of above discussion the conclusion drawn by the learned trial Court resulting in acquittal is lawful and justified and does not call for interference by this Court. Resultantly, this petition is hereby dismissed in limine.