' QAISER RASHID KHAN, J.---State through this appeal filed under section 417, Cr.P.C. Has questioned the legality and propriety of judgment dated 29-7-2011 passed by the learned Judge, Anti- Terrorism Court D.I.Khan, vide which the accused/respondents, namely, Muhammad Ramzan, Nosher and Muhammad Faqir, were acquitted of the charge brought against them in case F.I.R.
No.69 dated 5-4-2011 under sections 324/353/429/148/ 149 P.P.C., 13 AO, 3/4 Explosive Substances Act and section 7 of the Anti-Terrorism Act, registered at police station Dera Town, D.I.Khan.
2. A brief account of the prosecution case is that the accused/respondents, namely, Muhammad Ramzan and others were wanted to the police in case F.I.R. No.31 dated 31-1-2009 and F.I.R. No.27 dated 11-2-2011; that on information about their presence in their houses at Basti Dad Wali, D.I.Khan, a police party under the command of DSP Malik Mushtaq raided their-houses; that the accused on seeing the police party started firing from the morcha and courtyard of their houses to which the police also responded killing Shadi Khan and Gul Zaman and injuring accused Muhammad Ramzan; that allegedly from the firing of accused, Mst. Azizan Bibi was injured and two she-goats were killed; that accused Muhammad Ramzan was arrested in injured condition along with a Kalashnikov with fitted magazine having nine rounds of 7.62 bore and a bandolier and plastic envelope with live rounds along with Kalashnikov, hand-grenade, detonators and mobile phone from the dead accused; that accused Nosher, Alam Sher and. Faqir alias Faira made good their escape from the scene of occurrence and that Alam Sher was reportedly killed in some other occurrence; that subsequently accused Nosher and Faqir were also arrested.
3. After submissions of challan against the accused/respondents, they were formally charge- sheeted to which they did not plead guilty and claimed trial.
4. In order to prove its case against them, the prosecution produced and examined twelve witnesses.
5. The gist of the prosecution evidence is that Doctor Malik Akhtar Khan (P.W.1) had examined the injured accused Muhammad Ramzan, the other victim, namely, Mst. Azizan Bibi, conducted autopsy on the dead bodies of the deceased Shadi Khan and Gulzaman; had proved the Medico- legal Reports of the injured (Exh.PM and Exh.PM/2), prepared injury sheets (Exh.PM/1 and Exh.PM/3), and post-mortem-reports of the deceased (Exh. PM/4 and Exh. PM/5) respectively. P.W.2, Muhammad Nazir had identified the dead bodies of the two deceased. ASHO Allah Wasaya, A.S.-I.
Allah Baksh, Muhammad Nawaz S.H.O. And Malik Mushtaq DSP being members of the raiding party had furnished ocular account of the incident as P.Ws., 3, 5, 11 and 12 respectively. P.W.6, namely, Ghulam Khan S.I. Was examined as marginal witness to the recovery memo Exh.P.W.6/1 to Exh.P.W.6/5 and Exh.P.W.3/2. Ghulam Shabir Khan Inspector was examined as P.W.8 who had received the reports from the Forensic Science Laboratory vide Exh.P.W.8/1 to Exh.P.W.8/4 and placed the same on file. Toseef-ur-Rahman was examined as P.W.7, while Zeeshan Ali constable as P.W.9 and Noor Muhammad Khan Inspector as P.W.10. The latter had conducted investigation in the case and proved the recovery memos Exh.P.W.6/1 to Exh.P.W.6/5, Exh.P.W.3/2. He is also witness to the case property (P.1 to P.40). He had also drafted application (Exh.P.W.10/1) for the examination of case property through Fire Arms Expert; had collected copies of F.I.R. And history sheets of the accused as Exh.P.W.11/2 and Exh.P.W.11/9. He had also applied through application (Exh.P.W.11/10 and Exh.P.W.11/11) for obtaining warrants under section 204, Cr.P.C. And notices under section 87 Cr.P.C.
6. Thereafter, the accused/ respondents were examined under section 342, Cr.P.C. But they denied the allegations levelled against them and pleaded innocence. However, neither they produced any evidence in defence nor opted to record statements on oath in terms of section 340(2), Cr.P.C.
7. The learned trial Judge on evaluating the evidence brought on record and considering the arguments addressed at the bar by the learned counsel for the parties came to the conclusion that the prosecution had not been able to prove its case against the accused/respondents and A thus by extending them the benefit of doubt acquitted them of the present charge through the judgment which is now under challenge by the State through the appeal in hand.
8. Mr. Saleemullah Khan Advocate, the learned counsel representing the State argued with great vehemence that the impugned judgment of acquittal is not based on correct legal footings because the Prosecution had successfully proved its case against the accused/respondents through cogent and tangible evidence. He argued that the case of the prosecution was duly supported by the ocular and circumstantial evidence and thus the accused/respondents were liable to be convicted and sentenced. He submitted that the learned trial Judge has wrongly relied on the minor discrepancies and based the impugned conclusion on assumptions and presumptions, hence liable to be set aside. The last limb of his arguments was that the impugned judgment of the learned trial Judge has resulted into grave miscarriage of justice because it is based on non-appraisal of material evidence available on record.
9. We have carefully gone through the impugned judgment and anxiously considered the valuable arguments of the learned counsel for the State.
10. Perusal of the record reveals that from the evidence brought on record, the prosecution had not been able to prove its case against the accused/respondents beyond any shadow of reasonable doubt and, therefore, the learned trial Judge has rightly appraised the same while drawing the impugned conclusion.
11. The charges against the accused/ respondents are of ineffective attempt of qatl-e-amd by firing at the police party, B deterring the raiding party from the discharge of their official obligations and the constitution of unlawful assembly for the purpose of rioting. The record depicts that the two deceased, namely, Shadi Khan and Gulzaman and Muhammad Ramzan, accused/respondent, were hit with the firing of the police party. The dead bodies of the two deceased, the injured accused/ respondent Muhammad Ramzan were found in the field situated adjacent to the house of the said accused. Likewise, the recovery of Kalashnikov, hand-grenade and live rounds of 7.62 bore was effected from the said field near the places of the two deceased and the injured accused/respondent shown in the site plan. There is no direct evidence in the case and the ocular testimony of the four eye-witnesses does not support the factum of firing by the accused/respondents at the police party, because when appeared in the witness box, they categorically stated that the accused/respondents had not made any firing. In contrary, the site plan (Exh.P.13) prepared by the Investigating Officer on the pointation of Muhammad Nawaz S.H.O.
(P.W.11) followed by the recovery memo Exh.P.W.6/3 shows that the three empties of 7.62 bore (P.31.) were found and recovered by the I.O. From point No.1 near the place of said Muhammad Nawaz Khan S.H.O. At point No.5 assigned to him in the site plan. P.W.12, Malik Mushtaq DSP also denied having made any firing at the accused party. P.W. Allah Bakhsh, A.S.-I. Shown in the site plan to be near to S.H.O. Muhammad Nawaz too in his statement did not own any firing at the accused despite the recovery of empties from a place alongside Muhammad Nawaz. Thus the said recovery of empties together with the glaring contradictions in the statements of the P.W. Leave much to be desired as far as the prosecution case is concerned.
12. As such, there are material contradictions and lacunas in the prosecution evidence due to which the case falls to the ground. The learned counsel for the State has not been able to pinpoint any infirmity, illegality or jurisdictional defect C in the impugned findings of the Court below so as to warrant interference therein by this Court which are based on correct legal footings, need no interference and are accordingly maintained.
13. 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:-
(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 reappraisement 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 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 reappraisement 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 neces.Titated 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".
14. 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 dictum handed down by the apex court in the cases reported in 2004 SCM R 249, head note(b), 2009 SCM R 288 and 2009 SCM R 946.
15 As a corollary to what is discussed above, we find no substance in this appeal which is hereby dismissed in limine.