' ABDUL RASOOL MEMON. J,---The respondent, acquitted accused Yousif Ali Khan son of Ehtram Ali Khan was tried by learned IIIrd Additional Sessions Judge Malir for having ineffective firing on his brother-in-law, the complainant Umair and P.W-1 with pistol and issued him threats of dire consequences on 19-6-2008 at 6.30 p.m. While he was present at service road near Meezan Bank at Al-Azam Flats Sohrah Goth Karachi along with his friends Adnan and Muhammad Yousif.
Accordingly the respondent No,1 Yousif Ali was charged for having committed offence punishable under sections 324, 506(b) P.P.C. After conclusion of the trial, learned IIIrd Additional Sessions Judge Malir by her Judgment dated 31-1-2011 acquitted the respondent/accused.
2. Not consented with the order of the acquittal, complainant has filed present acquittal appeal.
3. For an offence under criminal law, burden is upon the prosecution under Article 117 of Qanun-e- Shahadat Order, 1984. The respondent's defence or no defence is un-material (sic).
4. In order to prove its case against the respondent/acquitted accused, the prosecution produced as many as six witnesses at the trial. It may be mentioned here that the fate of prosecution case, in the main, hinges upon ocular testimony of complainant Umair Ahmed (P.W.1), Adnan Ali (1'.W.4) and Muhammad Yousif (P.W.5), who claimed to be present at the scene of occurrence at the time of alleged incident. Since the complainant is brother-in-law of the respondent/acquitted accused and both the alleged eye-witnesses are his friends therefore, in the circumstances, their evidence is required to be subjected to a close and critical examination/scrutiny.
5. I have heard appellant in person, learned counsel for the respondent No,1 and learned A.P.-G. On behalf of the State.
6. The complainant/appellant has argued that the judgment passed by the learned trial court is based on misreading and mis-appreciation of the evidence, which has caused serious prejudice to the prosecution. According to him, the version of complainant was supported by all the independent witnesses even then his evidence was not accepted by the learned trial court without assigning any cogent reason as such the impugned judgment is not sustainable in law.
7. Learned counsel for respondent No,1 has pointed out that in the entire episode of the prosecution case, there is delay of 19 days in lodging the F.I.R., the evidence of all the witnesses is contradictory and no any sort of recovery was made from respondent No,1, as such the empty bullet allegedly recovered from the place of wardat could not get examined from expert, resultantly prosecution failed to prove its case against the respondent No, 1.
8. Learned Assistant P.G for the State has supported the impugned Judgment of the trial court and has frankly argued that there is no iota of evidence against the respondent for his involvement in the alleged commission of crime. He has further agreed that the Judgment of the learned trial court is legal and proper, she has discussed entire evidence in detail produced in the case.
9. I have given my patience hearing to the arguments advanced at the bar and have gone through the judgment impugned and the evidence produced by the prosecution. Conscious of the fact that it is an appeal against acquittal where the accused/respondent is now equipped with double presumption of innocence as held by the honourable Supreme Court of Pakistan and this court in various reported Judgments.
10. The complainant/appellant while reporting the matter at police station stated in his report that he along with his friends namely Adnan, Muhammad Yousif and Raees when reached at service road near at AlAzam Flats near Meezan Bank Sohrab Goth , Karachi at 1830 hours, his brother in law Yousif Ali Khan with his friend not known to complainant came on motorcycle and asked him that he has made wrong by moving complaint against him to Nazimabad police and after exchanging hot words took out a pistol and tried to fire upon the complainant but got it missed by Yousif, friend of complainant, when the complainant party tried to arrest him, he while issuing threats of dire consequences fled away. He further stated that when the police has not taken any action on his application and ultimately under the orders of court, his F.I.R. Was registered.
11. It may be noted that when the complainant was examined in court as P.W.1, he gave a different version of the occurrence and stated that when he reached near Al Azam Flats, his vehicle got heat up, hence he parked it beside the road and pouring water in radiator, his friend Adnan went for purchasing mobile card. The complainant consumed 15/20 minutes there and in the meantime accused came on his motorcycle and stopped it near the car of complainant and after issuing threats to take back his application, put his pistol on temple of complainant. When his friend tried to apprehend him, he fired but was missed. It appears to me that the complainant/appellant has made these improvements in his court statement to justify his presence at alleged place of occurrence, otherwise he has not stated in the F.I.R. As to why he was present at the alleged place of occurrence.
12. The above version of the complainant is not supported by P.W.4 Adnan. He has deposed that on his request, complainant stopped his vehicle and there he went for his own work and when at about 7.00 p.m., he returned back, he saw two persons one of them was misbehaving with complainant Umair This witness has not stated if the car of the complainant had been heat up and for that reason they stopped the car or even he did not say if he went for purchasing mobile card before the alleged incident. The other eye-witness Muhammad Yousif (P.W.5) has also deposed a different fact that Adnan got stopped vehicle for purchasing phone card and in the meanwhile he and complainant checked the radiator of the vehicle. This witness has not stated if vehicle was stopped by the complainant due to its heat up. It indicates that either these witnesses were not joining the complainant or the incident has not taken place as is being claimed by the prosecution.
13. In the circumstances, evidence of these witnesses does not inspire confidence. Furthermore the complainant has admitted enmity with the respondent No,1 that he was annoyed with him when he saw him with a girl in an objectionable position in his house. In view of this background and admittedly being friend of complainant, the evidence of both the eye-witnesses Adnan and Muhammad Yousif is interested and untrustworthy. They cannot be deemed as independent witnesses. It is settled law that when the parties are on inimical terms, independent corroboration is necessary. In this respect reliance is placed on the cases reported as Mst. Jallan v. Muhammad Riaz and others (PLD 2003 Supreme Court 644).
14. In this case prosecution has also examined P.W.3 Hazar Khan as an independent witness but he has clearly deposed that he heard from the people gathered at the place of wardat that two persons, who came on motorcycle, fired shots which is not the case of prosecution and the above statement of this witness clearly shows that he himself has not seen the respondent No,1 on his part at the time of alleged incident. According to this witness, he found an empty bullet lying adjacent to red car and kept it with himself and handed over to police when inquired from him about the incident after about 20/21 days from the incident. He has not furnished any explanation as to why he has not disclosed to complainant or police about the recovery of alleged empty bullet from the wardat immediately after the alleged incident, as such this piece of evidence is also appear to be set up one.
15. P.W. Mrs. Amber Ihtram, wife of complainant though is sister of respondent No,1 but admittedly she was not present at the time of alleged incident, as such her evidence is hearsay and not material one. LO. Of the case was not examined and in his place P.W.6 A.S.-I. Muhammad Anwar was examined who simply identified the handwriting of both the I. Os., S.-I. Abdul Qadeer and S.-I.
Aneel Khushik.
16. It will not be out of place to mention here that it is now well settled that where in acquitting an accused the trial court has not violated any rule of law and has not ignored any material fact, while appreciating evidence on record, its inference did not suffer from any legal or factual infirmity and that he has correctly commented on the credibility of the witnesses and has evaluated the entire evidence in detail, then in that case there is no justification for me to interfere with the order of acquittal even if a different view could be taken, though it is not so possible in this case.
17. The fact remains that it is for the prosecution to prove its case. Against the accused beyond any shadow of reasonable doubt and the prosecution cannot take benefit from the weakness of the defence plea.
18. Accordingly I am of the considered opinion that the prosecution in present case has miserably failed to establish its case beyond reasonable doubt ad therefore, the respondent/accused was rightly acquitted by the learned trial court. The present appeal being devoid of force/merit is dismissed accordingly