NAIMATULLAH PHULPOTO, J.--Respondents Muhammad Ajmal alias Akram Lahori and Tassaduque Hussain alias Shaikh were tried along with Attaullah alias Qasim and Muhammad Azam alias Sharif by learned Judge, Anti-Terrorism Court-V, Karachi in Special Case No.22 of 2002 for offences under sections 302, 337-A(i), 337-F(iii), 427, 34, PPC, read with section 7 of the Anti-Terrorism Act, 1997. By judgment dated 17th January 2007, respondents Muhammad Ajmal alias Akram Lahori and Tassaduque Hussain alias Shaikh were acquitted and remaining two accused, namely, Attaullah alias Qasim and Muhammad Azam alias Sharif were sentenced to death under the above referred sections.
2. Trial Court sent reference to this Court for confirmation of death sentence recorded against accused Attaullah alias Qasim and Muhammad Azam alias Sharif.
3. Accused Attaullah alias Qazim and Muhammad Azam alias Sharif filed Special Anti-Terrorism Appeal No.06/2007 through Jail against the aforesaid judgment, challenging the conviction and sentence recorded against them.
4. Additional Advocate General Sindh filed present Special Anti-Terrorism Acquittal Appeal No.02/2007 against the acquittal recorded by trial Court in favour of respondent/acquitted accused, namely, Muhammad Ajmal alias Akram Lahori and Malik Tassaduque Hussain alias Shaikh.
5. Mr. M. R. Syed, counsel for appellants Muhammad Azam alias Sharif and Attaullah alias Qasim appeared on 31.03.2015 and submitted that both the appellants/accused during pendency of their appeal have been executed in some other case through process of law and stated that their appeal (Special Anti-Terrorism Appeal No.06/2007) has become infructuous so also the reference for confirmation of death sentence. Jail roll of appellants Muhammad Azam alias Sharif and Attaullah alias Qasim was called from Superintendent, Central Prison, Sukkur in which it was mentioned that on 30.02.2015, appellants Muhammad Azam alias Sharif and Attaullah alias Qasim were executed, therefore, their appeals were abated, the reference made by the trial Court for confirmation of death sentence became infructuous and disposed of accordingly.
6. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 11.02.2002 at 08:15 p.m. at Pak Iranian Tea Company, Shahrah-e-Iraq, Saddar, Karachi, Ramzan Ali, owner of Tea Company along with Ihsan Ali, Muhammad Firdouos, Nasir Hussain and Khadim Hussain were present.
Accused persons namely Muhammad Ajmal alias Akram Lahori, Ataullah alias Qasim, Tassaduque Hussain and Muhammad Azam, armed with the fire arms came there on two motorcycles, parked their motorcycles in front of Tea Company, came to the Tea Company and fired at them and accused Muhammad Azam threw some explosive substance inside the said Tea Company which caused blast/explosion and the articles lying in the said Tea Company were damaged. On account of firing and explosion made by accused owner of Pak Iranian Tea Company Ramzan Ali sustained fire arm injuries and expired while Ihsan Ali and Firdous Khan sustained fire arm injuries. ASI Falak Sher, who was present near the place of incident arrived at place of incident and shifted the injured and dead body to the JPMC. S.H.O. was also patrolling, he arrived at place of occurrence. F.I.R. of the incident was lodged vide Crime No.38/2002 at Police Station Saddar, Karachi under sections 302, 337-A(i), 337-F(iii), 427, 34, PPC, read with section 7 of the Anti-Terrorism Act, 1997.
7. After usual investigation, challan was submitted against the accused under above referred sections.
8. Charge against all the four accused was framed at Ex-3. Accused pleaded not guilty and claimed trial. At the trial, prosecution examined the following witnesses:
1. PW-1 PC Muhammad Ashraf at Ex-8
2. PW-2 HC Chaudhry Manzoor at Ex-11
3. PW-3 Sadiq Ali at Ex-12
4. PW-4 ASI Muhammad Akram Khokhar at Ex-15
5. PW-5 Hamid Ali Mangi, Tapedar at Ex-20
6. PW-6 Dr. Jessarani, MLO at Ex-23
7. PW-7 HC Noor Muhammad Shah at Ex-31
8. PW-8 Ehsan Ali at Ex-33
9. PW-9 Nasir Hussain Gilgiti at Ex-36
10. PW-10 Muhammad Firdous Pathan at Ex-37
11. PW-11 Muhammad Iqbal Awan at Ex-38
12. PW-12 Inspector Wajahat Hussain Mughal at Ex-41
13. PW-13 Muhammad Hussain Gilgiti at Ex-42
14. PW-14 Aamir Hameed Arain, DSP, ATW at Ex-44
15. PW-15 Lubna Yousuf Memon, JM at Ex-15 Thereafter, prosecution side was closed.
9. Statements of accused Muhammad Ajmal alias Akarm Lahori, Malik Tassaduque Hussain alias Shaikh, Ataullah alias Qasim and Muhammad Azam alias Sharif were recorded under section 342, Cr.PC at Exhibits 63, 64, 65, 66, respectively. Accused denied the prosecution allegations and claimed false implication in this case. Accused did not lead any defence and declined to give statement on oath in disproof of prosecution allegations.
10. Learned trial Court after hearing the learned counsel for the parties and assessment of evidence by judgment dated 17th January 2007 convicted and sentenced accused Muhammad Azam alias Sharif and Attaullah alias Qasim and acquitted accused Muhammad Ajmal alias Akram Lahori and Malik Tassaduque Hussain alias Shaikh, as stated above. The State being dissatisfied with the impugned judgment to the extent of acquittal of respondents filed the aforesaid appeal.
11. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, argued that respondents/acquitted accused have been acquitted by the trial Court solely on the ground that both eye witnesses have stated before the trial Court that accused were standing beside the motorcycles at the time of incident. Learned A.P.G. argued that there was sufficient evidence against the respondents to connect them in the commission of offence. He has also argued that respondents facilitated the main accused in the commission of crime. Lastly, it is argued that reasons assigned by the trial Court are not cogent while recording acquittal against the respondents.
12. Mr. Muhammad Ashraf Kazi, appearing on behalf of respondent No.1 argued that no overt act has been attributed to the respondents in the commission of offence. He has also argued that prosecution case was highly unbelievable against the respondents. Mr. Kazi further argued that respondents were not present at the time of incident. Mr. Kazi argued that in the appeal against acquittal while evaluating evidence, distinction is to be made in the appeal against conviction and appeal against acquittal. Interference in the latter case is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. He has argued that this is not the case of misreading of evidence. In support of his contentions he relied upon the cases STATE/GOVERNMENT OF SINDH through Advocate General Sindh, Karachi versus SOBHARO (1993 SCM R 585) and HASSAN versus THE STATE (1969 SCM R 454).
13. Both the learned counsel agreed that criteria of interference in the judgment against acquittal, is not the same as against the cases involving a conviction. Scope of interference in appeal against acquittal is narrow and limited for the reasons that 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, presumption of innocence is doubled. It is settled law that courts will be very slow in interfering with such an acquittal judgment unless it is shown to be perverse, passed in violation of law, suffering from errors of grave misreading or non-reading of 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 acquittal. In number of dictums laid down by the Honourable Supreme Court it has been categorically laid down that such judgment should not be interjected unless the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. We are not inclined to interfere simply for the reason that on the reappraisal of 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.
14. Having referred to the above principles, we would now proceed to consider the merits of the case. PWs Ihsan Ali and Muhammad Firdous have clearly deposed before the trial Court that respondents Muhammad Ajmal alias Akram Lahori and Malik Tassaduque Hussain alias Shaikh did not participate in the incident and they were standing beside the motorcycle and offence was committed by co-accused namely Muhammad Azam alias Sharif and Ataullah alias Qasim, who were sentenced to death by the trial Court. We have perused the judgment minutely. Trial Court has assigned sound reasons while recording acquittal in favour of respondents and has mentioned in the judgment that both respondents did not attribute any specific role in the commission of offence. Trial Court in the judgment at page-32 has recorded the following reasons: "A bare perusal of the evidence of PW-8 Ahsan Ali and PW-10 Muhammad Firdous show that these witnesses did not attribute any specific role to the accused Muhammad Ajmal alias Akram Lahori and Malik Tassadaque Hussain. In their depositions they have fully implicated accused Ataullah by identifying him that he has fired on the shop whereas accused Muhammad Azam was also identified with the role that he has thrown an explosive substance in the shop. Both these witnesses further stated that accused Muhammad Ajmal and Malik Tassaduque Hussain were standing on motorcycles but no specific roles have been assigned to them. The third eye witness PW-9 namely Nasir Hussain in his deposition also stated that accused Ataullah has fired on the shop whereas accused Muhammad Azam has thrown an explosive substance in the shop. His deposition is even silent about the presence of both accused Muhammad Ajmal and Malik Tassaduque Hussain, what to say of any role.
15. In the case of HASSAN versus THE STATE (1969 SCM R 454) Honourable Supreme Court has laid down the principle that mere presence of accused is not sufficient to attract provisions of section 34, PPC. Proof of some overt act on the part of each accused in furtherance of the common intention is necessary. In the case of State versus Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCM R 585) Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice.
Relevant portion is reproduced as under:- "14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCM R 96). In consequence this appeal has no merits and is dismissed."
16. In view of the above stated circumstances, we are satisfied with appraisal of evidence done by learned Judge, Anti-Terrorism Court-V, Karachi by judgment dated 17th January 2007. There is no gross misreading of evidence resulting in miscarriage of justice. Sound reasons have been assigned by the trial Court while recording the acquittal of the accused. In consequence, appeal has no merit, and is dismissed.
J U D G E J U D G E Gulsher/PS "A bare perusal of the evidence of PW-8 Ahsan Ali and PW-10 Muhammad Firdous show that these witnesses did not attribute any specific role to the accused Muhammad Ajmal alias Akram Lahori and Malik Tassadaque Hussain. In their depositions they have fully implicated accused Ataullah by identifying him that he has fired on the shop whereas accused Muhammad Azam was also identified with the role that he has thrown an explosive substance in the shop. Both these witnesses further stated that accused Muhammad Ajmal and Malik Tassaduque Hussain were standing on motorcycles but no specific roles have been assigned to them. The third eye witness PW-9 namely Nasir Hussain in his deposition also stated that accused Ataullah has fired on the shop whereas accused Muhammad Azam has thrown an explosive substance in the shop. His deposition is even silent about the presence of both accused Muhammad Ajmal and Malik Tassaduque Hussain, what to say of any role.
In such sort of cases, the apex Courts have always taken lenient view. Reference is made to the case of Hassan vs. The State (1969 SCM R 454) where the Hon'ble Supreme Court of Pakistan holds that mere presence would not be sufficient, but for conviction there must be proof of some overt act on the part of each accused. In another case reported as Pathan Lashari & 2 other vs. The State (2006 P.Cr.L.J 798) wherein the Division Bench of Hon'ble Court of Sindh while dealing with a case similar to the instant case, has hold that, "....In any event they are not attributed any overt act and hence their mere presence at the scene is insufficient to convict them on the theory of common intention/vicarious liability and therefore, acquitted the co-accused.
The case in hand is similar to the cases decided by the apex Courts as mentioned herein above.
Therefore, after going through the evidence and looking to the circumstances of the case in respect of accused Muhammad Ajmal alias Akram Lahori and Malik Tassaduque Hussain, the point under discussion is not proved and as such answered in negative.
As far as the case of accused Ataullah and Muhammad Azam are concerned, since they have fully been implicated by the eye witnesses assigning them specific roles, therefore, this point is proved against them and answered in positive."