ZAHEER-UD-DIN KAKAR, J.---This appeal has been directed against the judgment dated 19.11.2009 "the impugned judgment" passed by the learned Additional Sessions Judge-II, Quetta "the trial Court", whereby respondent/accused has been acquitted of the charge.
2. The prosecution story as given in the impugned judgment stated as follows: "The case of prosecution is that the complainant Abdul Malik is the brother of deceased, recorded in the Fard-e-Bayan that he resides at Killi Umar Quetta and on 25.9.2008 at about 7:30 p.m., he got prepared for paying visit to his ailing sister. He asked his brother Abdul Qadir (deceased) on phone as if he wants to accompany him. Abdul Qadir conceded to and invited him at Alamo Chowk for company. The complainant (PW-1) set out from home on his vehicle and met Abdul Qadir at Alamo Chowk. There Abdul Qadir told them for coming on his own vehicle. So they went to the house of their sister at Brewery Road and at quarter to nine by night they left for home. In their way back to home, Abdul Qadir halted at Askari Pump for filling diesel in his vehicle AAF-990- Quetta, the complainant also filled patrol in his car. The complainant alleged that as Abdul Qadir proceeded ahead, a white Jeep went in his pursuit. Four persons were sitting in that Jeep viz, Murtaza, Hazrat Ali (accused facing trial), Ahmed Khan and an unidentified to which he can identify on coming across. The complainant also followed them promptly. At about half past nine, when he reached at a road in front of Askari Park he saw those persons after intercepting the vehicle of his brother, accused Hazrat Ali alias Lalai and Ahmad Khan came out of the Jeep having Kalashnikovs in their hands and started indiscriminate firing on his brother Abdul Qadir who was sitting in vehicle. His brother became seriously injured and succumbed to his injuries on the spot.
The Accused persons fled the spot on the said Jeep--------------having no number plate on it.
The motive behind this wardat, as per complainant, is an old blood feud between them".
3. After registration of FIR, the investigation of the case was entrusted to PW-7 Syed Nazeer Shah SI, who proceeded to Civil Hospital, made superficial inspection of the dead body of the deceased Abdul Qahir, conducted proceedings under section 174, Cr.P.C., recorded statements of the witnesses and thereafter, visited the site and found vehicle No,AAF-990 having broken glasses of left side and also found bullet sign on the left rear side of the vehicle. He took into possession the blood stained articles, prepared memo of site inspection, obtained death certificate, arrested the accused and thereafter, in pursuance of letter of the. PPO, the investigation was transferred to Crimes Branch, where PW-8 Din Muhammad SIP conducted investigation, received FSL report Ex- P/8-A, recorded statements of witnesses and after completion of investigation prepared challan Ex . P/8-B .
4. On the stated allegations, a formal charge was framed on 24.11.2008 and read over to the respondent, to which he did not plead guilty and claimed trial. To prove the accusation, the prosecution produced following eight (8) witnesses: PW-1 Abdul Malik, complainant, produced his fard-e-bayan Ex-P/1.
PW-2 Shah Farooq, eye-witness.
PW-3 Hafeezullah SIP, witness of the memo of site inspection Ex-P/3 PW-4 Sardar Khan SIP is witness to recovery memo of blood stained articles Ex-P/4.
PW-5 Dr. Muhammad Ibrahim, examined the dead body of the deceased and found the following injuries on his person:
1. Firearm wound of entrance on the right side of the face diameter 1/2 cm. Exit of the firearm wound on the left side of the face. Diameter of about 1 cm.
2. Multiple firearm wound of entrance on the neck.
3. Firearm wound of entrance on the right side of the chest near the clavicle.
4. Firearm wound of entrance on the right arm.
PROBABLE CAUSE OF DEATH: was haemorrhage and shock by the discharge of firearm so the death was certified.
He issued certificate Ex-P/5-A.
PW-6 Azizullah Patwari prepared site map Ex-P/6-A.
PW-7 Syed Nazeer Shah IP and PW-8 Din Muhammad SIP are investigating officers. Then the prosecution closed its side.
5. The accused was examined under sections 342 and 340(2), Cr.P.C, wherein he denied the prosecution allegations leveled against him. He also produced Wali Khan as DW-1.
6. On conclusion of the trial and hearing the arguments advanced by the learned counsel for the parties, the trial Court acquitted the respondent vide impugned judgment dated 19.11.2009, hence the instant appeal.
7. The learned counsel for the appellant/complainant contended that the trial Court has miserably failed to appreciate the evidence available on record in its true perspective; that the ocular account of the eyewitnesses, medical evidence and circumstantial evidence have fully corroborated each other on material points and made a complete chain of evidence, which establishes that the accused/respondent committed murder of deceased; that the prosecution had proved its case beyond any reasonable doubt but the learned trial Court without any lawful justification acquitted the respondent, so it has been prayed that while accepting this appeal, impugned judgment passed by the trial Court be set aside and respondent be convicted in accordance with law.
8. On the other hand, the learned counsel for the respondent supported the impugned judgment and stated that the learned trial Court taking into consideration the evidence on record, on the basis of cogent reasons acquitted the respondent; so it has been prayed that this appeal is liable to be dismissed.
9. We have heard learned counsel for the parties and have gone through the impugned judgment and also read the evidence brought on record by the prosecution. It may be noted that the trial Court has thoroughly examined the evidence available on record and concluded that the prosecution has failed to establish accusation against the accused/respondent. Perusal of the record shows that in the instant case the prosecution relied upon the statements of PW-1 Abdul Malik and PW-2 Shah Farooq (brother and nephew of the deceased, respectively), but their statements contradicted each other on material points, which were highlighted by the trial Court in paras-18 and 19 of the impugned judgment. Furthermore, being brother and nephew, they are interested witnesses. Further during investigation nothing has been recovered from the possession of the respondent/accused.
10. It is settled principle of law that in appeal against acquittal, judgment of the learned trial Court cannot be reversed unless the same is perverse, completely illegal and that from the perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. In exercising this jurisdiction, this Court is always slow unless it feels that grave injustice has been done in administration of criminal justice due to incompetency and perversity of trial Court culminating into distorted conclusion. In this regard reliance is placed on the judgment of august Supreme Court of Pakistan reported as "Azhar Ali v. The State" (PLD 2010 SC 632).
11. From perusal of the record we are of the considered view that the judgment of learned trial Court is neither perverse, illegal, nor it was based on complete misreading of evidence leading to miscarriage of justice. The conclusion arrived at by the learned trial Court were based on cogent reasons. There was no infirmity or illegality found by us in the impugned judgment. In these circumstances, we have not been able to take a view different from the one taken by learned trial Judge. Even otherwise, it is settled principle of law that the accused, after his acquittal by trial Court, enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. Are obliged to be very careful in dislodging such presumption.
Reliance can advantageously be made to the case of "Iftikhar Hussain and others v. The State"
(2004 SCM R 1185), wherein at page 1194 the Hon'ble apex Court pleased to observe as under: "It is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. Are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr. P. C. Is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded the material evidence or misread such evidence or received such evidence illegally."
12. In this regard, further reliance can be placed on the case of "Haji Paio Khan v. Sher Biaz and others" (2009 SCM R 803), wherein the afore-referred view was further reiterated by the Hon'ble apex Court. Keeping in view the above circumstances coupled with guidelines given by the Hon'ble apex Court in the above quoted precedent cases, this Court is of the firm view that there is nothing arbitrary, capricious, fanciful, or against the record to warrant interference with the acquittal of the respondent/accused.
13. Resultantly, we find no merit in this appeal, which is hereby dismissed.