NAZEER AHMED LANGOVE, J.---Instant appeal is directed against the judgment dated 29th August , 2008 passed by the Learned Judicial Magistrate-III Quetta, where by the private respondents were acquitted of the charge under section 337-AD/34, P.P.C.
2. Precise facts relevant for disposal of instant appeal are that on 30th May, 2006 complainant namely Malik Shoaib lodged FIR No, 59/2006 with Police Station, Brewery, Quetta alleging therein that on the fateful day at about 3:00 pm he on his motor cycle reached to Kabir Building and no sooner he alighted from the motor cycle the private respondent were already present there, armed with iron pipe, knife and dagger. They took the complainant away where they called his brother Afzal and father Khair Muhammad. All the four beaten him owning to which he received injuries on his right wrist, right shoulder and nose. Meanwhile at his hue and cry his father Shair Muhammad came at the spot. The accused also started beating his father with pipe who received injuries on his nose and other parts of the body. After beating them the accused made their escape good from the spot. Shahzad (not before this court) had a pistol in his hand which, while fleeing he hand over to somebody. The motive behind the occurrence was stated to be the property.
3. On the basis of above report FIR was lodged Under Sections 337-ADF/34, P.P.C., against the accused persons and investigation commenced.
4. On 20th July, 2007 charge was read over to the respondents Nos, 1 to 3 to which they pleaded not guilty and claimed trial. The prosecution in order to substantiate the accusation produced 6 PWs.
Though copies of respondents' statements under section 342, Cr.P.C. have not been annexed with the appeal however, as per memo of appeal the private respondents were examined under section 342, Cr.P.C. wherein they denied all the incriminating pieces of evidence. The private respondents did not opt to get themselves examined on oath as envisaged under section 340(2), Cr.P.C., however, they produced 4 DWs in their defence. The learned trial court after hearing the parties and evaluating the evidence did not find the respondents guilty, as such acquitted them of the charge.
5. Learned counsel for the appellant argued that there is/was overwhelming evidence connecting the private respondents with the commission of offence but the learned trial court illegally acquitted them of the charge. It was maintained that the statements of injured led corroboration from medical evidence and recovery of pipe but the trial court without any justifiable reason discarded the same. Learned counsel stressed that the judgment impugned herein is result of surmises and conjuncture because 'possibility of false implication or mala fide are not born out from the record. Learned counsel stressed that the impugned judgment is result of misreading and non-reading of evidence. Bald observations have been made in the judgment impugned. The learned counsel further argued that there is nothing to suggest that medical evidence is in conflict with the oral evidence and the trial court arrived at such a conclusion owing to non-reading of evidence. Learned counsel urged that the trial court rejected the prosecution evidence due to existence of property dispute, the trial court could have treated it as a motive for launching attack upon the complainant. According to learned counsel the trial court fell in error while holding that the only piece of evidence against accused was recovery of pipe which too was discarded on the ground that the same was not secure in sealed parcel or for want of any sign thereon. Lastly the learned counsel argued that undue wait has been given to the statement of DW-1 to 3 despite the fact that in the peculiar circumstances of the case neither their statements appeal to a prudent mind nor the same could have been made basis for acquittal of private respondents.
On the other hand learned counsel for the respondents strenuously opposed the appeal and argued that the prosecution failed to prove guilt of the respondents to the hilt, as such the trail court had no option but to acquit the private respondents of the charge. The trial court after proper appraisal of material available on record and attending all the legal as well as factual aspects of the case passed a very exhaustive and well reasoned judgment. No illegality or irregularity, misreading and non-reading could be pointed out by the learned counsel for the appellant in the judgment impugned warranting interference by this court.
6. We have considered the arguments put forth by the learned counsel for parties and perused the record of case with their assistance. It may be noted that PW-1 Malik Shoaib while lodging the FIR mentioned therein that during assault accused Shahzad had a pistol in his hand which while fleeing he hand over to someone whereas PW-2 Sher Muhammad Father of PW-1/Complainant while recording his statement before the court negated the stance of complainant by stating that on 20th May, 2006 at 3:00 pm he was sitting in his office. He was attracted by hue and cry. He came down and saw Khair Muhammad, Afzal, Ameer Muhammad alias Shahzad and Faisal armed with pipe, iron rod and knife with which they were beating his son. It may further be noted that the complainant and PW-2 (eye-witness of the incident) failed to describe that which of the accused was armed with pipe, who was holding knife and who was having iron rod. PW-2 only stated that appellant Afzal attacked upon him with the help of pipe due to which his bone of nose fractured. If we take into consideration the statement of PW-2 (eye-witness and injured), the same negates the prosecution version about holding of pistol by Shahzad in his hand and while fleeing handing over the same to someone else. It is also beyond comprehension that respondent Faisal alias Shahzad despite armed with pistol did not make any fire. It may further be noted that during investigation neither the prosecution could recover any pistol, knife or dagger nor the medical certificates show any injury of knife. PW-4 Pervaiz Akhter who is witness to recovery of pipe (Ex. P/4-A) deposed that they reached Kabir Building near Al-saeed Hotel and found a piece of pipe lying there which was taken into possession by Raaz Muhammad S.I. He and Usman signed the recovery memo. Witness not confined himself to the extent of recovery of pipe piece rather by making dishonest improvement he stated that they took into possession the pipe with which Malik Sher Muhammad was injured. Needless to mention here that this witness reached the spot after fight and it is not known that how PW-4 stated that they took into possession the pipe with which Malik Sher Muhammad was injured specially when as per FIR the incident took place on 30th May, 2006 at 3:00 pm and the police proceeded to the place of incident on 31st May, 2006 at 8:00am. Moreover, PW-4 while appearing before the court made following dishonest improvements:- {{URDU TEXT}}
7. So far evidence furnished by PW-5 is concerned, he is second witness of recovery memo regarding recovery of pipe. This witness admitted that the pipe produced before the court was not sealed at the spot. Though the learned counsel for the appellant laid much stress on the recovery of pipe but we are of the considered opinion that the statements of both the witnesses are neither straightforward, trustworthy, reliable and confidence inspiring and we have no other option but to discard the same being contradictory, based on dishonest improvements. The failure of prosecution to seal the recovered pipe was seriously fatal to the prosecution case because the Sindh High Court in a case titled as Ameer Bakhsh and others v. The State reported in 2006 YLR 3188 discarded the expert's report on the ground that the property was not sealed at the place of its recovery. Such a recovery was also held to be inadmissible under Article 49 of Qanun-e- Shahadat Order 1984. Relevant observation therefrom is reproduced herein below:-- "Nevertheless none of these witnesses deposed that the said articles were sealed at the place of incident. Therefore, non-sealing of the articles at the place of incident reflects adversely upon the Ballistic Expert report hence it is unsafe to rely upon such piece of evidence. A reliance is placed on a decision of a Division Bench given by this Court in Criminal Appeal No, 392 of 2004, decided on 13.07.2016, where the above question was examined thoroughly and it was found that when the witnesses did not state before the Court that the property was sealed at the place of its recovery though such fact was mentioned in the Mashirnama, then the expert report lost its importance and the report was not relied upon on the ground that such fact in the Mashirnama was out of the scope of section 103, Cr.P.C. and was not protected under Article 49 of Qanun-e-Shahadat Order, 1984, therefore, found to be inadmissible in evidence. As such the crime empties secured from the place of incident have not been adequately and legally connected with the weapons allegedly secured from the possession of the appellants".
Likewise in the case titled as Roshan Ali alias lqrar v. The State reported in 2015 MLD 1618. It was held as under:-- "Wisdom behind sealing the weapon at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of the crime weapon. Sealing of weapon is essential, particularly in the cases when it is alleged that weapon was used in the commission of crime and empties were secured from the wardat.
Though PW-6 I.O. in cross-examination to his statement admitted that when he reached to Casualty Department, Civil Hospital complainant Shoaib had already taken his treatment and he (I.0.) also took the former with them to the place of incident. If we peruse the statements of PWs-4 and 5 both of them in their statements have not uttered a single word regarding taking of the complainant by the police to the place of incident.
8. Besides above, the respondents in order to disprove the charge produced four DWs. DW-1 is Javed Mengal, Deputy Secretary Food who deposed that on the day of incident he was posted .as District Revenue Officer whereas respondent No, 1 was special Magistrate. On day of incident he along with respondent No,1 since 8:00 a.m. up to 4:00 p.m. remained busy in distributing sugar at the Utility Store situated in Katcheri DW-2 Muhammad Arshad, Accountant Treasury Office Quetta, deposed that on 30th May, 2006 he being Accountant Treasury Officer Katcheri was busy in office.
Javed Mengal (DW-1) was EDO at that time. In these days there was scarcity of sugar and they were distributing sugar at Utility Store respondent No, 1 was on duty in connection with price control. The respondent No, 1 remained with them upto 3:30/4pm. DW-3 Muhammad Imran In charge Utility Store Katcheri deposed that on 30th May, 2006 with effect from 8:00 a.m. upto 4:00 p.m. respondent No, 1 remained with them because EDO Revenue ( DW-1) had posted him for the purpose of distributing the sugar. All the DWs are independent witnesses who on the day of occurrence were busy in discharge of their official duties. They were subjected to lengthy cross-examination but nothing favorable to the appellant could be extracted and they being absolutely independent witnesses, we have no reason to disbelieve and discard their testimony especially when the prosecution case is full of doubt, based on contradictory statements of PWs and dishonest improvements made by PWs. Needless to mention here that the defence is not required to create a series of dents and doubts in prosecution case but for giving the benefit of doubt if a single doubt is created even then the defence is entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Reliance can be placed on the judgment title as Muhammad Akram v. The State reported in 2009 SCMR 230.
Relevant observation there from are reproduced herein below:-- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit 'thereof must occur in favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right." Reliance can also be placed on case titled as Sher Umer Khan v. Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under:-- "It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the court to draw conclusion: whether the prosecution has succeeded in establishing accusation against the accused or otherwise: and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always consider as the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not.
Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086.
9. It may be observed that after gaining acquittal a double presumption of innocence was earned by the private respondents and the superior courts have always been reluctant to set aside findings of acquittal unless it is proved that the findings arrived at by the trial court while acquitting the accused are based on misreading, non-reading of evidence or the acquittal is perverse, shocking, artificial and ridiculous. In the instant case no illegality, irregularity, misreading, non- reading of evidence or that the findings arrived at by the trial court are perverse, shocking, artificial and ridiculous could be pointed out. Conversely perusal of record as well as the impugned judgment reveals that the learned trial court after proper appraisal of evidence and attending all the legal as well as factual aspects of the case passed a well reasoned judgment which is not open to 'any exception. Even on reappraisal of evidence we could not form a contrary view to that of the trial court. Reliance can be placed on the judgment titled as Haji Paio Khan v. Sher Biaz and others reported in 2009 SCMR page 803. Relevant observations there from are reproduced herein below:-- "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent Jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is orbitrary, capricious, fanciful and against the record".
10. It may further be added that the standards of assessing evidence in appeal against Acquittal and that of appeal against conviction are quite different. Appraisal of evidence, in appeal against conviction is done strictly and in appeal against acquittal such rigid method of appraisal is not be applied as there is already finding of acquittal given by the trial court after proper analysis of evidence on record. Reliance can be placed on the judgment titled as Sher Umer Khan v. Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 relevant observation there form reads as under:- "More so, this is appeal against acquittal and standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal Against conviction. Marked difference exists between appraisal of evidence in appeal against conviction and in appeal against acquittal. Appraisal of evidence, in appeal against conviction is done strictly and in appeal against acquittal such rigid method of appraisal is not to be applied as there is already findings of acquittal given by the trail court after proper analysis of evidence on record. Scope of appeal against acquittal of accused is considerably narrow and limited. Unless the judgment of acquittal is perverse, completely illegal and on perusal of evidence, no other decision could be given except that accused is guilty or there has been complete mis-reading of evidence leading to miscarriage of justice. High Court is always slow in exercise of jurisdiction under section 417, Cr. P. C, unless it finds that gross injustice had been done in administration of criminal justice."
For the foregoing reasons, we are of the considered opinion that the prosecution badly failed to bring home the charge against the private respondents beyond reasonable doubt and the defence succeeded to create serious doubts and dents in the prosecution case, thus; the trial court has rightly acquitted the respondents of the charge. No case for interference in the impugned judgment is made out, therefore, the appeal being meritless is dismissed.