MUHAMMAD IQBAL MAHAR, J.---Instant acquittal appeal is directed against the judgment dated 23.12.2014 passed by learned Judge, Anti-T errorism Court, Sukkur in Special Case Nos, 51, 52, 53 and 54/2009, arising out of FIR No, 121/2009, offence under sections 302, 324, 353, 148, 149, 497, P.P.C. and 7-ATA, 122/2009, offence under sections 324, 353, 147, 148, 149, P.P.C., 123/2009 and 124 under section 13(d), Arms Ordinance of Police Station Pano Akil, whereby respondent Nos,1 to 4 were acquitted.
2. Precisely , prosecution case is that on 25.05.2009 complainant ASI, Rafique Ahmed Seelro alongwith SHO, Abdul Malik Bhutto, PC, Shafi Muhammad and PC, Fateh Muhammad after patrolling different places when at 0300 hours reached at Sindh-Panjab stand, heard firing reports towards Mahesro Patrol Pump. The complainant party went towards the pointed place and saw on the light of electric bulbs and search-light six persons, with opened faces and armed with Kalashnikovs, who would be identified on seeing again. The accused persons seeing the police made straight firing upon them in order to commit their murder . The police party also retaliated the firing, which continued for about 10/15 minutes. Thereafter all the accused persons went away towards eastern side by taking advantage of walls of the patrol pump. The complainant party went ahead and found PC, Mazhar Ali sustaining injuries and dead and PC, Dil Jan Bullo in injured condition, both were said to be performing their duties at Zangejo picket. Thereafter chowkidar of petrol pump, namely , Sadiq Ali and helper Mazhar Ali came out of the office. Injured PC, Dil Jan told the complainant party that he and PC, Mazhar Ali while performing their duties at Zangejo picket heard cries and firing reports from petrol pump side and went there. They saw six persons armed with deadly weapons, who were committing robbery from the staff of patrol pump. On their arrival accused made straight firing upon them with intention to commit their murder . They retaliated the firing in defense and during firing he and PC, Mazhar Ali sustained firearm injuries at the hands of accused. He further told that his official G-3, one magzine, 40 live bullets and SMG, magzine and live bullets of PC, Mazhar Ali had been taken away by the accused. Chowkidar Sadiq Ali also disclosed that his repeater of .12 bore and five live cartridge had been robbed away by the accused.
The SHO along with police party chased the accused persons. Thereafter injured PC, Dil Jan and dead body of deceased PC, Mazhar Ali were sent to Taluka Hospital Pano-Akil for treatment and post mortem respectively , but injured PC, Dil Jan was referred to CMH Cantt. Pano Akil for better treatment. Thereafter , the complainant went at PS and lodged the FIR.
3. The Police after usual investigation submitted challan of the case. The learned trial Court observed all legal formalities and framed combined amended charge against the respondents at Ex.9-D, who pleaded not guilty and claimed trial.
4. To substantiate the charge, prosecution examined PW-1 ASI Muhammad Ali at Ex.11, who produced mashirnama of arrest of accused Mukhtiar alias Mukho at Ex.11/A. PW-2 A.M.S, Muhammad Bux at Ex.12, who produced post-mortem report of PC, Mazhar Ali, inquest report and medical certificate of PC, Dil Jan at Ex.12/A to 12/C. PW-3 Mumtaz Ali at Ex.13, who produced mashirnama of arrest of accused Piyaro and Sijawal as well as recovery of official weapons etc. at Ex.13/A. PW.4 complainant, ASI, Rafique Ahmed Seelro at Ex.15, who produced FIR of crime No,121/2009 of P.S Pano-Akil and roznamcha entry at Ex.15/A and 15/B. PW.5 Injured PC, Dil Jan at Ex.16. PW.6 Inspector Abdul Malik at Ex.18, who produced FIR of Crime Nos,122, 123 and 124 of 2009 of Police Station Pano-Akil and roznamcha entry at Ex.18/A to 18/D. PW.07 PC Shall Muhammad at Ex.19. PW.8 HC Sunharo Khan at Ex.20, who produced inquest report, mashirnama of inspection of dead body of deceased PC, Mazhar Ali, mashirnama of inspection of place of incident, mashirnama of injuries of PC Dil Jan, mashirnama of inspection of second place of wardat and mashirnama of securing blood stained uniform of deceased PC Mazhar Ali at Ex.20/A to 20/F. PW. 9 SIP Ghulam Hyder at Ex.21, who produced mashirnama of formal arrest of accused Qurban. PW-10 Retired Inspector Qurban Ali at Ex.22. Thereafter the prosecution closed its side vide statement at Exh.23.
5. After conclusion of the prosecution evidence, statements of respondents Nos,1 to 4 were recorded at Exhs.24 to 27, as required under section 342, Cr.P.C, wherein they denied the prosecution case and claimed their innocence.
However , neither they examined themselves on oath in terms of section 340(2), Cr.P.C. nor led any evidence in their defence.
6. Learned trial Court after hearing the learned Counsel for the respondents, learned ADPP for the State and appraising the prosecution evidence passed impugned judgment, which has been assailed through instant acquittal appeal.
7. Learned Deputy Prosecutor General contended that the impugned judgment passed by learned trial Court is against the law and principles of natural justice; that complainant ASI Rafique Ahmed and injured PC Dil Jan had supported the prosecution case but their evidence was not considered by learned trial Court; that the remaining prosecution witnesses have fully supported the case of prosecution; that the evidence of prosecution witnesses led corroboration from the medical evidence as well as recovery of weapons from respondents; that no enmity was suggested by learned counsel for the respondents; that the learned trial Court acquitted the respondents Nos,1 to 4 on the grounds which are not supported from the material available in the file. He lastly concluded that the impugned judgment is result of misreading and non-reading of evidence, therefore, it may be set aside.
8. Conversely , learned counsel for respondent No,1 strenuously opposed the acquittal appeal and submitted that respondents Nos,1 to 4 are innocent and have falsely been involved in this case by the complainant; that the names of respondents No,1 to 4 do not appear in FIR and nor the identification parade was held before learned Magistrate; that chowkidar Sadiq Ali and helper Mazhar Ali were not examined by the prosecution; that the alleged incident occurred at night time but none of the prosecution witnesses has stated regarding the light of electric bulb; that the complainant and injured Dil Jan did not support the prosecution case and the injured was declared hostile by learned ADPP . He lastly concluded that the prosecution has failed to prove guilt of the respondents to the hilt, as such the trial Court had no option but to acquit the respondents of the charge, therefore he prayed that instant acquittal appeal may be dismissed.
9. We have considered the arguments advanced by the learned counsel for the parties and have examined the record minutely with their able assistance.
10. Perusal of record reflects that the names and features of respondents Nos,1 to 4 have not been given in the FIR on the contrary it has been specifically stated that the complainant, SHO and other staff have seen the accused persons on the light of electric bulbs and search light, hence they would identify the accused on seeing again but record reveals that no identification parade was arranged before learned Magistrate.
11. The prosecution examined two eye-witnesses of the incident, i,e,, complainant ASI Rafique Ahmed and injured PC Dil Jan. The complainant in his evidence before learned trial Court, deposed that "I have seen the accused persons who were with open faces and can identify them if seen again" . His evidence shows that neither the accused persons were shown to him in Court nor he disclosed that the accused present in Court are same. So far as the evidence of injured PC, Dil Jan is concerned he implicated respondent Qurban and identified him in Court but he was declared hostile by the prosec ution, therefore his evidence is not helpful to the prosecution. Apart from above the chowkidar and helper of Petrol Pump, namely , Sadiq Ali and Mazhar Ali, who are said to be the victim of offence as they were robbed by the accus ed, were not examined by the prosecution, hence the evidence of Police officials can not be relied upon without independent corroboration which is lacking in this case.
12. The second incident is of police encounter with the accused at 11.30 am near the village of accused but none was injured from either side, nor the police mobile was hit by firing made by the accused and nor any villager was cited as witness of the incident.
13. So far as the recovery of crime weapons from respondents is concerned, it has come in evidence that neither the weapons recovered from the respond ents/accused nor the empties secured from place of wardat were sealed at spot nor sent to the Expert for verification. Investigating Officer deposed that "It is correct that I have not sent the weapons to Ballistic Expert." Furthermore, SIP Abdul Malik deposed that "Both recovered weapons were official weapons which were recovered from accused persons," but investigating officer deposed that. "The numbers on the weapons are not in sequence and they are up and down. The numbers are not of company but they are punched numbers. It can be said that these are not official weapons." Apart from above no independent perso n from the village was joined in recovery proceedings. In such circumstances recovery of weapons have become doubtful which has rightly been disbelieved by learned trial Court.
13(sic.) As far as the medical evidence is concerned, it is settled proposition of law that medical evidence may confirm ocular evidence with regard to seat of injury , nature of injury and kind of weapon used in the commission of offence but could not connect the accused with the commission of crime, as medical evidence is always considered as supporting corroborative piece of evidence hence, injuries by themselves are not sufficient to identify the culprit.
As we have not believed the ocular account of prosecution, therefore medical evidence is of no help to the prosecution. In this respect reliance can be placed upon case of Mehmood Ahmed and 3 others v. The State and another ( 1995 SCMR 127 ).
14. After considering the material available in file we are of the firm view that the judgment passed by learned Judge, Anti Terrorism Court Sukkur is based on proper appreciation of the evidence which is not fanciful and it has not been pointed out that some incriminating material was not taken into consideration by learned trial. Judge, which had caused gross miscarriage of justice. Needless to emphasize that when accused person is acquitted by a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment, with which the superior Courts do not interfere unless the impugned judgment is vague, perverse and arbitrary or against the record. In this regard we are fortified by judgment delivered by honourable Supreme Court in case of Haji Amanullah v . Munir Ahmed and others reported in 2010 SCMR 222 , wherein it has been observed that:- "Appellate Court would not interfere with acquittal of accused merely because on reappraisal of evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusion are reasonably possible. However , if the conclusion reached by lower Court was such that no reasonable person would conceivably reach the same and was impossible, then Appellate Court would interfere in such cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too with a view to avoid grave miscarriage of justice and for no other purpose........
Important test is that the finding sought to be interfered with should be found wholly artificial, shocking and ridiculous after scrutiny".
In another case of Muhammad Aslam v. Sabir Hussain and others reported in 2009 SCMR 985, the honourable Supreme Court has also observed as that: "It needs no reiteration that when an accused 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 arbitrary , capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asgar and others 2003 SCMR 477 "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence Law requires that Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
15. For what has been discussed above we found that the prosecution has failed to bring home the charge against respondent Nos,1 to 4 beyond reasonable doubt, thus the findings of trial Court are neither perverse nor arbitrary , the appellant has failed to point out any misreading or non reading of evidence, therefore, instant acquittal appeal being devoid of merits was dismissed in Court by our short order today and above are the reasons of our short order .