AFTAB AHMED GORAR, J.---The appellant being aggrieved and dissatisfied with the impugned Judgment dated 08-01-2015 passed by the learned Sessions Judge/Special Judge [S.T.A.] Court, Shaheed Benazir Abad in Session Case No, 07 of 2003 St. v. Iftikhar Unar and others , crime No, 104 of 1999, Police Station Qazi Ahmed, registered under Sections 324, 302, 109 and 34 Pakistan Penal Code., delivered in favour of respondents, appellant approached this court by filing the instant criminal acquittal appeal requiring interference by this court.
2. Mr. Muhammad Akbar Khan, advoc ate, representing the appellant contended that the judgment dated 08.01.2015 has been passed from errors of law facts be recalled; per learned counsel learned lower court has brush aside the evidence of material prosecution witnesses viz. PW-Aijaz Ali, PW-Syed Kamil Shah, PW- Muhammad Ramzan, PW-Abdul Jabbar and two government functionaries; per learned counsel there are no contradictions in the evidence of prosecu tion witnesses; per learned counsel the entire evidence of prosecution witnesses is inconsistency to each other; per learned counsel this is a broad daylight incident and eye-witnesses have rightly identified accused persons; per learned counsel the report of Forensic Science Laboratory is positive in nature: per learned counsel the evidence of prosecution witnesses is bearing high quality and degree which ought to have not have been ignored; lastly learned counsel fore the appellant prayed for setting aside of impugned judgment.
3. Mr. Mehmood A. Qureshi, advocate representing the respondent contended that the impugned judgment is well, sound reason and is result of appreciation of entire prosecution evidence; per learned counsel the judgment would not requires any interference by this court; per learned counsel the plea of alibi was duly approved by the learned lower court because presumption of truth is attached to the plea of alibi perhaps same went proved; per learned counsel there are series of contradictions in the evidence of prosecution witne sses; per learned counsel the mashirnama, of recovery is crystal clear when it was prepared no bullet was recovered from the place of scenario; per learned counsel there are series of discrepancies and dent in the prosecution case from all canon; per learned counsel the judgment is self-explanatory; per learned counsel the criminal acquitt al appeal may be dismissed as there is source of presumption of double innocent which is attached to the accused.
4. Mr. Abrar Ali Khichi, Additional Prosecutor General Sindh, opt the arguments advanced by the learned counsel for the respondent and contended that the impugned judgment is well reasoned and is in spirit with the law and would not require any interference by this court as well; per learned APG the learn ed lower court Judge has rightly arrived at the conclusion and has acquitted the accused from the charged offence; per learned APG the plea of alibi has also been went proved; per learned APG the learned lower court has fully appreciated the entire prosecution evidence from every canon and there is nothing wrong with the impugned judgment; per learned APG the instant criminal acquittal appeal may be dismissed.
5. Heard and perused.
6. At the very outset, this is an appeal against acquittal wherein presumption of double innocence is available to the accused. After scanning the record reflects that during course of investigation respondent approached the Investigation Officer with the plea of alibi and stated that at the time of occurrence respondent with well present along with co-accused Sher Muhammad in the office of [Late] Kazi Mohammad Saleh, Senior Advocate, however the plea of alibi taken was accepted as truth by the Investigation Officer thereafter name of the respondent was kept in Column No,II of the charge sheet. The thrust of impugned judgment reveals that co-accused Sher Muhammad who was alleged to have with the present respondent on the relevant date and time at Nawabshah town in the office of Late, Kazi Muhammad Saleh Advocate, moved application under Section 265-K, Cr.P.C. same went rejected vide order dated 21.04.2012 thereafter Criminal Miscellaneous Application No, 106 of 2012 was filed before this Court same was allowed and co-accused Sher Muhammad was acquitted by this court vide order dated 05.11.2013. The plea of alibi also support from the memo of place of incident and recovery of empty bullet shells. In the FIR as well as in evidence, complainant and witnesses have deposed that accused [present respondent] was armed with mouser , yet not a single empty shell of mouser was found/ collected by the police from the place of incident at the time of inspection.
7. Nonetheless to mention herein that, the appellant filed an application under Section 193 Cr.P.C. which was allowed by the learned lower court! respondent challenged the said order before this court same was recalled by this court in Criminal Revision Application No, 46 of 2005 vide order dated 30.05.2005. Appellant challenged the said order before the Hon'ble Apex Court: the Hon'ble Supreme Court of Pakistan has observed that "after recording evidence of material witnesses the application under Section 193, Cr.P.C. be considered afresh" . Thereafter learned lower court record ed evidence of PW-Aijaz Ali Shah [complainant], PW-Dr.Abdul Jabbar Jirjat, PW-Toto Khan [Tapedar] and PW-Syed Kamil Ali Shah. Learned counsel representing the appellant/ complainant time and again moved an application under Section 193, Cr.P.C. for joining respondent Sher Muhammad, Zulfiqar Ali and Iftikhar Khan r present respondent"], said application was allowed by the learned lower court vide order dated 25-11-2010. After conclusion of the trial, respondent was acquitted by the learned trial court.
Be that as it may, as per prosecution case the appellant and other co-accused persons duly armed with T.T. Pistols fired upon complainant party with intenti on to cause hurts on the person but no bullet thereof has been hit to anybody else. Mashirnama of place of incident is crystal clear and shows that no any empty of the alleged pistol was ever recovered from the place of incident.
8. Besides above, it may not be out of place to mention here that an appeal against acquittal has distinctive features and approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non- appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order: While exam ining the facts in the order of acquittal, substantial weight should be given to the findings of the lower courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of Muhammad Ijaz v. Fahim Afzal (1998 SCMR 1281 ) and Jehangir v. Aminullah and others (2010 SCMR 491). It is settled principle of law as held in the plethora of case laws that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosec ution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
9. It appears that perhaps the appellant is interested to drag the respondent in this case. Even otherwise, perusal of impugned judgment reveals that after thoroughly examining material, the trial court in its elaborate, well- reasoned order arrived at the conclusion that prosecution remained unsuccessful to prove the case against respondent and acquitted the respondent. There is hardly any improbability or infirmity in the impugned order of acquittal recorded by the learned trial court, which being based on sound reasons does not warrant any interference by this Court and is accordingly maintained. We therefore, dismiss the instant Criminal Acquittal Appeal having no merits for consideration.
These are the reasons of short order dated 30-01-2019.