SYED MUHAMMAD FAROOQ SHAH, J.---By invoking the appellate jurisdiction of this Court under section 417(2), Cr.P.C., the State through Advocate General Khyber Pakhtunkhwa, assailed the impugned judgment pronounced on 09.09.2017 by the learned Additional Sessions Judge-VI, Abbottabad, thereby the above named respondents had been acquitted. Though captioned appeal a prayer for reversal of aforesaid judgment has been made.
2. Averments of the FIR lodged on 13.09.2013 by Waheed Ahmed Khan, the complainant, against unknown culprits are that eight (8) months prior to the registration of FIR, he had contracted marriage with Mst. Zeb-un-Nisa, an aged women of 60/61 years. On eventful day at 10:30 A.M, after receiving telephonic message that his house had been set on fire, he rushed to the house and found some burnt household articles and dead body of his wife Mst.
Zeb-un-Nisa. The Cantt police station took up the investigation, arrested the accused/ respondents and from the possession of respondents Zubair Ahmed Kiyani stolen articles had been recovered and after his admission of occurrence before the magistrate and arrest of co-accused Tanveer , beside, completion of usual formalities the challan was submitted before the competent Court of law , for trial.
3. Trial commenced after framing of charge by the learned trial Court for an offence punishable under section 17(4) of The Offences Against Property (Enforce-ment of Hudood) Ordinance, 1979, read with sections 436/452/412, P.P.C. Both accused/respondents by professing their innocence pleaded not guilty and claimed trial. Prosecution, to substantiate the charge, examined 22 PWs and thereafter , statement under section 342, Cr.P.C. of the accused/respondents had been recorded by the learned trial Court. Trial culminated on acquittal of respondents, as mentioned supra.
4. Without dilating upon the details of prosecution evidence, beside material available on record, elaborately discussed by the learned trial Court; to ascertain perversity or otherwise of the impugned judgment stated to be fanciful and shocking, against facts and law leading to miscarriage of justice, we would like to cursory peruse and scan the impugned judgment, evidence and material on record with the valuable assistance rendered by Malik Akhtar Hussain, learned Assistant Advocate General, KPK for the State.
5. It is pertinent to mention that in criminal cases, the prosecution is bound to prove its case against the accused beyond reasonable doubt and if some doubt is created in the prosecution case, then the accused be acquitted not as a matter of grace but as a matter of right. A perusal of impugned judgment transpires that the learned trial court while appraising rather thrashing the prosecution evidence highlighted specific material contradictions among the testimonies of PWs, beside inconsistencies. The learned trial Court after discuss ing the prosecution evidence in detail, observed that the prosecution has miserably failed to prove its case against the respondents/accused.
Admittedly , conviction cannot be based on high probabilities and suspicion cannot take the place of proof, therefore, no legal sanctity is attached to the FIR lodged against unknown persons.
6. From perusal of record, it transpires that the unseen incident hinges on circumstantial evidence, such as recovery of stolen articles and retracted confessional statement of respondent Tanveer. Chain of events had been discussed well by the learned trial Court and found incomplete/not connected. Insofar as, recovery of stolen articles from the possession of respondent Zubair Ahmed Kiyani is concerned, the recovered articles were not sealed at the spot as required under the police rules; entry and Roznamcha to prove movements of police from the police station to the place of arrest and recovery of case property , casting doubt on such proceedings of police. Moreso; identification test of secured property was not conducted in accordance with rules and settled principles of law as recovered articles had already been shown to the complainant by the investigatio n officer at the police station on 14.09.2013, prior to identification test. Possibility of false implication of respondents by the police cannot be ruled out, more particularly , PW-5/Complaina nt Waheed Ahmed Khan (Father-in-law of the respondent No,1), by involving the respondent in commission of offence, categorically stated in the last of examination-in-chief recorded on 08.01.2015 that:- "I do not have any proof in my own possession which could connect my son-in-law with the instant offence."
He was declared Hostile and had been cross-examined at length by the prosecution in which he had admit ted that his daughter had filed a family suit for dissolution of marriage against accused facing trial, prior to the present case, and at the time of lodging of report no list of stolen articles had been furnished to the police. In cross-examination, conducted by the prosecution, PW Waheed Ahmed Khan, the complainant stated that he is maintaining no relation with accused after the occurrence. Case of the prosecution is that upon disclosure of accused Zubair Ahmed Kiyani co-accused Tanveer was arrested on 15.09.2013. On admission of guilt made by the respondent Tanveer , his confessional statement was recorded by the learned judicial magistrate on 17.09.2013, which is found not available on the file; anyhow , legal authenticity of the said confessional statement has been discarded in detail by the learned trial Judge in paragraphs 11 and 14, while placing reliance on the case of Azeem Khan and another v.
Mujahid Khan and others (2016 SCMR 274). The learned Assistant Advocate General, KPK for the State is not found capable to distinguish the mentioned cited ruling.
7. It is not out of context to say that conviction could only be based upon unimpeachable evidence and certainty of guilt. Circumstantial evidence should be in chain of circumstances interlinked in the manner that it makes out single unbroken chain with intrinsic worth and reliability of every single piece of evidence as part of chain of circumstances, which is missing in the present case. Suffice it to say that the impugned judgment is speaking one, does not suffer from misreading, non-reading or non-appraisal of evidence or lack of appreciation of material evidence or jurisdictional defects or evidence of material nature produced by the prosecution were not recorded or that the acquittal judgment is based on surmises, supposition, conjectures and the acquittal is based upon reasons which do not appeal to a reasonable mind. Case of prosecution is filled with dents, lacunas creating loop holes, doubts in a prudent mind, ultimately leading to incredibility pertaining to actual commission of offence in the manner or mode set out by the prosecution.
8. We have already fortified our views in judgments delivered earlier by us in likew ise appeals against acquittal by placing reliance on the case law in such context, expounded in (i) AIR 1934 PC 227 (2) (SheoSwarup and others v.
King Emperor ), (ii) PLD 1985 SC 11 (Ghulam Sikandar and another v. Mamraz Khan and others ), (iii) PLD 1977 SC 529 (Fazal-ur -Rehman v. Abdul Ghani and another ), (iv) PLD 2011 SC 554 (The State and others v. Abdul Khaliq and others ), (v) PLD 2010 SC 632 (Azhar Ali v.The State ), (vi) 2002 SCMR 261 (Khadim Hussain v.
Manzoor Hussain Shah and 3 others ), (vii) 2013 PCr.LJ 374 (Fateh Muhammad Kobhar v. Sabzal and 4 others ),
(viii) 2011 PCr.LJ 856 (FSC) (Mst. Salma Bibi v. Niaz alias Billa and 2 others ), (ix) PLD 1994 SC 31, (Ghulam Hussain alias Hussain Bakhsh and 4 others v.The State and another ), (x) 2010 SCMR 1592 (Qurban Hussain alias Ashiq v .The State ), (xi) 2017 SCMR 633 (Intizar Hussain v . Hamza Ameer and others ).
Whatever mentioned above, we reached at the irresistible conclusion that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons, unexceptional, do not warrant any interference by this Court, and is accordingly maintained.
Resultantly , the captioned appeal is dismissed in limine.