KHADIM HUSSAIN TUNIO, J.---Since the Cr. Jail Appeal No. S-64 of 2006 against conviction and sentence and Criminal Acquittal Appeal No.D-39 of 2006, arise out of the common judgment dated 10.8.2006, the same appreciation of evidence is required, therefore, by this single judgment, we intend to dispose of the same.
2. Appellant Barkat Ali son of Hussain Bux Rajpar was tried by learned Sessions Judge, Nausheroferoz in Sessions Case No.55 of 2004 for offences under sections 302 and 34, P.P.C. culminated from Crime No.17 of 2004 registered at Police Station Nausheroferoz. Learned trial court vide judgment dated 10.08.2006 convicted the appellant/accused. Barkat Ali under section 302(b), P.P.C. and sentenced him to suffer R.I. for life imprisonment as tazir and to pay compensation of Rs.100,000/-to be paid to legal heirs of deceased as required under section 544-A, Cr.P.C. and in case of default thereof to suffer R.I for one year. However , appellant/accused was extended benefit of section 382- B, Cr.P.C., whereas co-accused Sardar alias Bangali and Akhtar Ali were acquitted of the charge. It is also pertinent to mention here that vide impugned judgment, learned trial court also acquitted the accused Ashfaque, Ashiq and Mujahid in Sessions Case No.61 of 2006, outcome of same crime.
3. Precisely , the facts of the prosecution case as unfolded in the FIR are that on 25.2.2004 at 1730 hours complainant Khadim Hussain Siyal lodged FIR with Police Station Nauhseroferoz, stating therein that in all they are seven brothers, out of whom his brother Aslam is aged about 12 years and Suhail Ahmed aged about 9/10 years, who were getting education. It is further alleged that about four days prior to registration of FIR, one Barkat Ali Rajpar and his brother . Aslam used abusive language with each other , on which Barkat Ali and others were annoyed. On 24.2.2004, complainant along with Muhammad Bachal and Qhulam Nabi were available in the street outside their house, when accused Barkat Ali, Sardar alias Bangali Rajpar , Mujahid Memon and Ashfaque Channa came there and asked the complainant that where is his brother Aslam, who had insulted Barkat Ali and they will take revenge and will not leave, thereafter they went away . On 25.2.2004 his brothers Aslam and Suhail came back from School and after having lunch, Suhail Ahmed went outside to play game, however , he did not come back despite passing of time. Thereafter complainant went in search of Suhail Ahmed and met with PWs Muhammad Bachal and Ghulam Nabi and they all went in searching Suhail Ahmed. It is also alleged that at 4.30 pm when they reached at the gate of Modern School Ward No.8, they noticed accused Barkat Ali Rajpar , Sardar alias Bangali, Mujahid Ali and Ashfaque came out from School, complainant party inquired from them about Suhail Ahmed, to which they disclosed that they had taken the revenge and then all four accused fled away . Thereafter complainant and PWs went inside School and found the Store Room opened, they also noticed a boy who was identified to be Suhail Ahmed, electric wire was wrapped over his neck and a plastic bag was lying there, however , Suhail Ahmed was bleeding from his ears and nose and was lying dead. Thereafter , complainant leaving the PWs, came at Police Station and lodged the FIR against the accused.
4. After registration of the FIR, usual inves tigation was conducted in the case and on completion of investigation the I.O. submitted challan against the accused under sections 302, 34, P.P.C. Trial Court framed charge against the accused, who pleaded not guilty and claimed trial. At the trial, prosecution examined eleven witnesses to prove its case, who exhibited various documents and other items in support of the prosecution case. Thereafter prosecution closed its side. Trial court recorded statement of accused under section 342, Cr.P.C., in which they claimed false implication 'in this case and pleaded their innocence. They prayed for justice.
5. Learned Sessions Judge Nausheroferoz after hearing learned counsel for the parties and assessment of evidence available on record, vide impugned judgment dated 10.08.2006 convict ed and sentenced the appellant Barkat Ali and acquitted the co-accused as set out in preceding para in this judgment, hence this appeal.
6. The facts of the case as well as evidence produced before the trial court find elaborate mention in the impugned judgment, therefore the same are not reproduced here so as to avoid duplication and un-necessary repetition.
7. Mr. Ubaidullah Ghoto learned counsel for appellant/accused Barkat Ali contended that there was no direct motive against appellant/accused Barkat Ali; that there was no eye-witness to the incident; that toy has been foisted upon the appellant/accused. However , in his support he relied upon case reported in PLD 2019 SC 527 .
8. On the other hand, learned counsel for appellant/complainant in Cr. Acquittal Appeal argued that the deceased was not lastly seen with the accused persons but when accused were coming out from School, they were seen by the complainant and witnesses; that the extra judicial confession of accused was made before the said witnesses; that the accused was arrested on same day and toy was recovered from the poss ession of accused Barkat Ali on his pointation; that the statement of accused was not recorded by the police before leaving Police Station that co- accused Mujahid made confessional statement before learned Magistrate in which he implicated himself including appellant Barkat Ali, but the learned trial court acquitted accused Mujahid who made confessional statement. In support of his contention, he relied upon cases reported as The State v. Abdul Ghaf far (1996 SCMR 678), Abdul Rauf v. The State and another (2004 Cr.LJ 12), Khadim Hussain v. The State (2004 PCr.LJ 1102), Khurram Malik and others v. The State and others (PLD 2006 SC 354), Amal Sherin and another v. The State through A.G. NWFP (PLD 2004 Supreme Court 371), Mst. Dur Naz qnd another v. Yousif and another (2005 SCMR 1906 ) Zulifqar Ahmed v. The State (2006 PCr.LJ 91) Fazal Wadood v. The State and others (2006 SCMR 1911) Binyamin alias Khari and others v. The State (2007 SCMR 778), Ghulam Nabi v. The State (2007 SCMR 808), Mobashir Ahmed v. The State (2009 SCMR 1133), Zaffar Abbass v. The State (2010 SCMR 939), Faisal Mehmood and another v. The State (2010 SCMR 1025 ) Gul Muhammad v. The State (2011 SC MR 670), Muhammad Ishaque v. The State (2018 YLR 786), Iftikhar Ahmed v. The State (2019 SCMR 1224 ) and Allah Dino alias Baboo v . The State (2019 YLR 390 ).
9. Mr. Dhan Raj learned counsel for respondent No.2 in Cr. Acquittal Appeal has contended that only piece of evidence against respondent/accused Mujahid Ali was confession and it was disbelieved by the trial court; that the confessional statement was recorded by the learned Magistrate by violating the rules. He relied upon cases of Doulat v. The State (PLD 2013 Sindh 223), Imran v. The State (2015 MLD 46) and Hashim Qasim and another v . The State (2017 SCMR 986 ).
10. Mr. Bakhshan Khan Mahar Advocate for respondent No.3 in Cr. Acquittal Appeal has argued that respondent/accused Ashfaque was of 11/12 years at the time of incident and his name does not appear in the confessional statement made by co-accused Mujahid Ali; that no direct motive against respondent/accused Ashfaque; that after acquittal, he has got double presumption of innocence; that the PWs are interested witnesses and no Peon or employee of the School was examined by the prosecution during investigation. He lastly argued that neither the, judgment of learned trial court is perverse or arbitrarily .
11. Learned Additional P.G. has submitted that the Doctor has certified that deceased died because of electric shock. Learned Additional P.G. has referred to the evidence of complainant particularly his cross-examination, wherein complainant has deposed that he was reluctant to capture the accused persons when accused disclosed that they have committed the murder of his brother . Learned APG has frankly stated that the prosecution case is doubtful.
12. We have heard the learned counsel for the parties, learned State counsel and have perused the record available before us. First of all, we would like to take up the issue raised in criminal jail appeal, challenging the conviction awarded to the appellant Barkat Ali. The conduct of complainant and witnesses in this case is to be adjudged at the touch stone of Article 129 of the Qanun-e-Shahadat Order , 1984, which is reproduced below:- "129. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
13. In the case in hand, the witnesses have claimed to have seen the accused at the door of School, but we are unable to understand that as to what were the circumstances which prevented them from catching hold of accused, who had committed murder of deceased. We are not prepared to believe that eye-witnesses remained calm though accused were empty handed. The recovery of toy on the pointation of accused was of no significance and the place of recovery was not under exclusive possession of the accused. Surprisingly , the toy was not even sealed at the place of recovery by the I.O. which is also fatal to the prosecution case. It is not the case of prosecution that the witnesses had gone to School on some information. In absence of such evidence, the prosecution witnesses can be held chance witnesses, as incident took place in a School and their houses were situated at some distance. A chance witness, in legal parlance is the one who claims that he was present on the crime scene at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business , place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily , is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.
Reliance is placed upon the case of Sughra Begum v . Qaisar Pervaiz (2015 SCMR 1 142).
14. The incident was un-witnessed as no one had seen the accused while committing the murder of the deceased through electric shock. Place of incident is situated in thickly populated area and no independent witness has been cited as witness by the prosecution though the School is surrounded by shops and houses. There was no direct motive with the appellant Barkat Ali and motive is shrouded in mystery . The recovered articles i.e. pistol, live bullets, wire, toy are alleged to have been recovered from the house on the pointation of appellant Barkat Ali were not sealed on the spot and same has been recovered after three days of the arrest of the appellant. There was no mention of toy in FIR and same has also not been put to identification test throu gh complainant and witnesses.
P.Ws. have given contradictory evidence regarding places searched by the compl ainant party after missing of the deceased. Complainant deposed in his evidence before learned trial court in cross-examination that the accused jointly informed them about the revenge taken by them, whereas PW Muhammad Bachal has deposed in his examination-in-chief that they reached at the gate of Modern School at 4.30 pm, they saw accused Barkat, Sardar , Ishfaq and Mujahid were coming out from the gate of School, where they informed that they have taken the revenge. Mashir Arshad Ali has deposed that accused Barkat Ali produced one bag from room of his house, he himself opened said bag from which he produced one pistol of 32 bore, 8 live bullets of G-3, 12 empty bullets of 7.62 bore and one toy, however , in his cross-examination he admitted the fact that the case property produced in court is not sealed. The prosecution has not produced any piece of independent witness to establish the motive of the case against the appellant. No shred of evidence, much less tangible, has been led by the prosecution to distinguish the role of the appellant from the acquitted co-accused. The appellant has not confessed his guilt before the competent court of law and after acqu ittal of co-accused, to whom same and similar role like the appellant has been attributed, how in absence of strong corroboratory evidence, the appellant can be convicted on the same quality of evidence, which has been disbelieved qua the co-accused.
15. In case of Tariq Ali Shah and another v . The State and others (2019 SCMR 1391 ), it has been held that:- "The High Court itself viewed the above injury with suspicion for being incompatible/ inconsistent with the weapon, seized with appellant's arrest. It casts away the hypothesis of appellant's arrest soon after the occurrence alongside the weapon of offence. Witnes ses do not appear to have come forward with the whole truth and given the formidable past hounding both sides, patent discrepancies cannot be viewed as trivial, particularly , after prosecution's failure qua three of the co-accused albeit with somewhat different roles. It would be unsafe to maintain the conviction. Criminal Appeal No.299-L/2017 is allowed; impugned judgment is set aside; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case. As a natural corollary , Criminal Appeal No.298- L/2017 is dismissed."
16. In another case of Shewaiz Rasoot alias Shabi v. The State and others (2019 SCMR 1448 ), it has been held that:- "3. The appellant is identically placed, on all fours, with Muhammad Rani and Shah id Afzaal, co-accused; they had been assigned joint firing on the deceased; in the absence of any specific motive no distinction can be possibly drawn so as to distinguish, even obliquely appellant's case from his co-accused. Though not assigned any harm to the deceased or the witnesses, acquitta l of Khawar Ali, Muhammad Boota, Qaniar -uz-Zaman, Asad Ullah and Muhammad Luqman stated to be in the company and community of intention with the appellant and acquitted co- accused, firing side by side, does cast a dark shadow upon prosecution's case. This Court for a variety of reasons, each valid, acquitted Muhammad Rafi, co-accused from the charge; these includ e issue of identity of assailants during the fateful night; improbability of witnesses' detour preceding assault and arrival exactly at a point of time when firing commenced; human incapacity to capture minor details in an extreme crises situation involving no less than eight persons and lack of motive etc.; these are squarely applicable to the case of present appellant as well and thus we have not been able either to draw any distinction or take a different view. Sauce for the goose is sauce for the ganger . Resultantly , Criminal Appeal No.135-L/2017 is allowed, impugned judgment is set aside. The appellant shall be set at liberty , if not required in any other case."
17. Not only this, the maxim "falsus in uno, falsus in omnibus " is attracted in the present case as the case of the appellant Barkat is identical to the case of the co-accused who were acquitted by the trial Court. When the trial Court acquitted the co-accused on one set of evidence, the same could not be used against the appellant unless a clear distinction was noted by the Court, which in this case was missing. This maxim had been made applicable in dispension of Criminal Justice by the Hon'ble Apex Court in its landmark judgment dated 04.03.2019, rendered in case reported as PLD 2019 SC 527 . It was held in the case supra that:- "We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of civilized society and thus, any compromise on truth amounts to a compr omise on a society's future as a just, fair and civilized society . Our ' judici al system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall; without any latitude, invariably be proceeded against for committing perjury ."
18. Even otherwise, it is a well-settled principle of criminal law that it is for the prosecution to prove its case against the appellants/accused beyond reasonable shadow of doubt and if there is any doubt in the case, the benefit of the same shall accrue in favour of the appella nts. Such principle was set out in the case of Tariq Pervez v. The State (1995 SCMR 1345 ). Moreover , the Hon'ble Apex Court, in the case of Faheem Ahmed Farooqui v. The State (2008 SCMR 1572 ) has been pleased to observe that:- "It needs no reiteration that for the purpos e of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt."
(emphasis supplied)
19. So far the Acquittal Appeal No. 39 of 2006 is concerned it transpires that the trial court has assigned sound reasons for recording acquittal in favour of respondents/accused Sardar alias Bangali, Mujahid Memon and Ashfaq Channa. After acquittal, acquitted accused have acquired presumption of double innocence. It is pertinent to mention here that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attacked to the order of acquittal. The Courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading and non reading of evidence, such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earne d and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice and the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. It .is also to note that judgment of acquittal should not be interjected until the findings are perverse, arbitrary , foolish, artificial, speculative and ridiculous. The Hon'ble Supreme Court of Pakistan, in the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554 ) has been pleased to observe that:- "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is double. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary , foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion, should not be upset, excep t when palpably perverse, suffering from serious and material factual infirmities."
20. In the case of Muhammad Zafar and another v. Rustam Ali and others (2017 SCMR 1639 ), the Hon'ble Supreme Court of Pakistan has held that:- "We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents Nos.3 to 5 are borne out from the record. No misreading of evidence could be pointed by the counsel for the complainant/ appellant and learned Additional Prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos.2 to 5 which reasons have not been found by us to be arbitrary , capric ious or fanciful warranting interfering by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed."
21. In a more recent judgment of the Hon'ble Apex Court in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315 ), it was observed that::
2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses' presence in the hospital; there is no medico legal report to postulate hypothesis Of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No. 504/GB. There is a reference to Messrs Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witnes s, however , given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless the impugned view is found on the fringes of impossibility , resulting into miscarriage of justice freedo m cannot be recalled. Criminal Appeal fails. Appeal dismissed.
22. Keeping in view the above discussion, we have come to the conclusion that prosecution has failed to prove its case, beyond reasonable doubt, against the accused and that they were rightly acquitted of the charge. Therefore, Criminal Acquittal Appeal No. 39 of 2006, being meritless, is dismissed. It is pertinent to mention here that the respondent/acquitted accused Sardar alias Bangali had expired during the penden cy of instant Cr. Acquittal Appeal and proceedings against him were abated vide order dated 7.3.2013. However , as far as the case of Barkat Ali is considered, he is also acquitted of the charge for the reasons supra. Consequently , present Criminal Jail Appeal No. S-64 of 2006 is allowed and the appellant Barkat Ali is acquitted of the charge. He be released forthwith if not required in any other custody case, vide short order dated 5.11.2019. These are the reasons for short order of even date.