AFTAB AHMED GORAR, J. The appellant being aggrieved and dissatisfied with the impugned Judgment dated 13-09-2018 passed by the learned IV-Additional Session Judge, Karachi [East] in Sessions Case No 626 of 2013 St. v. Musawir Ahmed and others, Crime No. 68 of 2013, Police Station Shah Faisal Colony , registered under sections 302 and 34, Pakistan Penal Code; delivered in favour of respondents; whereby appellant approached this court preferred appeal sought for interference by this court.
2. Mr. Fazal Haque Khan, advocate, representing the appellant contended that the judgment dated 13-09-2018 passed by the learned trial court is illegal, unlawful, arbitrary and is unwarranted by Law; per learned counsel impugned judgment is not sustainable in the eyes of Law; per learned counsel complainant and appellant are the eye-witnesses of the incident in whose presence accused killed deceased from their fire-arm; per learned counsel accused persons are habitual offender and they are involved in series of criminal cases, which itself shows that the accused persons are involved in the present case; per learned counsel the judgment is seems to be pass hasty without looking into the facts and the evidence available on record and on very short date it was decided in a slipshod manner; lastly learned counsel prayed that the instant criminal acquitt al appeal may be allowed and impugned judgment may be set aside.
3. Mr. Sagheer Ahmad Abbasi, Assistant Prosecutor General Sindh contended that the impugned judgment is in accordance with Law and is result of after appreciating entire prosecution evidence available on record; per learned APG the impugned judgment would not requires any interference by this court; per learned APG there are series of contradictions in the evidence of prosecution witnesses which would not be cured at this stage; per learned APG learned trial court has rightly arrived at the conclusion and had acquitted the accused persons from the charged offence; per learned APG there is nothing wrong with the impugned judgment; however learned trial Court after appreciating entire evidence of prosecution witnesses arrived at the conclusion that the accused persons are innocent and have been extended benefit of doubt as such the presumption of truth is attached with the impugned judgment as well; per learned APG the instant criminal acquittal appeal may be dismissed.
4. Heard and perused.
5. 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 accused were already under arres t in some other case and during interrogation they admitted the guilt of A present offence and arrested in the murder case but no such confessional statement any of the accused was recorded before any Judicial Magistrate. However identification parade of all accused persons was held through comp lainant Malik Shahzad on 15-05-2013 before learned Judicial Magistrate wherein he identified the accused persons to be culprits of this offence. In the instant case there are two eye- witnesses of the incident but identification parade was held through complainant only. Accused Zaki: Kala was arrested on 08-05-2013, accused Musawir Ahmed was arrested on 3.5.2013 and accused Muhammad Bilal was arrested on 6.5.2013, but identification parade was held on 15.5.2013 after inordinate delay and it is very important thing that at the time of preparation of identification memos the concerned Judicial Magistrate neither prepared the list of. Dummies nor mentioned the ages, descriptions, CNIC numbers and addres ses of the dummies in memo of identification parade, as such said memos at Ex.4/D to 4/F losses its credibility and not admissible under the Law .
We have been fortified with the case law reported in 1995 SCMR 127 in the case of Mehmood Ahmad and 3 others v . The State and another; it has been held as follows:- "----Ss.302/34 & 323---Appreciation of evidence---Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate---Non-explanation of the delay in making the report to might wish to implicate---Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statement s had rendered their testimony doubtful and unreliable which did not inspire confidence---Medical evidence by itself was unable to establish the identity of the accused---Non-associatio n of any independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation in this behalf by the prosecution, had made the recovery of the carbine and the empties unreliable and consequently the Ballistic report was of no importance--- Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value---Accused were acquitted in circumstances".
Reliance is also placed on 201 1 SCMR 37.
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6. Record further reflects that as per FSL report the crime weapon was recovered by the police from accused Musawir on 6.5.2013, but the Investigation Officer sent the said weapon to Forensic Science Laboratory on 27.05.2013; after lapse of 21 days and he has failed to explain such delay in his evidence.
We have taken guidelines form the case law reported in 2008 SCMR 707 in the case of Ali Sher and others v.
The State, it has been held as follows:- "----S. 302---Reappraisal of evidence---Se nding of crime-- Empties---Delay---Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory along with the crime weapons, 12 days after the recovery of alleged weapons---Effect---Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the ocular testimony ."
7. The complainant Malik Shahzad and PW-Muhammad Farooq who are alleged ly eye-witnesses of the incident have appeared in court and made improvements in their statements to strengthen the prosecution case and such improvement cast serious doubt on veracity of such witnesses and as such statements of eye-witnesses do not come within the established rule of acceptance of evidence and the same cannot be relied upon without any corroboration, which is lacking in the present case and the presence of complainant and eye-witnesses at the scene of occurrence is appearing to be doubtful as that the contradictions are existing between the version of complainant and eye-witness in relation to the incident, therefore there is no strong convincing independent and confidence inspiring evidence available with the prosecution to connect the accused persons with the commission of this offence. Apart from above, as alleged in the FIR when incident was happened the accused persons were with muffled faces; and has been identified correctly; by the complainant before the learned Judicial Magistrate, this glimpse is out of scope while applying judicious mind.
We have been fortified following by the case law reported in 1995 SCMR 127 , it has been held as follows:- "----Ss. 302/34 & 323---Appreciation of evidence---Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate--- Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence--Medical evidence by itself was unable to establish the identity of the accused--Non-association of any unable independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation in this behalf by the prosecution, had made the recovery of the carbine and the empties unreliable and consequently the Ballistic report was of no importance---Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value --- Accused were acquitted in circumstances. Reliance has also been placed in the case of Muhammad lqbal v.
Abdul Hussain reported in 1994 SCMR 1928 .
8. It was prime professional obligation of the Police Officer/Investigation Officer to send blood stained earth, crime weapon, human blood for serologist report must be sent altogether . The Investigation Officer has sent the blood stained clothes as allegedly recovered; same were sent to the Forensic Science Laboratory; report received reflects that same were stained with human blood; the question would be arises that whether it was of the same group which was available on the clothes of the victim and the blood-stained earth. In this context we have been fortified with the case law reported in the case of Muhammad Asif v. The State reported in 2017 SCMR 486, reads as follows:- ----S.302 (b)---Qatl-i-amd--Articles sent to Chemical Examiner and serologist for examination--Practice to be followed by police---Mere sending of blood stained crime weapons to the Chemical Examiner and Serologist would not serve the purpose of the prosecution nor would it provide any evidence to inter link different Articles---Unless the blood-stained earth or cotton and blood-stained clothes of the victim were sent with the crime weapon for opinion of Serologist it could not be concl usively opined that it was human blood on the crime weapon, and that it was of the same group which was available on the clothes of the victim and the blood-stained earth/cotton--- Failure to follow such practice would make the opinion of Chemical Examiner G inconclusive, which could not be used as piece of corroboratory evidence.
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9. 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 to 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 examining 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 in questionable when it could not be said that acquittal was either perverse or that acquittal judgme nt 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 prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
10. We have noticed 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 is 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.