ABDUL MAALIK GADDI, J.---Through this appeal filed under section 417, Cr.P.C, the appellant has sought the indulgence of this Court to set at naught the judgment dated 30.06.2016 passed by the learned Sessions Judge, Badin, in case FIR No.197 of 2013, registered at Police Station Badin, for offences under sections 302 and 34, P.P.C., whereby the learned Judge after full dressed trial acquitted the accused respondents Nos.1 and 2 by giving them benefit of doubt.
2. The facts of the prosecution case in brief are that on 09.08.2015 at 1730 hours, complainant Ghulam Mustafa son of Ahmed Udhejo appeared at Badin Police Station and lodged his FIR, stating therein that he was doing his business of Kabar . They were three brothers. One of them namely , Muhammad Siddique, aged about 50 years, was unmarried and was watchman over the decoration Shop of Shakeel Udhejo. On 06.07.2013, complainant went to the house of his brother Muhammad Siddique with work, where the complainant and his brothers Muhammad Siddique and Sher Ali were chatting with each other . In the meantime, a call rang on the mobile phone of Muhammad Siddique, on which he immediately went out of the house and the complainant returned to his house.
On 07.08.2013 in the morning, the labourer of shop namely Fateh alias Mour son of Babo Mallah informed the complainant through phone that the dead body of deceased Siddique was lying on the open plot of the shop, on which he was watchman, hence, he should come there. Complainant and his brother Sher Ali and nephew Mushtaque alias Bablo son of Siddique reached to the open plot of shop of Shakeel Udhejo at 09:00 a.m. They saw that dead body of deceased Siddique was lying on a Table (Sandal) and his face was on western side and feet were on eastern side having a sign of circular over his neck. The marks of dragging on the earth were also seen.
The complainant side informed the police. Police came over there, prepared necess ary proceedings and shifted the dad body to Civil Hospital, Badin, where the postmortem examination of deceased Muhammad Siddique was conducted and then the dead body was buried. The complainant side searched on their own but could not succeed; hence the complainant lodged the FIR.
3. After the arrest of the accused and completion of investigation, the accused/respondents were put on trial where the provisions of section 265-C were complied with and the accused/responden ts were finally charge sheeted.
However , they professed innocence and claimed trial.
4. The prosecution in order to prove its case against the accused/respondent s produced and examined ten witnesses and closed its evidence. Thereafter , statements of the accused/resp ondents were recorded under section 342, Cr.P.C. but their stand was complete and false implication. Howe ver, neither they produced any defence evidence, nor opted to be examined on oath under section 340(2), Cr .P.C.
5. On evaluating the materials brought on record, the learned trial Judge found the accused/respondents not guilty to the charge and thus acquitted them through the impugned judgment, which is now under challenge by the complainant/appellant through the appeal in hand.
6. Learned Counsel for the appellant/complainant argued, with great vehemence, that the impugned judgment of acquittal in favour of the accused/respondents is not based on correct legal premises on the following grounds:--
(i) that the impugned judgment passed by the learned trial Court is based on misreading and non-reading of the evidence, by not considering the circumstantial as well as material aspects of the case and without applying the judicious mind.
(ii) that the prosecution has examined ten witnesses in this case and all the prosecution witnesses have fully supported the prosecution version and their evidence has not been shatter ed during their lengthy cross- examination, even the eye witnesses of the case have implicated the accused/re spondents in the commission of the alleged of fence but the learned trial Court has ignored these important aspects of the case.
(iii) that the impugned judgment of acquittal is based on surmises and is existing on non-reading and misreading of the evidence, non-application of relevant laws, which is against the established norms of appreciation of evidence, therefore, the same is liable to be set-aside and the respondents/accused be convicted and sentenced according to the law:
(iv) that the ocular account of the incident is furnished by two prosecution witnesses, which is supported by circumstantial and medical evidence, therefore, the case is fit for conviction of the respondents/accused.
7. Learned A.P.G while opposing this appeal has submitted that the judgment passed by the learned trial Court is not the result of.misreading and non-reading of the evidence but is based upon good reasons and has been passed after proper appreciation of the evidence on record. He therefore, seeks non-interference of the said judgment.
8. We have heard the learned Counsel for the parties at length and after going through the record, come to the conclusion that the prosecution has failed to establish its case against the respondents/ accused for the reasons, that the incident had taken place on 06/07.08.2013, whereas the FIR of the incident was registered on 09.08.2013 by the complainant namely , Ghulam Mustafa, who is the brother of deceased Muhammad Siddique after the delay of two days of the incident. Perusal of FIR and the evidence available on the record, it appears that the names of the respondents/accused are not appearing in the FIR and the delay , if any, in registration of FIR has also not been satisfactorily explained by the complainant. In this matter , as many as 10 witnesses have been examined but on perusal of their evidence, it appears that there is no direct evidence against the accused/respondents. We have also perused the statements of P.Ws Sher Ali and Mushtaque recorded under Section 161, Cr.P.C, who have stated that P.Ws Punhoon and Yaqoob informed them that they saw the accused while committing the murder of deceased Muhammad Siddique at the place of incident around 10:00 p.m. on 06.08.2013. This was the first time when the names of the present accused came on record during the investigation. The 161, Cr.P.C. statements of P.Ws Punhoon and Yaqoob were record ed on 15.08.2013, in which they have stated that they saw both the accused dragging and throttling the dece ased when they went to meet him and saw the incident from the holes of the door of plot behind the decoration shop. On 18.08.2016 both the accused were arrested in presence of mashirs Haji Abdul Sattar and Muhammad Yousuf under memo Ex-12/C from near bridge of watercourse ward No.6, Badin Town. On 20.08.2016 both the accused led the police party to the recovery of rope used for commission of the offence and one mobile phone of "Q" Com pany belonging to the deceased from heap of grass from the cattle pond in presence of same mashirs. We have also perused the evidence brought on record, which was collected against the accused comprising upon (i) ocular evidence, (ii) circumstantial evidence and (iii) medical evidence. The ocular evidence is furnished by two PWs namely Punhoon and Yaqoob. They have stated that on 06.08.2013 at about 10:00 p.m., they went to the deceased in order to meet him. When they reached the shop, where deceased used to be watchman, they knocked the door. Despite knocking the door, there was no reply from inside, thus, they peeped from hole of the door and saw that accused Ali Nawaz and Ayoob Bhurgri were strangulating the deceased with rope. They started knocking the door forcefully , upon which both the accused emerged from inside and they threatened them that if they narrated the incident to anybody else, they will face the dire consequences. Here, it is surprising to note that these P.Ws. allegedly seen the accused persons while committing the murder of deceased Muhammad Siddique but they did not report the matter to anybody else including the complainant B immediately and later on they first time disclosed this fact on 15.08.2013 after the delay of 15 days of the incident. During course of the arguments, we have specifically asked a question from the learned Counsel for the appellant/complainant as to why these two witnesses, when saw the incident on 06-07.08.2013, did not inform the complainant or Police about the incident, he has no answer with him. It is also surprising to note that the statements of P.Ws Punhoon and Yaqoob under Section 164, Cr.P.C. have been recorded on 29.08.2013 after about 14 days of their statements recorded under Section 161, Cr.P.C. on 15.08.2013. Thus, it appears that these witnesses are setup witnesses. This aspect of the case has also been elaborately discussed by the learned Presiding Officer of the trial Court in its impugned judgment. Besides, it reveals from the evidence that P.W Punhoon is close relative of the deceased as well as of the complainant, whereas P.W. Yaqoob was the employee of Shakeel Udhejo at Mehran Shadi Hall. So far as, the circumstantial evidence which has come on record against the accused is recovery of the alleged rope from heap of grass on the pointatio n of accused on 20.08.2013 in presence of mashirs. P.W/mashir Muhammad Yousuf (Ex-12) has though supported the memo of inspection of dead body (Ex-12/B), memo of place of incident (Ex-12/C), memo of arrest (Ex-12/D), memo of recovery (Ex-12/E) despite that he has stated that the memo of arrest of accused and memo of pointation of recovery was signed by him at police station and memo of pointa tion of recovery of ligature (rope) and mobile phone was prepared and signed by hin at the police station. Thus, both the memos have lost their evidentiary value. Moreover , it is alleged that the recovery was made on the joint pointation of both the accused and there is plethora of case laws that recovery which is made on the pointation of more than one accused on their joint pointation is inadmissible in evidence and cannot be relied upon. In this respect, we are supported by the dictum laid down by the honourable Supreme Court in the case of Gul Jamal and another v . The State (1980 SCMR 654 ),
9. It is settled principle of law that the parameters for the appeal against acquittal are much narrower than the case of the appeal against conviction. It is also settled principle of law that the judgm ent of acquittal should not be interfered until and unless the findings are perverse, arbitrary and speculative as held by the honorable Supreme Court in the case of The State v. Abdul Khaliq and others (PLD 2011 SC 554). Further , the scope of interference in the appeal against acquittal is narrow/slow and limited because in the acquittal, the presumption of the innocence is significantly added to the cardinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty . In other words, the presumption of innocence is doubled as held by the honourable Supreme Court of Pakistan in the above referred judgment.
10. In the case reported as Mirza Noor Hussain v. Farooq Zaman and 2 others (1993 SCMR 305), it is observed by the honourable Supreme Court, which reads as under:- "....the judgment of the trial Court is supported by sound reasons and this Court cannot substitute its own findings in place thereof unless that the findings are 'artificial', 'shocking, 'ridiculous', 'based on misreading of evidence' and 'leading to miscarriage of justice'. "
11. In another case reported as Yar Mohammad and 3 others v. The State (1992 SCMR 96), the honourable Supreme Court has observed as under:- "Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty , there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr. P. C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
12. In the case of Ghulam Sikandar and another v. Mamr az Khan and others reported in PLD 1985 SC 11, it was held as under:- The Courts often in such like difficult situation have applied test of "impossibility" by asking questions; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place." and "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquittin g the accused provided both the conclusions are reasonably possible." And "The important test visualized in these cases, in this behalf was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
13. In view of what has been discussed above, the order of acquittal in the instant case was neither the result of misreading or non-reading of the eviden ce, nor it could be termed as so perverse as to result of miscarriage of justice. The learned trial Court has elaborated so -many reasons, which influenced it to conclude the matter , hence, the judgment dated 30.06.2016 passed by the learned trial Court cannot be interfered and the same is hereby maintained. These are detailed reasons of our short order dated 17.09.2018 announced in open Court, whereby this acquittal appeal was dismissed.