ABDUL MOBEEN LAKHO, J.---Instant Crl. Acquittal Appeal is directed against the judgment dated 22-11-2018 passed by Additional Sessions Judge Ubairo in Sessions Case No. 270 of 2013 Re. The State v. Qurban Ali Chohan offence under sections 302, 34, P.P.C. bearing Crime No. 65/2013 registered at police Station Daharki, whereby the respondent was acquitted of the charge.
2. Facts leading to disposal of this appeal are that on 18.05.2013 at 1430 hours complainant Imtiaz Ali lodged the FIR alleging therein that his elder brother Ahmed Ali Soomro aged about 27/28 years was running Zong Franchise Company being a proprietor. About one week before the incident, accused Qurban called complainant from his house and disclosed that he has love affair with accused Imran alias Raju Bhatti, who takes money from him, but Ahmed Ali brother of complainant was getting closer to accused lmran alias Raju and he should ask his brother not to develop any friendship with Imran alias Raju, otherwise he would kill him. On 15-05-2013, at about 2300 hours at Mian Ghaffar Colony Road near WAPDA Office leading towards People Chowk, accused Qurban Ali along with accused Imran alias Raju, Hakim and one unidentified accused armed with pistols in furtherance of their common intention, accused lmran alias Raju and unidentified accused caught hold of Ahmed Ali from his arms, accused Hakim pointed his pistol towards complainant party and then it is alleged that accused Qurban made straight fire from his pistol at Ahmed Ali, on his forehead and committed his murder.
3. Charge Ex. 2 was framed against the respondents, to which they pleaded not guilty and claimed trial.
Thereafter, prosecution led evidence of prosecution witnesses and recorded statements of accused in terms of section 342, Cr.P.C. and after hearing the parties vide impugned judgment acquitted the respondents of the charge.
4. Mr. Ubedullah Ghoto advocate for appellant argued, that specific part has been assigned to appellant Qurban Ali in the murder of the deceased, ocular evidence is corroborated by medical" evidence. He further submits that Qurban Ali respondent/accused has motive to kill the deceased as he had developed illicit relations with his friend Imran. He further argued that trial Court did not appreciate the evidence and recorded acquittal without any legal justification. He further argued that this is case of misreading and non-reading of evidence and evidence of the trial Court was perverse.
5. Mr. Arnanullah G. Malik advocate for respondent Qurban Ali submits that there was delay of three days in lodging of the FIR, for which no plausible explanation has been furnished. He further submits that prosecution story was unnatural and unbelievable, it was night time incident and source of light was weak source. He further argued that complainant and other eyewitnesses closely related to the deceased remained calm at the time of incident and their conduct was unnatural. He further submits that this is appeal against the acquittal, considerations in the appeal against acquittal and appeal against conviction are entirely different. He further submits that trial Court for the valid and sound reasons recorded the acquittal.
6. Mr. Shamsuddin N. Kobhar files power on behalf of respondent Imran alias Raju in Cr. Acquittal Appeal No.D- 178/2018 repeated the same arguments and stated that trial Court while assigning the sound reasons acquitted the accused and judgment of the trial Court is neither perverse nor ridiculous.
7. Mr. Shafi Muhammad Mahar, Deputy P.G supported the impugned judgment and argued that trial Court has passed detailed judgment while appreciating the evidence according to the settled principle of the law.
8. We have considered the arguments put forth by the learned counsel for appellant, learned counsel for respondents and Deputy P.G. so also perused the record of case.
9. It appears that prosecution has tried to establish that the medical evidence corroborate the ocular evidence.
We are not convinced at all if FIR would have been lodged immediately after the incident, and postmortem report which have been received after lodging of FIR, then certainly it would have some corroborative value. In the instant case first postmortem report was obtained, then complainant party on consulting and deliberating for three days and after three days story was fabricated in view of postmortem report, the time of incident, at how much distance the witness would have been able to identify the accused during night, and from how much distance it should be shown that accused had fired on deceased as held in the above cited case. Once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital Charge. Post mortem report does not lend any corroboration as the ocular evidence is not believable. In fact it contradicts the eye-witnesses who have stated that accused fired from the distance 1 or 2 paces but there is no charring and blackening on the injury. Medical Officer has stated that injury was caused from the distance of more than three yards. Similar is the position of crime weapon recovered on the pointing out of the accused. No doubt FSL report is in positive. However, in this regard it should be mentioned that empty was collected from the place of incident on the day of incident, but it was not sent to the FSL, for several days. It has been sent to the FSL along with pistol on the fifth day of alleged recovery of pistol.
Non-sending of bullet empty immediately after its recovery, and waiting till the recovery of pistol lend support to the contention of defense that after alleged recovery of pistol, bullet was fired from it and thereafter it was sent to FSL. Reliance has been placed by Mr. Saleem Akhtar Malik on 1999 SCMR 114 where it has been held.
"Matching of crime empties with the rifle allegedly recovered from the accused was a tainted piece of evidence as no explanation for retaining the crime empties in Malkhana for about a month and sending the same to the Laboratory after recovery of rifle has been given which had raised a presumption that the crime empties were prepared from the rifle after its recovery and that ocular evidence being itself unreliable could not be corroborated by abscondence of accused as a circumstances, itself require a corroboration could not corroborate any such circumstances.
10. In this regard it would be advantageous to refer the unreported judgment of honourable Supreme Court in Criminal Shariat Appeal No.07/2017 in which it has been held as follows;- "Much reliance was placed on the recovery of pistol from the appellant and empty from the place of occurrence, we observe that the empty was recovered on 11.02.2006 and pistol was recovered on 22.02.2006 and till the recovery of the pistol, the empty was not sent to the Fire Arms Expert and the empty and the pistol both remained together in the Malkahan and thereafter transmitted to the office of Forensic Science Laboratory. So the recovery is inconsequential. Even otherwise recovery alone is not sufficient for conviction and it is always turned as corroborative piece of evidence. It is settled law that one tainted piece of evidence cannot corroborate another tainted piece of evidence."
11. In the instant case empty was recovered on 15.05.2013, and pistol was allegedly recovered on 21.05.2013, where after, empty and pistol remained in possession of Investigation Officer and were received in the office of FSL on 29.05.2013. This delay creates and fortifies the doubt that empty was fired after so called recovery of pistol from it and then the same was sent to FSL. Learned defense counsel has contended that several newspapers reported that deceased was killed by unknown culprits. He submitted that accused does not have any connection or enmity at all with the deceased, and when police came under pressure they could not get clue of real accused persons, it was police who fabricated story and implicated the present accused when he could not satisfy the police by paying the money demanded by the police. Accused has produced certified copy of that petition under Section 491, Cr.P.C. filed by the father of juvenile accused Imran on 18.05.2013 in which it is mentioned that accused Imran was arrested by police on 15.0.2013, it appears that after filing of such petition police has shown the arrest of two accused on 18.03.2013 at 1530 hours.
12. Under these circumstances, we are of the considered opinion that prosecution has failed to prove guilt of the respondents, as such the trial Court had no option but to acquit the respondents/accused of the charge. The trial Court, after proper appraisal of material available on record and attending all the legal as well as factual aspects of the case, passed a very exhaustive and well-reasoned judgment. No misreading and non-reading could be pointed out by the learned counsel for the appellant in the judgment impugned warranting interference by this Court.
13. In case of Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803), the Hon'ble Supreme Court of Pakistan has observed as under: "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent Jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do no interfere unless the impugned order is arbitrary, capricious, fanciful and against the record".
14. For the foregoing reasons, we are of the considered view that no case for interference in the impugned judgment is made out. Therefore, the instant Crl. Acquittal Appeal No.D-177 and 178 of 2018 being meritless were dismissed on 08-10-2019.
These are the reasons for our short order.