AFTAB AHMED GORAR, J.---This criminal acquittal appeal has been filed by appellant/complainant Fida Hussai n Shahani against the judgment dated 10.09.2016, passed by the learned V-Additio nal Sessions Judge, Larkana, in Sessions Case No.133 of 2015, re-State v. Dr. Abdul Qadir Memon and others, emanating from Crime No.92/2014, registered at Police Station Hyderi, Larkana, under sections 302, 149, P.P.C. whereby the respondents, namely , 1)
Dr. Abdul Qadir son of Abdul Khaliq Memon, 2) Mohammad Siddique son of Mohammad Saleh Kumbhar , 3) Dr. Rekha wife of Ramesh Kumar Oad, 4)- Dr. Shakela Asghar daughter of Ali Asghar Abbasi, 5) Dr. Ibrahim Asghar son of Ali Asghar Abbasi, 6) Ali Asghar son of Ali Nawaz Abbasi and 7) Ibrahim son of Gul Hassan Channo, were acquitted of the charge.
2. On 26.07.2014 complainant Fida Huss ain Shahani lodged FIR at Police Station Hyderi, Larkana, stating therein that his wife Mst. Shabiran was suffering from stomach infection, therefore, on 17.6.2014 the complainant, his son Imran and brother-in-law Mukhtiar Ali took complainant's wife Mst. Shabiran to Abbasi Medical Centre, Naudero Chowk, Larkana for her treatment, where they enquired from Asghar Ali Abbasi, owner of said medical centre, about Dr. Farzana Abro, who replied that another lady doctor , namely , Dr. Rekha being better than Dr. Farzana Abro was available in the centre and further asked them to get their patient admitte d in his centre. Next day i.e. on 18.6.2014, in the morning time, owner Asghar Ali Abbasi informed the complainant that at noon time his patient will be operated by Dr. Rekha Oad and told them to deposit the operation charges/fee of Rs.60,000/-, which' was deposited by the complainant with Asghar Ali Abbasi. At noon time, Asghar Ali Abbasi appeared and asked the complainant party to shift their patient to Operation Theatre, hence the complainant, his son and brother-in-law brought Mst. Shabiran at the door of Operation Theatre, wherefrom Shakeela and Ibrahim (daughter and son of Asghar Ali Abbasi) took away Mst. Shabiran inside the Operation Theatre. After sometime, they brought complainant's wife Mst. Shabiran out having operated her and admitted her in room No.10 and thereafter the health condition of complainant's wife started deteriorating, which fact was informed by the complainant party to Asghar Ali Abbasi, who informed them that the patient was operated by his daughter Shakeela and son Ibrahim and the patient would be all right in few days. On 19.06.2014, at 10.00 p.m. complainant's wife Mst. Shabiran died due to intense pain. The complainant after buria l of his wife, met Dr. Rekha Oad, who informed him that she having not conducted operation of his wife Mst. Shabiran was unaware of such operation. The complainant then came to know that Shakeela and Ibrahim (son and daughter respectively of Asghar Ali Abba: i) had not yet passed MBBS, hence the complainant lodged FIR to the above ef fect.
3. After registration of FIR, police investigated the matter and on completion of usual i westigation challan was submitted showing accused Dr. Abdul Qadir on mil and accused Dr. Rekha Oad, Ibrahim Channo, Mohammad Siddiq were shown as absconders, whereas accused Ali Asghar , Ibrahim Abbasi and Shakeela were let-of f by placing their names in column No.2 of the challan, who were subsequently joined.
4. At the trial, prosecution in support of its case, examined complainant Fida Huss ain at Ex.11, who produced FIR at Ex.11/A; PW2 mashir Abdul Hameed at Ex.12, who produced mashirnama of place of incident at Ex.12/A; PW-3 Imran at Ex.13; PW-4 SIO Zulfiqar Ali at Ex.15, who produced entry No.15 at Ex.15/A, verification letter dated 07.08.2014 at Ex.15/B, letter dated 22.08.2014 at Ex.15/C, letter dated 04.08.2014 at Ex.15/D; PW-5 I.O.
Mohammad Yaseen at Ex.17, who produced order dated 13.10.2014 and certificate at Ex.17/A and 17/B, letter to M.S. dated 14.10.2014 at Ex.17/C, application dated 16.10.2014 at Ex.17/D, order dated 16.10.2014 at Ex.17/E.
5. The respondents/accused in their statements under section 342, Cr.P.C. denied the prosecution allegations and claimed to have been falsely implicated.
6. On the assessment of evidence adduced by the prosecution and other material brought on record, the learned trial Court vide impugned judgment dated 10.09.2016 acquitted the respondents/accused, which has been challenged by the appellant/complainant through this criminal acquittal appeal.
7. Learned counsel for the appellant/com plainant argued that sufficient material was available on record to prove that the respondents/accused committed murder of deceased Mst. Shabiran by conducting her abdominal hysterectomy operation; that prosecution case stood proved through the ocular and medical evidence, but even then the learned trial Court on the minor lapses, defects and lacunas acquitted the respondents/accused without recording any cogent reasoning; that strong evidence is available on record making a full link and chain leading to the guilt of the respondents/accused, which has not been appreciated by the learned trial Court in its true perspective, resulting in failure of justice.
8. Learned Deputy Prosecutor General and learned counsel for the respond ents supporting the impugned judgment, contended that the learned trial Court has acquitted the respondents/acc used after thorough appraisal of the material available on record; and that no illegality has been committed by the learned trial Court in extending benefit of doubt to the respondents/accused, hence the findings of acquittal recorded in favour of respondents/accused do not call for interference in this acquittal appeal.
9. We have heard learned Counsel for the parties and with their assistance perused the entire record including the impugned judgment.
10. We have carefully scrutinized the prosecution evidence. We find that neither there was previous enmity between the parties nor it was a case of pre-planned murder . As per prosecution case, the deceased died on account of her abdominal, hysterectomy major operation conducted through unqua lified doctor(s). The learned trial Court recorded acquittal findings in favou r of respondents/accused, mainly for the reasons that the exhumation of dead body through the Magistrate and postmortem of the deceased were not allowed to be done, therefore, the cause of death of deceased could not be ascertained. The relevant observations recorded by the learned trial Court in the impugned judgment read as under:- "Surprisingly , depositions appear to be refinement, improvement and birth of second thoughts from the main contents of the FIR. It only leaves impression on me that the prosecution initially did not pursue the matter diligently so also did not co-operate with the provis ions of law by neither having the postmo rtem done nor responding to the exhumation call by the learned Judicial Magistrate, Larkana. Such negative appro ach from the very beginning by the prosecution has made the entire case doubtful and not a convincing one. Moreover , most of the contentions of the complainant and his PW appear to be their word of mouth narrations, without adducing any tangible proof showing that the lady expired due to negligence at the hands of the medical centre. Mere oral allegation in a case of homicide would not Sring anyone within the sphere of conviction. Apart from all this, the police during investigation also placed the names of accused namely Asghar Ali Abbasi, Ibrahim Abbasi and Shakeela Abbasi in column No.2 of the Challan. Accused Ibrahim Abbasi and Shakeela Abbasi have taken plea of alibi, which has also not been confronted by the prosecution by proving it to be otherwise. The prosecution has also not produced any death certificate showing that Mst. Shabiran died on the day and time, as alleged by the prosecution. Hence, date and time of death still remains a myster y. Whereas, names of other accused persons namely Dr. Abdul Qadir , Mohammad Siddiq and Ibrahim Chano do not transpire in the FIR. As far Dr. Rekha Oad, her name only appears as informative, nothing insinuating on her part. Conclusively , it's a dead case. Hence point No.2 is answered as not proved."
11. We may observe here that while deciding an acquittal appeal the appraisal of the evidence vis--vis an appeal against conviction is not on same plane. In an appeal against conviction, the evidence is appraised with a strict view, whereas the same rigid method of al praisement of evidence is not permissible while deciding an acquittal appeal. In such appeals, interference is only made when it appears that there is gross misreading of evidence which might cause miscarriage of justice. In acquittal appeals ordinarily the Courts are reluctant to interfere with the judgment of the trial Court and instead due weight is to be given to the findings of the trial Court, as the evidence has been appraised and a conclusion has been drawn.
12. It is settled principle of law that in case of acquittal by a competent Court of law after full-dressed trial presumption of double innocence is attached to the findings of acquittal and interference is only made when it appears that there is gross misreading of evidence which might cause miscarriage of justice. Reliance in this context is placed on case of Muhammad Shaft v. Muhammad Raza and another (2008 SCMR 329), wherein the Hon'ble Supreme Court of Pakistan has held that:- "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heuvy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."
13. In the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315 ), the Hon'ble Supreme Court has observed as under:- "It is by now well settled that acquittal once gained 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, freedom cannot be recalled."
14. On perusal of the available record, it appears that the learned trial Court has taken due care in acquitting the respondents/accused. The learned Counsel for the appellant despite arguing the appeal at full length has not been able to point out any piece of incriminating evidence, which could persuade us to hold that the findings recorded by the learned trial Court are against the evidence brought on record. The impugned judgment is neither perverse, nor arbitrary and nor against the evidence on record.
15. In view of above facts and circumstances, we do not find any substance in this criminal acquittal appeal, which is accordingly dismissed.
16. Before parting with the judgment, it is pertinent to mention here that photocopies of report of enquiry conducted into the matter on the complaint of appe llant/complainant by the enquiry committee and letter dated 14.6.2017 addressed to the Secretary , Govt. of Sindh, Health Department, Karachi, were filed by learned Counsel for the appellant through his statement dated 12.02.2018 and during the course of his arguments the learned Counsel emphasizing much on the said enquiry report, contended that the respondents/a ccused were found guilty in the said enquiry , therefore, they may he punished on the basis of such enquiry report. On query , learned Counsel admitted that the said enquiry report was never brought on record during trial. In such view of the matter , the enquiry report which was never exhibited during trial cannot be relied upon or made basis for awarding punishment by a Court of law and that too while dealing with an appeal against acquittal. Moreover , the enquiry is purely an administrative matter , therefore, the authority on whose direction such enquiry was conducted would only be competent to initiate appropriate action against the persons found guilty/responsible in the result of such enquiry . It would therefore be appropriate for the appellant/complainant to approach the conc erned quarters for taking action according to the conclusion and/or recommendations of enquiry committee.