ABDUL MAALIK GADDI, J.---The captioned appeal is directed against the judgment dated 24.12.2012 passed by learned IIIrd Additional Sessions Judge, Hyderabad in Sessions Case No.530 of 2000, arising out of Crime No.65 of 2000 registered under sections 302, 324 504, 34, P.P.C. at Police Station A-Section Latifabad, Hyderabad, whereby the learned trial Court after full dressed trial and after hearing the learned counsel for the parties, acquitted the accused/ respondent Anwar alias T.T. son of Munawar Khan Pathan under section 265-H(1), Cr.P.C. by extending him benefit of doubt.
2. Brief facts of the case as disclosed in FIR lodged by complainant Muhammad Ali on 02.08.2000 at 1-25 a.m., are that on that night it was 11-45 O'Clock, his brother Maqsood Ali alias Shera informed him and his brother Ahmed All that when he reached near Madressah Taleem-ul-Quran, he saw accused Anwar alias T.T. having a polythene bag containing milk threw the same on him. Complainant then took Maqsood Ali and his brother Ahmed Ali to complain where it is alleged that accused Anwar alias T.T. and Mushtaque took out T.T. Pistols from the folds of their respective Shalwars. Accused Anwar alias T.T. fired pistol shot on Ahmed Ali at his abdomen while accused Mushtaque fired pistol shot on Maqsood Ali alias Shera which was missed (bullet did not come out from pistol). The incident was witnessed by Mohallah people. Complainant further alleged that he and PW Maqsood Ali alias Shera took Ahmed Ali in a Rickshaw to Bhittai Hospital in the injured condition, where he died.
3. It may be pertinent to mention here that both the accused were charge sheeted on 22.08.2002 for offence under sections 302, 324, 504, 34, P.P.C. wherein accused Anwar alias T.T. was shown as absconder and the trial was faced by accused Mushtaque who after full dressed trial was acquitted by the trial court vide judgment dated 13.01.2007. Subsequently . on 30.11.2010 accused Anwar alias T.T. was arrested to face the trial of the murder of deceased Ahmed Ali.
4. A formal charge was framed against accused Anwar alias T.T. on 18.04.201 1 under sections 302, 324, 504, P.P.C. at Ex.31, to which he pleaded not guilty and claimed to be tried.
5. In order to substantiate its case, prosecution recalled and re-examined PW-1 complainant Muhammad Ali at Ex.03 and he acknowledged that he produced FIR at Ex.08, PW-2 Syed Muhammad Naeem Shah who was the witness who prepared the site sketch (Ex.22/A) being tapedar . PW-3 Naeemuddin (Ex.35), an eye-witness who confirmed to have recorded his statement under section 164, Cr.P.C. which he had produced as Ex.11. PW Maqsood Ali (Ex.36), the eye-witness and he endorsed to have produced his 164, Cr.P.C. statement at Ex.9/A. PW- 04 in whose presence the dead body of deceased was examined and he was the mashir of such memo (Ex.17). In his presence the police also inspected the place of occurrence (Ex.18) and he acted as mashir . The clothes of deceased were secured in his presence vide memo at Ex.19 and he acted as mashir . PW-05 SHO Arshad Hussain (Ex.38) the second Investigating Officer, who prepared and acknowledged the inspection form of the deceased Ahmed Ali, handing over the dead body of deceased to complainant and chemical examiner report at Exs.24 to 26 respectively . The MLO Dr. Muhammad Asif was not examined and the prosecution moved application under section 47 of Qanun-e-Shahadat at Ex.39 with a prayer to take on record the post-mortem report (Ex.14) as the said MLO was not traceable. The said application was allowed vide order dated 11.08.2012. It may be added that in the trial of accused Mushtaque, the said doctor appeared as PW-4 at (Ex.12) and had produced letter of police for conducting post-mortem of deceased Ahmed All and post-mortem report as Exs.13 and 14. Thereafter , the prosecution closed its side vide statement at Ex.40.
6. Statements of accused as provided under section 342, Cr.P.C. was recorded at Ex.41 wherein he denied all the prosecution allegations levelled against him and professed to be innocent. However , he did not examine himself on Oath nor produced any witness in his defence.
7. Mr. Hidayatullah Abbasi, learned counsel for appellant contended that the judgment passed by learned trial court is perverse and the reasons are artificial viz-a-viz the evidence on record; that, the grounds on which the trial court proceeded to acquit the accused persons are not supported from the documents and evidence on record; that accused has, directly been charged and the discrepancies in the statements of witnesses are not so material on the basis of which accused could be acquitted; that there is undeniable evidence and the two eye-witnesses namely Maqsood and Naeemuddin have fully supported the case of prosecution; that medical evidence is also corroborated with ocular evidence; that motive is also there and the accused / respondent had remained as absconder for about 12-1/2 years; that the case of present respondent is totally different from the case of acquitted accused Mushtaque; that learned trial court has based the findings of acquitta l mainly on the basis of minor contradictions on non-vital points of the statements of prosecution witnesses and that the prosecution evidence has not been properly appreciated therefore, under these circumstances, he was of the view that this appeal may be allowed and the accused involved in this case may be given exemplary punishment. In support of his contentions, he has placed reliance upon the cases reported as Wazid Moral v. Hashimullah and 4 others (1970 PCr.LJ 652), Muhammad Hanif v. The State (1991 PCr.LJ 2253) , Muhammad Pervez and others v. The State and others (2007 SCMR 670), Rob Nawaz and others v. The State (1991 PCr.LJ 826), Muhammad Basher v. Station House Officer, Okara Cants, and others (PLD 2007 Supreme Court 539) and Mst. Maryam Mirza v. M, M.
Kazzi and 2 others (1988 MLD 1651 ).
8. On the other hand, Mr. Zahoor A. Baloch, learned counsel appearing on behalf of the respondent Anwar alias T.T. mainly contended that the trial court on the same set of witnesses had acqui tted the co-accused Mushtaque vide judgment dated 13.01.2007, therefore, according to him on the basis of same set of witnesses this respondent cannot be convicted; that order of acquittal of co-accused Mushtaque against whom the recovery was also made has not been challenged by the complainant party before any Superior Court, therefore, according to him the said judgment has attained finality; that present respondent is innocent, he has not committed the murder of deceased and nothing was recovered from his possession, therefore, merely his abscondence from the court does ipso facto prove the case against him. During the course of arguments, he has taken to us towards various contradictions of the prosecution witnesses and was of the view that these contradictions are on material particulars of the case and on the basis of contradictory evidence no conviction could also be made to the present respondent; that PW Naeemuddin who is said to be eyewitness of the incident has not been named in FIR. Lastly , he has prayed for dismissal of instant criminal acquittal appeal.
9. Ms. Sam Memoir , learned A.P.G. has also supported the impugned judgment by arguing that the impugned judgment passed by the learned trial court is perfect in law and on facts and whole case of the prosecution is based upon surmises and conjectures, therefore, no reliance could be safely placed for conviction of the respondent. She further Submitted that there material contradictions is the evidence of prosecuti on witnesses which have been highlighted by the learned trial court in its judgment.
10. Arguments heard. Record perused.
11. After scanning the evidence of prose cution witnesses, we have come to the conclusion that prosecution has miserably failed to establish its case against the respondent beyond reasonable shadow of doubt. From perusal of the impugned judgment, it reveals that the trial court has recorded the finding of acquittal in favour of the respondent with sound and significant reasoning as accused / respondent was arrested on 29.11.2010 and after his arrest I.O. did not bother to further investigate the matter or to make any effort to recover the incriminating pistol or to find out other pieces of evidence against the accused/ respondent.
12. On perusal of the record, it appears that co-accused Mushtaque and the present respondent were allegedly present at the spot duly armed with pistol s and the present respondent caused firearm injury to deceased whereas accused Mushtaque fired upon PW Maqsood but the bullet did not come out from the pistol. It is noted that co- accused Mushtaque on the basis of same set of evidence has been acquitted by the trial court although recovery was also effected from his possession but no acquittal appeal has been filed against him, therefore, the judgment so far as the case of accused Mushtaque is concerned has attained finality , therefore, it has been rightly pointed out by learned counsel for the respondent that on the basis of same set of evidence when one accused has been acquitted, the present respondent could not be convicted.
13. Besides above, we have also noted number of contradictions in between the evidence of prosecution witnesses for example, complainant states In the FIR that he was the eye-witness of D the incident and when he came in witness box he denies this fact. During the course of arguments, we have specifically asked the question from learned counsel for the appellant that when complainant was the eye-witness of incident why he has denied his presence at the place of incident, he has not satisfactory answer with him.
14. It is also noted that Medical Officer who conducted the post-mortem of the deceased Ahmed Ali has not been examined before the trial court in this case nor he tendered post-mortem report, however we ourselves with the able assistance of learned counsel for the parties have gone through the post-mortem report which shows in Para 'C' of the External Examination as "No exit wound is seen". Admittedly , the Medical Officer who conducted the post- mortem has not been examined before the trial court nor he has produced the post-mortem report in evidence which appears to be fatal for the prosecution and created a dent in the prosecution case.
15. It has also come on record that the incident is alleged to have taken place on 1.8.2000 whereas the statements of both the eye-witnesses have been recorded on 12.8.2000 after the delay of abou t 11 days. No explanation in this regard has given by the prosecution. Furthermore, the evidence of both the eye-witnesses who were said to have witnessed the incident is also contradictory on material aspects of the case. The evidence came from their mouth is therefore, not confidence inspiring. It may also be noted that PW Maqsood Ali in his statement recorded under section 164, Cr.P.C. has stated the presence of complainant but the complain ant denies. Nothing has been recovered from the possession of accused/ respondent Anwar .
16. It further appears from the record that the name of PW Naeemuddin who is said to be eye-witness of the incident does not transpire in the FIR. As observed above, the statement of complainant is very much doubtful because in FIR he stated that he was present at the time of incident whereas in his evidence he deposed that he was not present. From the perusal of statement of doctor it appears that SHO brought the dead body to him whereas in FIR complainant stated that they took the injured to Bhitai Hospital. It also reveals that no question of abscondence was put to accused in his statement recorded under section 342, Cr.P.C. Accused Mushtaque has been acquitted in main case as well as in 13(d) A.O. case but no appeal has been filed against his acquittal.
17. We have also examined the reasoning assigned by the trial court and have come to the conclusion that the learned trial court has dealt with all aspec ts of the matter quite comprehensively in light of all the relevant laws dealing with the matter and now before us the appellant was unable to demonstrate that the impugned judgment by any means suffers from any illegality or miscomprehension or non-appreciation of evidence by way of documents available on record. Learned counsel for the appellant has also failed to point out any illegality or irregularity in the impugned judgment. This matter pertains to year 2000, almost 20 years have been passed and this appeal has been filed in the year 2013, therefore, it is noted that the respondent has suffered a lot and he has faced the agony of protracted trial and the reasons assigned in the judgment of acquittal appears to be sound on facts and law, therefore, need not to be disturbed. It is well settled law that once the accused was acquitted by the competent court of law after facing the agonies of protracted trial, then he would earn the presumption of double innocence which could not be disturbed by the appellate court lightly . The case law cited by learned counsel for the appellant has been perused and considered by us but the same are not applicable to the facts of the case in hand hence cannot be relied upon.
18. In view of the above, instant Crimina l Acquittal Appeal being devoid of merit, is hereby dismissed along with pending application, if any .