Muhammad Rafique vs Muhammad Akram, etc

ALI ZIA BAJWA, J. By means of instant appeal filed under Section 417, Cr.P.C. acquittal of respondent No.1 through impugned judgment pronounced by learned Additional Sessions Judge, Liaquatpur, District Rahim Yar Khan has been challenged. Respondent No.1 was tried and acquitted in case FIR No.395/2016, dated 06.11.2016, offence under Section 302, PPC, registered with Police Station Shedani, District Rahim Yar Khan.

2. Arguments heard; record perused.

3. Before dilating upon the merits of the case it would be appropriate to observe the scope, brief history and guidelines governing the appeal against acquittal.

Appeal against Acquittal

4. The law regards the conviction of a single innocent person as infinitely more serious than the acquittal of many guilty persons.^[1] Appeal against acquittal is an extraordinary remedy and restricted to the cases of grave miscarriage of justice. 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 heavy onus on the prosecution to rebut the said presumption.^[2] Under Article 9 of the Constitution of Pakistan, 1973 right to life and liberty is fundamental right guaranteed to a person, therefore, once an accused, who is presumed innocent until proven guilty, duly tried and acquitted by the court of competent jurisdiction, his acquittal cannot be easily interfered with. Very exceptional and compelling reasons are required to dislodge the double presumption of innocence attached with that person which he acquires after his acquittal. Superior Courts of this country have been found to be reluctant to interfere with a judgment of acquittal. It was observed in Zeenat Sultan^[3] by the revered Supreme Court of Pakistan that: 'It cannot be overemphasized that the right to life is the basic right that human beings possess.

Once a charge for a capital offence, duly tried, results in acquittal, the accused person acquires a very precious right and he should not therefore be put in jeopardy of his life ............. '

History of Appeal against acquittal

5. The Code of Criminal Procedure, when originally enacted in the year 1861, did not provide for any right to appeal against acquittal to anyone including the State. It was in the Code of Criminal Procedure, 1898 that Section 417 was inserted enabling the Government to direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.^[4] Intention of the legislature, behind bestowing the power of reversal of judgment of acquittal only upon the High Court, is indicative of the fact that it was considered a matter of great caution and care. Only High Court was trusted to exercise such power to reverse an order of acquittal, that too, in exceptional circumstances.

6. Originally under section 417 Cr.P.C. no right of appeal against acquittal was provided to complainant or an aggrieved person in state case and same was introduced by amending the Code of Criminal Procedure, 1898 through the Act XX of 1994 Code of Criminal Procedure (Second Amendment) Act, 1994, notified on 14th November, 1994.^[5] Prior to the insertion of subsection (2-A) in section 417, Cr.P.C. the appeal could only be filed by the Provincial Government by issuing directions to the Public Prosecutor or in case an order of acquittal was passed in a case instituted upon a direct complaint the appeal could be filed in the High Court after grant of special leave to appeal from the order of an acquittal. However, aforementioned amendment in the Code was brought whereby the right to file an appeal was extended to any person aggrieved by the judgment of acquittal passed in state case.

7. In India prior to 2009 amendments, which the Indian Code of Criminal Procedure underwent, a victim did not have any right to file appeal against order of acquittal and the right to prefer appeal was provided only to State, District Magistrate and a Complainant of a Complaint Case. The Code of Criminal Procedure of India had not provided any right of an appeal to a victim against acquittal. It would appear from a bare perusal and plain reading of Section 372 of the Indian Code that the right to appeal against acquittal, under the proviso thereto, has been provided only to the "victim" and not to the complainant or the informant. The term 'victim', for the first time, had been included by way of amendment to Section 372 in the year 2009, whereby a right to file an appeal against acquittal was conferred upon him.

Fundamental Principles governing the appeal against acquittal

8. In celebrated and landmark judgment, rendered in Ghulam Sikandar^[6], esteemed Supreme Court of Pakistan, after referring plethora of judgments on the subject, laid down fundamental principles governing appeal against acquittal. Speaking through distinguished Judge Mr. Justice Muhammad Afzal Zullah, esteemed Supreme Court of Pakistan expounded the guidelines which have been reiterated and consistently followed by the apex Court and this Court. Aforementioned principles are, no doubt, bedrock of our criminal jurisprudence pertaining to appeal against acquittal. It would be beneficial to recapitulate the principles, laid down in various judgments of apex Court, governing the appeal against acquittal. After benefitted from the catena of judgments dealing with the appeal against acquittal, it would be advantageous to summarize the principles governing the appeal against acquittal.^[7] I. Parameters to deal with the appeal against conviction and appeal against acquittal are totally different because the acquittal carries double presumption of innocence and same can be reversed only when found blatantly perverse, illegal, arbitrary, capricious, speculative, shocking or rests upon impossibility.

II. It is well settled law by now that in criminal cases every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such double presumption of innocence.

III. Acquittal recorded by the trial court based on cogent reasons and not perverse would not be interfered. Appellate court should not lightly interfere with judgment of acquittal unless it arrives at a definite conclusion that evidence has not been properly analyzed and court below acted on surmises or conjectures.

IV. Acquittal cannot be reversed merely because a contra view is possible, where the findings of the trial court are not unreasonable, improbable, perverse or patently illegal. Where on the basis of evidence on record two views are reasonably possible, appellate Court should not substitute its view in the place of that of trial Court.

V. The presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.

VI. Judgment of acquittal can be reversed where trial Court committed glaring misreading or non- reading of evidence and recorded its findings in a fanciful manner, contrary to the evidence brought on record.

VII. The appellate Court, while dealing with an appeal against acquittal, must proceed with the matter more cautiously and only if there is absolute certainty qua the guilt of accused considering the evidence on record, acquittal can be interfered with or disturbed.

Merits of the Case in hand

9. Perusal of record available on the file reveals that Muhammad Rafique/complainant (PW-6) lodged the above-mentioned crime report against the accused/respondent No.1 by narrating that he and his brother Imam Bakhsh were involved in the business of selling vegetables. On 06.11.2016 at 9:30 a.m. after purchasing vegetables from the market, Imam Bakhsh riding on one motorcycle while the complainant along with Shafique Ahmed (given up) and Abdul Sattar (PW-7) riding on another motorcycle left for their houses from vegetable market. On their way respondent No.1 intercepted Imam Bakhsh (deceased) and by giving hatchet blows inflicted injuries on his person.

The prosecution witnesses shifted Imam Bakhsh to RHC, Khan Bela where he succumbed to the injuries. As far as presence of prosecution witnesses at the place of occurrence as claimed by them is concerned, admittedly the complainant and Shafique Ahmed (given up) are real brothers of the deceased while Abdul Sattar happens to be their nephew. Admittedly the respondent was not armed with any lethal/firearm weapon. Record reflects that he had reached the place of occurrence on foot and decamped in the same manner. However, the conduct shown by close blood relatives, that they did not make attempt to rescue the deceased or apprehend the assailant, on the face of it, is unnatural and makes their presence at the place of occurrence doubtful as rightly observed by the learned trial court.

10. It has also come on the record that police station was on the way in between the place of occurrence and Rural Health Center Khan Bela, where according to prosecution version, the injured was evacuated for medical treatment. However, none of the prosecution witnesses opted to report the matter while crossing the police station despite of the fact that there were four persons including complainant with deceased at that time. All the prosecution witnesses, in categorical terms, stated that when deceased was shifted to hospital in injured condition, clothes of all the PWs were smeared with blood, however those clothes were never produced before the investigating officer or during the course of trial. It has further come on record in the statements of PW-6 and PW-7 that when Imam Bakhsh received injuries he fell down on the ground and in falling condition he was given hatchet blows by respondent No.1. However, no mud/dust was observed by the Investigating Officer at the time of preparing injury statement. One Javed Gabbar who allegedly shifted deceased along with prosecution witnesses to hospital in his car, neither joined the investigation nor his car was taken into possession by the Investigating Officer to corroborate the prosecution case. It is also an admitted fact that none of the prosecution witnesses informed the police qua the occurrence rather some unknown person from hospital informed the police which again does not appeal to common sense. Moreover, names of PW-6 and PW-7 were not mentioned in the relevant column of inquest report (Exh.PD).

11. Perusal of record also reflects that while making their statements during the course of trial, the eyewitnesses made dishonest improvements in order to justify their presence at the place of occurrence at the relevant time, which were duly confronted with their previous statements.

Learned trial court rightly appreciated this aspect of the case while passing the impugned judgment.

12. Bare perusal of the crime report reflects that it was alleged by the complainant therein that deceased had filed an application with the local police against respondent No.1 over a monetary dispute. The complainant while making his statement on oath stated that even the respondent was arrested by the local police on the application moved by the deceased. However, nothing is available on the record to substantiate motive behind the occurrence as alleged by the prosecution. Neither any police record was produced nor any independent witness appeared before the trial court in support of motive part of the case. Moreover, Investigating Officer/PW-10 while appearing in the dock totally negated the existence of alleged motive mentioned in the crime report and advanced through the statements of PW-6 and PW-7. Thus, learned trial court rightly discarded the motive alleged by the prosecution.

13. As far as medical evidence is concerned as no specific seat/locale of injuries were mentioned in the crime report, the same being corroborative in nature, in isolation, does not establish nexus of respondent No.1 with the occurrence. Similarly, the recovery of hatchet (P-1) being confirmatory in nature was rightly kept aside by the learned trial court when it had arrived at the conclusion that ocular account is not straightforward, the prosecution witnesses failed to establish their presence at the place of occurrence and their statements do not ring true.

14 In view of above stated facts and circumstances the learned trial court was well within the remit of settled law to acquit respondent No.1. Learned counsel for the appellant has failed to point out any misreading or non-reading of evidence, glaring illegality, perversity, unreasonableness or arbitrariness in the impugned judgment. In the light of principles as summarized in the preceding paragraphs we are persuaded to hold that no grounds are available warranting interference with the impugned judgment. The impugned judgment rendered by the trial court is well reasoned and based on judicial prescriptions laid down in various judgments of the apex Court. There is no finding contained in the impugned judgment inviting interference by this Court. The instant appeal is squarely devoid of any merits, which is accordingly dismissed.

^[1]The Code of Criminal Procedure tenth Edition by SC SARKAR ^[2]Muhammad Shafi vs. Muhammad Raza and another - 2008 SCMR 329 ^[3]Zeenat Sultan vs. Mumtaz Khan and 9 others - PLD 1994 SC 667 ^[4]https://www.legalserviceindia.com/legal/article-3859-why-victim-cannot-appeal-against- inadequate-sentence-under-section-372-cpc-.html