KAMRAN HAYAT MIANKHEL, J. This criminal acquittal appeal is directed against the judgment dated 19.02.2020, passed by the learned Sessions Judge, Mansehra, whereby the respondents/accused were acquitted.
2. Brief facts of the case are that on 27.03.2018 at 1400 hours complainant namely Arshad (PW-11) in injured condition in emergency ward of King Abdullah Teaching Hospital, Mansehra reported the matter to the local police to the effect that on that day at about 1100 hours he went to the house of his younger brother Zulfiqar, in the meantime, his brothers Dilnawaz, Imtiaz and Iftikhar appeared in front of house of Zulfiqar and called him to come out of the house, they were armed with pistols and after climbing the gate, they made firing and with the fire shot of Dilnawaz alias pupo, he was hit and sustained injuries on his right leg near knee joint, while his brother Zulfiqar escaped unhurt.
Besides, said Zulfiqar the occurrence was witnessed by inmates of the house, complainant was taken to hospital for treatment. Motive behind the occurrence is stated as dispute over marriage of said Zulfiqar, hence, case FIR No.74 dated 27.03.2018 registered under sections 324/337-F(v)/34 PPC read with section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at police station, Khaki District Mansehra.
3. On completion of investigation, challan was put in court against the respondents/accused.
Thereafter learned trial court has acquitted the respondents/ accused vide order impugned herein.
4. We have considered the submissions of learned Assistant Advocate General and have gone through the material brought on the record.
5.The principles for appreciation of evidence in appeal against the acquittal are now well settled, for, an accused is presumed to be innocent and if after trial, he is acquitted, he earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is non- reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty. Reliance in this context is placed on the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96). The Hon'be Apex Court of Pakistan has observed that: "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".
In the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), 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 heavy 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."
In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."
In the case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), the Hon'ble Supreme Court has held that: "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 not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others, 2003 SCMR 477 "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading / non-reading of evidence...... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Hon'ble Supreme Court has held that: "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or a shocking conclusion has been drawn. Moreover, in a number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities".
6. Perusal of record reflects that Mst. Robina Bibi (PW-9) stated in his statement that respondents/ accused knocked the door, pelted stones and thereafter all the three respondents/accused scaled over the main gate, they were armed with pistols and started firing upon her husband, Arshd, with the intention to kill. Conversely, Zulfiqar Ahmad (PW-10) stated that the respondents/accused came to his house and knocked the door and that he opened the door and found all the three armed with pistols, they started abusing him and asked him to come out, he closed the door, they pelted stones into the house as well as upon the gate of the house, they made aerial firing firstly and thereafter they brought a stair from the house of Imtiaz accused and with the help of the stair they climbed over the roof of the gate, and that Dilnawaz accused made fire upon the complainant, who was injured on his right leg. Complainant/injured namely Arshad when appeared as PW-11 stated that accused party knocked the door of the house of his brother Zulfiqar and asked them to come out from the house and then pelted stones in the house of his said brother, meanwhile his brother Zulfiqar rushed towards the gate and bolted the gate inside, and that the accused party resorted to aerial firing and then climbed over the gate of the house of his brother Zulfiqar with staircase, from there they also made firing with the intention to kill them. From the abovementioned referred statements of complainant and the alleged eyewitnesses, it is evident that there are contradictions with respect to the mode and manner regarding commission of the offence not only among themselves but also with respect to the mode and manner as alleged by the complainant in his in his initial report Ex:PW2/1. Even there is no mentioning of pelting of stones by the accused party in said report of the complainant. Furthermore, Mst. Robina Bibi (PW-9) in her cross examination admitted that from outside the gate of the house, inside the house is not visible and that there is no stair outside the gate and self-stated that accused has used a stair to climb over the gate and in this regard Zulfiqar Ahmad (PW-10) in his statement stated that the accused party brought a stair from the house of accused Imtiaz and with the help of the same they climbed over the roof of the gate, whereas when the investigation officer (PW-12) was cross examined in this respect, he admitted that the boundary walls cannot be climbed without any stair and that he had not taken into possession any stair and that no stair was taken into possession by the previous investigation officer as well. Moreover, Tufail Muhammad (PW-3) is the marginal witness of recovery memos Ex:PW3/1 and Ex:PW3/2, vide which the investigating officer took into possession injury sheet, medical report and blood stained white colour shalwar of the complainant/injured as well as pistol which was allegedly recovered on the pointation of accused Dilnawaz, however, from the cross examination of this witness it is clear that he only accompanied the complainant/injured from King Abdullah Teaching Hospital Mansehra to Ayub Teaching Hospital, Abbottabad. The PW also stated that his statement was not recorded by police and that he was not called by police for any other proceedings in the case. This prosecution witness on one hand stated that he has not done any other proceedings in the case while on the other hand he is a marginal witnesses of the abovementioned recovery memos. Likewise, it is also not clear that for what purpose witness named above was present there in the police station at the time of preparation of recovery memo as well as how he went to the spot where the recovery of 30 bore pistol was effected, which remained unanswered. As far as recovery of crime pistol on the pointation of accused Dilnawaz coupled with report of FSL is concerned, the record transpired that the crime empties were allegedly recovery by police on 27.03.2018 through memo Ex:PW3/1, which were sealed in parcel No.2, and the same was sent to the FSL through application dated 27.03.2018.
PW-14 constable Sabir Hussain stated that he took parcel No.2 of the instant case vide road receipt No.43/21 (Ex:PW14/2), which was returned by the concerned official to him, however, this witness in his cross examination admitted that he was not given any separate receipt for the return of said parcel No.2 and that it was crossed on the receipt and was returned to him. He further admitted that the official concerned who crossed parcel No.2 has not mentioned his name or signature beneath the cutting. Likewise, PW-15 Muhammad Bashir FC stated that on 30.04.2018 he took parcels No.4 and 2 to Arms Expert, FSL Peshawar vide road receipt No.51/2 (Ex:PW15/1) and deposited the same in the FSL. Now a question arises that when once parcel No.2 containing crime empties was already sent to the FSL then why and to whom it was returned. Moreover, allegedly the crime pistol was recovered on 26.04.2018 and was sent to FSL by the investigating officer vide application Ex:PW12/8 on the same date but according to the FSL report Ex:PW12/9 it was received by the FSL on 30.04.2018 that is to say after about four days of its dispatch. It is for the prosecution to show the reason regarding receipt of the pistol in question by FSL after about four days of its dispatch but it failed to do so. All these factors create dent in the prosecution case. I have seen the impugned judgment which reveals that the learned Trial Court has properly dealt with the evidence of the parties having pointed out the material discrepancies, infirmities, and glaring contradictions etc. therein.
7. Under these circumstances, I am of the view that the learned trial court after appreciating the evidence in its true perspective has come to the conclusion that the prosecution has failed to prove its case against the respondents (accused) beyond a reasonable doubt and acquitted the respondents of the charge and such a conclusion of an acquittal arrived at by the learned trial court based on appreciation of evidence cannot be termed to be arbitrary, fanciful, artificial, shocking and ridiculous, therefore, the impugned acquittal judgment does not call for any interference in this criminal acquittal appeal which being devoid of merit is liable to be dismissed.
8. It is well settled law that even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts. Reliance is placed on case titled Ghulam Qadir Vs. The State (2008 SCMR 1221), wherein, it has held that: "It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity crating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of charge-makers the whole case doubtful.
Merely because the burden is on accused to prove his innocence it does not absolve the prosecution to prove its case against the accused beyond any shadow of doubt in this duty does not change or vary in the case."
Reliance is also placed on case law reported as 2009 SCMR 230 and 1995 SCMR 1345.
9. Accordingly, for the reasons stated hereinabove, this Court is of the considered view that the prosecution has failed to prove its case beyond any reasonable doubt against the respondents/ accused, hence, the instant appeal being devoid of substance is hereby dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.