NAIMATULLAH PHULPOTO, J. Respondent/accused Afaque Ahmed was charged, prosecuted and acquitted under sections 302, 34, P.P.C. The trial was conducted by Mr. Zafar Ahmed Khan Sherwani, Sessions Judge, Hyderabad who passed the judgment of acquittal on 18.12.2006. Feeling aggrieved by the aforesaid judgment of acquittal, complainant Sarfraz Ahmed filed Criminal Adquittal Appeal No.D-15/2007 whereas State filed separate Acquittal Appeal bearing No. D-120/2007 against the order of acquittal. We propose to decide both the appeals by this single judgment.
2. The prosecution case as emerged from the recitals contained in first information report and the evidence adduced during the trial is as under:-
3. Brief facts of the prosecution case are that on 22.03.2004 complainant's younger brother Sajid was going to the shop of deceased and reached near it, he heard commotion and saw from some distance that the deceased had been caught hold by respondent/accused Afaque Ahmed and his brother-in-law Muhammad Ismail (absconder) whereas his brother Akhlaque Ahmed (absconder) was inflicting Chhuri blows and his neighbourer PW Arif was trying to save him. Before reaching near the deceased brother, the culprits had caused him Churri blow on right side of neck, who fell down. Sajid went to his house to inform his brother Sarfraz Ahmed (complainant). Receiving this information, he also reached at the place of incident and saw that the deceased had been removed to the hospital. He proceeded there immediately but deceased succumbed to the injuries. The complainant remained busy in his funeral arrangements for two days, then went 'came to the police station to lodge the FIR. It was recorded vide crime No.27/20004 under sections 302, 34, P.P.C.
It is pertinent to mention that although the above FIR was registered after two days of the incident by ASI Muhammad Tarique Qureshi, but prior to that he had reached at the hospital on the day of the incident and examined the dead body and prepared such inquest report vide inquest report (Ex.9-A) and the mashirnama (Ex.9-B) and requested the Medico-legal Officer for postmortem vide letter at Ex.13-A. The police had reached at the hospital on the information of Sajjad on telephone, however, no formal FIR was registered by the police. Investigation was entrusted to SIP Sanaullah.
He along with PC Yaseen and ASI Nasir Baloch proceeded to the place of incident, which was situated at Bhai Khan Chari near a Sweet Meet Mart on the road side and secured blood stained earth there from vide memo (Ex.9-C). He recorded the statement of the PWs namely Sajjid, Muhammad Naeem and Muhammad Arif. On 24.03.2004, he secured the blood-stained clothes of the deceased in presence of ASI Nusrat and Muhammad Yaseen vide Memo (Ex.11-A). On 25.03.2004, ASI Tarique along with PC Muhammad Ali (PWs 9 and 7) during patrolling in the locality, arrested the accused Afaque Ahmed when he was present in street near Saint Marry School. He was arrested vide Memo (Ex.14-A) and brought to the Police Station and handed over to SIP Sanaullah, who interrogated him, however, no Memo of arrest was prepared by him. On 01.04.2204, he volunteered to produce blood-stained Churri and led the police party to water drain, it was secured in presence of mashirs Muhammad Yakoob and Muhammad Rafique vide Memo (Ex.15-A).
There was no record that how the crime weapon i.e. Churri was sent to the Chemical Examiner as well as the blood-stained clothes and blood-stained earth for reports. After usual investigation challan was submitted against the accused.
4. Trial court, framed charge against the accused at Ex.5. Accused pleaded not guilty and claimed to be tried.
5. In order to prove it's case, prosecution examined 12 witnesses. Thereafter, prosecution side was closed.
6. Statement of respondent/accused under section 342, Cr.P.C. was recorded in which he claimed false implication in this case and denied the prosecution allegations. Accused produced some documents in his defence. However, accused declined to give statement on Oath in disproof of prosecution allegations.
7. Trial court after hearing the learned counsel for the parties and on assessment of evidence, by judgment dated 18.12.2006 acquitted the accused/respondent as stated above.
8. Appellant/complainant Sarfraz Ahmed is called absent despite issuance of notice. However, Mr. Shahzado Saleem Nahiyoon, D.P.G. for the State contended that the allegation against the respondent/accused Afaque Ahmed was that he caught hold the deceased at the time of incident and the main accused caused knife blows to the deceased. He further pointed out that main accused has been declared proclaimed offender. Learned D.P.G. could not satisfy the court that the judgment passed by the trial court was either perverse on facts or vitiated in law.
9. On the other hand, Syed Tarique Ahmed Shah Advocate for respondent/accused argued that it is always easy to assign the role of catching hold to the deceased but it is difficult to prove. He has submitted that respondent was falsely involved in the case due to enmity and the trial court has rightly accused the respondent.
10. After hearing the learned counsel for the parties, we have perused the judgment of the trial court. The relevant portion is reproduced hereunder:- "From the evidence of the above three witnesses, it has become clear that in the evidence of two witnesses i.e. Arif and Muhammad Zulfiqar, the evidence of third witness PW Sajjad has been discredited because both of them have specifically deposed that none of the brothers of the deceased was present at the place of the incident. They both have not implicated the present accused Afaque Ahmed in the commission of the offence that he was even present holding one hand of the deceased, therefore, the evidence of the brother of deceased namely Muhammad Sajid is of no use as he has involved the accused on account of enmity with him being brother of the deceased. Even otherwise, it is not comprehendable that he being real brother of the injured would not intervene when he himself saw the accused persons inflicting injuries, but would prefer to proceed to inform his brother leaving his brother in the clutches of the accused providing a chance to them to kill him. Had he intervened either he would have save him from the injury or atleast he would have removed his brother to the hospital for medical aid in place of removing by the Mohalla fellows. This fact is further strengthened from the fact that the FIR in which the name of the present accused was also mentioned is delayed by two days without justification in that regard although the police had reached at the hospital immediately after the incident on the same day, but for unknown reason, no formal FIR was recorded, possibly for the reason that the complainant was in consultation with each other to involve as many persons as they can."
11. We endorse the view of acquittal taken by the learned trial judge. According to the case of prosecution role of catching hold to the deceased was assigned to the respondent/accused. It is always easy to assign the role of catching hold but it was not proved at the trial. Principle accused has been declared absconder. There was no evidence that respondent/accused shared common intention with main accused.
12. It is well settled that that High Court can only interfere in an appeal against acquittal if the view of the learned trial judge is either manifestly perverse on facts or vitiated in law. If the view taken by the trial judge can reasonable be said to be arrived at, this court does not substitute it with its own view as held in the case of The State v. Abdul Khalique and others (PLD 2011 Supreme Court 554).
Moreover, principles for appreciation of evidence in appeal against acquittal are different from the appeal against conviction. No case for interference is made out. Aforesaid appeals against the judgment of acquittal are without merits and same are dismissed.