1. ' This Criminal Acquittal Appeal (hereinafter referred as an appeal) calls in question judgment passed by Additional Sessions Judge, Ghotki, dated 8th May, 1997 whereby he acquitted respondents Nos. 1 to 3 from a criminal charge arising out of Crime No,217 of 1985 Police Station Ghutki under sections' 302, 307, 404, 148 and 149, P.P.C.
2. ' Facts stated in F.I.R. Lodged by Haji Mughal are that he had two sons namely Ali Murad and Shah Nawaz. He and his brother Malhar jointly own 20 Jerbs of agricultural land in Deh Shikhani taluka Ghotki which was being cultivated by his brother and son. On the day of incident i.e, 10th October, 1985 at sun rise time he and his son Ali Murad and his maternal cousin Muhammed Hashim son of Misiri Shahani left their houses to purchase onion seed. Around 7-30 a.m. While they were still at Katcha Path leading to Adalpur two furlongs earlier from Pakka Path, all of sudden accused namely Allah Rakhio, All Murad, Qasim, Mumtaz and Abdul Ghafoor, all by caste Shahani came from bushes from forest on the southern side of path and were duly armed with guns and challenged the complainant and others. On their Lalkara they started running towards eastern side due to fear caused by such Lalkara, the accused persons fired behind their back, by chance the fires escaped.
3. Complainant, who hid himself in the bushes of the jungle, whereas his son Ali Murad a maternal cousin Muhammed Hashim received fire arm injuries. His son Ali Murad had Rs,7,000 with him meant for purchase of onion seed and wrist watch and both were taken by accused Allah Rakhio from his pocket and wrist. The boy namely Abdul Ghafoor who was going to the school was also hit and was injured while crossing the path on the bicycle. Accused ran away towards jungle which is on northern side. At the cries of complainant P.W. Bashir Ahmed son of Khuda Bux Shahani came running to whom the complainant narrated the facts. Complainant found his son and maternal- cousin dead. His son Ali Murad received injuries on the right leg and arm pit and his maternal cousin Mohammed Hashim sustained injuries at the back side of his head. Leaving P.W. Bashir Ahmed to take care of dead bodies he went back to his village and narrated the facts to his brother Malhar an nephew Ali Muhammed and thereafter, he went to the Nek Mard Abdullah Khan and finally came to the Police Station where he lodged the F.I.R.
4. ' Motive for the crime alleged is that about four and half months prior to the incident Ali Murad, brother of accused Allah Rakhio was said to be murdered due to spy information at the instance of complainant party and due to that motive accused Allah Rakhio murdered his son Ali Murad and his maternal cousin Muhammed Hashim.
5. ' After usual investigation police challaned accused Mumtaz and Abdul Ghafoor while accused Ali Murad, Qasim and Allah Rakhio were declared as proclaimed offenders by the trial Court.
6. Subsequently Ali Murad accused was apprehended and he was also charged.
7. ' Prosecution in order to prove the guilt of accused persons examined P.W. Dr. Amanullah vide Exh.10, who produced medical certificate of injured Abdul Ghafoor vide Exh.10-A and post-mortem report of deceased Ali Murad vide Exh.10-B and post-mortem report of deceased Muhammed Hashim vide Exh.10-C, letter of S.H.O. Police station as Exh.10-D. Complainant Haji Mughal was examined vide Exh.12, he produced his F.I.R. As Exh.12-A. P.W. Abdul Ghafoor was examined vide Exh.13.P.W. Bashir Ahmed vide Exh.14, Mashir Jatoi was examined vide Exh.15, who also produced inquest report of deceased Ali Murad and Muhammed Hashim and Mashirnama of place of wardat. P.W. Wasand Khan vide Exh.16 was examined who produced mashirnama of arrest of accused Abdul Ghafoor and Mumtaz vide Exh.16-A. P.W. Muhammed Bux Tapedar was examined vide Exh.17 and he produced sketch of place of wardat.
8. ' Learned trial Court held that Ali Murad and Muhammed Hashim were murdered and injured Abdul Ghafoor received gun shot injuries, further opined that the case against the accused persons is doubtful and extended benefit of doubt. The Court came to the conclusion that there is only one eye-witness i.e, Haji Mughal and it was unsafe to sustain conviction on his deposition alone.
9. Circumstantial evidence was declared not enough to warrant conviction. The trial Court further opined that the Investigating Officer was not examined. In relation to the motive although in the F.I.R. The complainant suggested motive against Allah Rakhio but in his deposition in Court he did not depose about that motive. Concluding the discussion the trial Court opined as follows: ' "After scrutining the evidence available on the record I am of the considered view that prosecution has not established the case against accused beyond any shadow of doubt. That they had caused gun shot Injuries to deceased Ali Murad, Muhammed Hashim and causing fire arm injuries to P.W.
10. Abdul Ghafoor as such points are replied as not proved."
11. ' Assailing the impugned judgment Mr. Habibullah Shaikh stated that accused Ali Murad was not asked to explain absconsion by the trial Court in statement under section 342, Cr.P.C. This strong circumstantial piece of evidence was not taken into consideration. Suffice to say that it is for the prosecution to establish the guilt of the accused persons beyond reasonable doubt. It is not for the accused to establish his innocence. Such argument on the face of it has no force.
12. ' His further contention was that the 'complainant who is eye-witness, father of one deceased and maternal-cousin of another has deposed about involvement of accused persons and it is the quality of evidence which according to him inspire confidence, and should have been sufficient to convict the accused persons. I am afraid such contention may not prevail in the given set of circumstances of this case. It is the case of prosecution that the accused persons were behind complainant party. They fired from the back while the complainant party was running ahead of accused persons. Complainant Haji Mughal saw the accused persons firing. It is also admitted that Haji Mughal is 75 years old there is no other eye-witness of the occurrence. He is also closed relative of deceased persons i.e, father and maternal cousin. According to the F.I.R. There is enmity although in deposition he has not mentioned about that enmity. Even in F.I.R. Motive has been attributed to absconding accused Allah Rakhio and not these respondents who were acquitted.
13. Keeping all these facts in my mind the trial Court was justified to ignore uncorroborated evidence of eyewitness.
14. ' There was no recovery made from any accused. Bullets recovered were not sent for the opinion of fire-arm and ballestic expert. Investigating Officer was not examined. These material particulars were taken into consideration by the trial Court while passing impugned judgment.
15. ' In my humble view, in a criminal acquittal appeal the innocence of accused persons is doubly re- enforced. Firstly, accused persons are presumed to be innocent unless proved guilty, and secondly, after the accused persons have undergone the test of trial and the Court finds them not guilty, as such, very strong grounds are needed to dislodge the opinion of the trial Court recording innocence of accused persons after trial. Such strong grounds are not available in this case which may warrant interference in criminal acquittal appeal.
16. ' Consequently, after hearing the learned counsel in open Court by a short order this appeal was dismissed in limine and the reasons recorded supra, are the basis for passing such order.