' MUHAMMAD ASHRAF LEGHARI, J.--- Through this Special Anti-Terrorism Acquittal Appeal No,171 of 1999 the State has called in question the acquittal judgment dated 4-11-1999 passed by Judge Special Court (Anti-Terrorism) No,1, Karachi Division, in Special Case No,338 of 1999 (State v.
Muhammad Tauseef alias Taimoor and another) under sections 302, 460 and 34, P.P.C. Arising out of Crime No,8 of 1999, Police Station Kokhhrapar.
2. Brief facts of the case as narrated by complainant Attaullah are that he was a.Teacher in Government School and was residing alongwith his wife deceased Mst. Saeeda Khatoon in House No,D-30/2, Malir Extension, Khokhrapar, Karachi.
3. On 9-3-1999 complainant and deceased left the house for their respective jobs. At about 3-55 p.m. When the complainant came back to his house he found the door of house unlocked. He went inside the house and found his wife Mst. Saeeda Khatoon dead. He had certain injuries on her person and was lying on the bed. He further, noticed that stove was on and half-cooked Chapati was lying over it in the -kitchen. The complainant went out of the house and informed the neighbours. He ultimately informed P.W. Abdul Majeed and went to police station alongwith him for lodging the report. He thereafter, went to the house of his sister. On return to his house he found the police available in the house making the enquiries. The police obtained certain articles from the Wardat including the blood-stained pillow.
4. On 13-3-1999 the complainant produced blood-stained Chhuri and piece of marble which was recovered in presence of Mashirs. On the same day police arrested accused Touseef on D-Area Extension Road, Malir, Karachi. On 14-3-1999 co-accused Rehan was arrested on the basis of statement made by accused Touseef. On 15-3-1999 S.I.P. Had recorded statement of P.W. Kashif. On 20-3-1999 accused Touseef produced some golden ornaments in presence of Mashirs. The police at the end of investigation submitted challan in the Court of Anti-Terrorism Court No,1, Karachi.
5. At the trial prosecution examined P.W.1 Dr. Ismat Nasar, Exh.8, P.W.2 Ataullah, Exh.11, P.W.3 Abdul Majeed, Exh.13, P.W.4 Jalil Ahmed, Exh.16, P.W.5 Muhammad Daud, Exh.19, P.W.6, A.S.-I. Muhammad Hussain, Exh.21, P.W.7 Kashif, Exh.23 and P.W.8, S.I.P. Muhammad Rawal Khattak, Exh.24.
6. On conclusion of trial the respondents were found not guilty for the offence and were acquitted by the trial Court as stated above.
7. Mr. S. Jalil A. Hashmi learned A.A.-G. For the State has contended that there was ample evidence against the respondents. Learned trial Court has misconceived and misappraised the said evidence. He urged that there is strong circumstantial evidence on the record involving the accused in the commission of offence but the learned trial Court misread the same and came to an erroneous conclusion. Learned A.A..-G. Has further pleaded that the trial Court has discarded the strong circumstantial evidence of the recovery of ornaments and has committed an error for passing the impugned judgment and the reasons advanced by him are illogical.
8. The perusal of record shows that there was no ocular evidence in respect of the murder of Mst.
Saeeda Begum. The complainant saw his wife dead on the bed with some injuries on her person.
The dead body was referred to a doctor, who found 8 injuries on her person and her final opinion was that deceased had died due to said injuries caused by hard blunt substance except the injuries Nos.4, 6 and 7 which appeared to have been caused by sharp-cutting weapon.
9. Admittedly there is no eye-witness of this occurrence. The only evidence against the accused is that the police recovered some golden ornaments on his pointation after his arrest. The complainant had not seen the incident. He had not specified the alleged robbery of alleged ornaments in F.I.R. He for the first time informed the police on 14-3-1999 that some of the ornaments are missing from his house. The complainant did not mention this fact in F.I.R. He did not disclose this fact to police for five days and then on recovery of said articles the same were not put to identification before any Magistrate so as to make this piece of evidence reliable. The reference can be made to a case of Shafi Muhammad v. The State PLD 1971 Kar.
721. The police has not supported this version of complainant on the above stated point. The other point, which the prosecution is going to rely upon is the recovery of Chhuri, which was allegedly, borrowed by accused Touseef had obtained from P.W. Kashif. This said Chhuri was shown to P.W.
Kashif but he denied this fact saying that it was not the same, which he had handed over to the respondent Touseef. Nobody had seen the respondents coming into the house or coming of the same or going around the scene of offence at the relevant time. Merely because some of the ornaments which did not find figure in the F.I.R. Were recovered would not be safe to award conviction against the respondent. However, evidence of P.W. Abdul Majeed who is Mashir of recovery of blood-stained articles from Wardat. P.W. Jalil Ahmed who is Mashir of arrest and two Police Officers S.-I. Hussain and S.I.P. Rawal Khattak are of no help to prosecution as they do not know anything personally regarding the incident.
10. There is much difference in consideration of an appeal against conviction and acquittal. While dealing with the appeal of acquittal we have to look into the impugned judgment whether the same is perverse and on the perusal of evidence no other conclusion could be made except that the accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice. Otherwise this Court is always slow to set aside the acquittal. After the acquittal of accused, double presumption of innocence is attached to the said judgment.
11. This case is based on circumstantial evidence only. The guiding factors for awarding sentence on the basis of circumstantial evidence are settled by the superior Courts. The Court has always to be more cautious on awarding the sentence relying upon the circumstantial evidence. The presumption and conjecture, howsoever, strong they may be, the Court has to be vigilant about the same while discussing the matter involving such situation. The links in such situation should be in chain and no link should be missing but all the circumstances and link must lead to the guilt of accused and nowhere else. We are afraid this case is not one of those circumstances.
12. The principles have been laid by the apex Court in a case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCM R 1928 wherein their Lordships have held as under:-- "(i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;
(iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) that unless the judgment of acquittal is perverse and the reasons therefore, are artificial and ridiculous, the Supreme Court would not interfere; and
(v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose."
' The same view was earlier taken by the Honourable Supreme Court in a case of Yar Muhammad and 3 others v. The State 1992 SCM R 96 as under:-- "The High Court was hearing an acquittal appeal and the principles of setting aside an order of acquittal are now well-settled. Unless the judgment of the 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, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
13. We find that the trial Court has rightly acquitted the respondents due to the discrepancies stated above. The principles for setting aside acquittal are now well-settled. The impugned judgment is neither perverse, illegal, ridiculous nor there was misreading of evidence leading to miscarriage of justice. The view also gets support from cases of Imran Hussain v. Amar Arshad and 2 others 1997 SCM R 438 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408.
14. The reference can also be had to an unreported case of D.B. Of this Court comprising both of us The State v. Haji Lal Muhammad and others Special Anti-Terrorism Acquittal Appeal No,103 of 1999.
15. For the foregoing reasons we had dismissed this Special Anti-Terrorism Acquittal Appeal No,171 of 1999 in limine by a short order, dated 25-11-1999, these are the detailed reasons for the same.