' The State has challenged the judgment of acquittal, dated 27-7-1999 passed by Judge, Anti- Terrorism Court No,III, Karachi in Special Case No,993 of 1998 State v. Shahid Hafeez and others under section 302/109/34, P.P.C. Arising out of F.I.R. No,140 of 1998 of Police Station Sharifabad.
2. The case of prosecution as unfolded by complainant Professor Ghulam Nabi is that on 24-6-1998 he was on his duty at Village Konkar Gadap in Government Higher Secondary School when he received information through a neighbour that his wife Farhat Sultana (Inspector) was murdered by two boys at about 8-30 a.m. In front of his house by fire shots. He was further informed that she was removed to Abbasi Shaheed Hospital. On receipt of such information the complainant visited Abbasi Shaheed Hospital where he found his wife dead and the police officers were available there.
His F.I.R. Was recorded.
3. The police commenced investigation and arrested the present respondents. The police on conclusion of investigation submitted challan in the Court.
4. At the trial prosecution examined P.W.1 Dr. Mrs. Nafeesa Sohail Exh.15, P.W.2 Ghulam Nabi Exh.17, P.W.3 Iqbal Ahmed Exh.23, P.W.4 Muhammad Naveed, P.W.5, Shahzad Exh.26, P.W.6 Fareed Abbasi, Exh.28, P.W.7 Zafar Iqbal, S.I.P. Exh.30, P.W.8 Muhammad Zubair, Inspector and P.W.9 Muhammad Anwar, Inspector Exh.33.
5. Ultimately the trial Court came to the conclusion that prosecution had failed to bring home the guilt of accused and acquitted them on 27-7-1999.
6. It is contended by Mr. S. Jalil A. Hashmi learned A.A.-G. That the trial Court has misappraised and misread the evidence on record and the judgment impugned in appeal is the result of misreading of evidence. The learned A.A.-G. Further contended that prosecution had produced two eyewitnesses who have fully supported the case but their evidence is discarded for illogical reasons. Learned A.A.-G. Urged that trial Court had given much importance to the plea of alibi and has come to an erroneous decision, which has caused miscarriage of justice.
7. The record reveals that name of accused does not figure in the F.I.R., subsequent identification test has not been held. The features and the description of the culprits were not given in F.I.R. The statements of alleged eye-witnesses were recorded after 17 days with no explanation for such inordinate delay. Accused Shahid Hafeez is the employee of Pakistan Navy Dockyard and was on his duty at the relevant time. Accused Muhammad Aslam. Is employee of Karachi Water and Sewerage Board and he, too, was on duty on the day of incident. The arrest of accused as alleged by the prosecution is under dispute. The evidence of witnesses suffers from material discrepancies.
8. It appears that complainant Ghulam Nabi is not an eye-witness but he received information about the death of his wife and lodged F.I.R. Without naming any person. The alleged eye- witnesses of the incident are P.W. Iqbal Ahmed and Muhammad Nadeem who have stated that they had gone to Sharifabad Railway Crossing to see the ailing child of one of the relatives of P.W.
Muhammad Nadeem and after they alighted from the bus at Gharibabad Stop and on their way to their destiny, passed through a street and saw that a person of tall height armed with pistol passed through them in running condition and went near a car and opened fire to a lady who was in police uniform. The accused after fire on lady went to a motorcycle at the corner of Gali and escaped on it. They have further stated that after 12/13 days they came to know that a person was arrested by C.I.A. Police. They visited C.I.A. Centre at 10 p.m. And saw both the accused in the custody of police.
They informed the police that they are the same accused.
9. In the cross-examination of P.W. Iqbal Ahmed, it appears that he has not stated the said reason for going to the place of incident at the relevant time. He has further admitted that after seeing the incident they went away and did not inform anybody including the police even on telephone.
Admittedly they reside far away from the place of incident. Iqbal himself runs a newspaper stall at Saddar which too is far away from the place of incident and in his 161; Cr.P.C. Statement Iqbal has given no reason for going to the place of incident.
10. The next witness Muhammad Naveed has also testified in same tone and has stated that accused were shown to him at C.I.A. Centre and thereafter, he narrated before the police that he had seen the incident and further stated that they went back and did not inform anybody including police. He sales fruit outside the area of C.I.A. Centre. This witness has also not furnished any reason for going near the place of incident at the relevant time on the day of incident. The said witnesses were examined after 17 days of incident by the police. Their names do not figure in the F.I.R. As witnesses. They have suppressed this fact of seeing the incident for quite a long time and all of sudden they have gone to C.I.A. Centre after arrest of accused and narrated before the police that they were eye-witnesses and the accused arrested, were the culprits of the incident, is really very strange and does not appeal to the prudent mind.
11. Both of them have materially contradicted each other. For giving the reason to visit C.I.A. Centre, Naveed has stated that' he went to C.I.A. Centre after hearing news regarding arrest of accused where he found both the accused. P.W. Iqbal Ahmed has deposed that he had seen the news published in the newspaper regarding the arrest of accused and thereafter, they went to C.I.A.
Centre.
12. The next witnesses are Shahzad and Asif. The names of these witnesses do not figure in the F.I.R.
Their statements were recorded by the police belatedly. P.W. Shahzad has stated before the Court that in fact he has not witnessed the occurrence but has deposed due to the pressure of police. He has further stated that he and his friend Asif were brought at C.I.A. Centre by the police. His testimony reveals that he was kept at C.I.A. Centre for 8/10 days and the accused were shown to him by police at C.I.A. Centre. He has further admitted that his statement was tutored by police and he was threatened by police during his confinement. The remaining evidence is of no help for prosecution. P.W. Zareed Abbasi is Mashir of arrest, Zafar, S.I.P. Investigated the matter, Muhammad Zubair, Police Inspector allegedly arrested the accused and recovered T.T. Pistol from the possession of Shahid Hafiz. The Mashir and the Investigating Officer have contradicted each other in respect of the date of arrest. In any way the arrest and the recovery of any weapon do not implicate the accused or connect them with the commission of murder. P.W. Anwar is also Investigating Officer and has deposed that during interrogation accused had confessed guilt before him.
13. It appears from the testimony, of Police Officers particularly Muhammad Anwar that he did not make any efforts to find out the real culprits of the incident but only tried to set up false witnesses against the present respondents and save the real culprits for the reasons best known to him. The accused have examined themselves on oath. They have also examined defence witnesses.
Accused Shahzad Hafiz has examined himself on oath and the witness. They have stated that at the relevant time he was on duty and that he was not arrested from the place as alleged by the prosecution but in fact he was arrested from his house. The documentary evidence as well as the evidence of witness in defence at least reflects upon the prosecution story and the evidence produced shows that the accused was on his duty.
14. Accused Muhammad Aslam has deposed that he was on his duty. The accused has examined witnesses in his defence and has also produced documentary evidence, which indicated that the accused was on his duty at the relevant time.
15. This is an appeal against acquittal and the consideration for appeal against acquittal and an appeal against conviction are altogether different. The principles have been laid down 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."
16. 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."
17. We find that the trial Court has rightly acquitted the respondents and the principles for setting aside order of acquittal are now well-settled. The impugned judgment is neither perverse, illegal, ridiculous nor the perusal of evidence leads to the guilt of accused and nowhere else. There has been no misreading of evidence, which could be said to have caused miscarriage of justice. The judgment of acquittal is in consonance to the settled principles of administration of criminal justice. The reasoning is sound and cogent which appears to be in accordance with law and the principles governing the safe administration of criminal 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.
18. For the foregoing reasons this Special Anti-Terrorism Acquittal Appeal No,108 of 1999 merits no consideration and is hereby dismissed.