PLJ 2008 Cr.C. (Lahore) 886

Present: Zafar Iqbal Chaudhry, J.

MUHAMMAD AFZAL ZAHID--Appellant

versus

STATE and another--Respondents

Crl. A. No. 506 of 2006, decided on 29.4.2008.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 217 (2-A)--Pakistan Penal Code, (XLV of 1860), Ss. 392, 324, 295-B, 412 & 32 PPC--Conviction and sentence recorded against accused--Challenge to--Appreciation of evidence--Acquitted by First Appellate Court--Assailed--Marked difference between appraisement of evidence in appeal against conviction and in appeal against acquittal--Right method of appraisement is not to be applied as there is finding of acquittal given by Court--Held: In an appeal against acquittal, High Court would not, in principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused--Further held: High Court would not interfere with acquittal merely on re-appraisement of evidence--Unless the Judgment of the trial Court is perverse, completely illegal--On perusal of evidence no other decision can be given except the quit or misreading of evidence leading to miscarriage--Appeal being devoid of any merit was dismissed. [P. 889] A

Administrative of Justice--

----Appeal against acquittal--Distinctive features--An appeal against acquittal has distinctive features and approach to deal with appeal against conviction is distinguishable from appeal against acquittal.

[P. 892] B

Ch. Muhammad Amin Javaid, Advocate for Appellant.

Mr. Shahid Ali Shakir, Advocate for Respondent No. 2.

Date of hearing: 29.4.2008.

Judgment

Muhammad Awais, Respondent No. 2 and the co-convicts namely Imran Anwar and Muhammad Younas were sent up for trial in case F.I.R. No. 401 dated 4.11.2002, registered under Sections 392/324/295-B/412/34 PPC at Police Station City Toba Tek Singh, before the learned Magistrate Section-30, Toba Tek Singh. On conclusion of the trial, vide judgment dated 20.10.2005, rendered by the learned Magistrate Section-30, Toba Tek Singh, Respondent No. 2 Muhammad Awais and co-convicts namely Imran Anwar and Muhammad Younas were convicted and sentenced as under:--

Under Section 392/34 PPC. Seven years R.I. each with direction for payment of Rs. 2,00,000/- each as fine and in case of default of payment thereof to further undergo S.I. for two years. Under Section 324/34 PPC. Seven years R.I. each.

Under Section 295-B/34 PPC. Seven years R.I. each.

Under Section 412 PPC. Seven years R.I. each alongwith direction for payment of Rs. 2,00,000/- (Rupees two lacs) each as fine and in case of default of payment of fine thereof to further undergo R.I for two years each.

All the sentences were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was extend to them.

2. Muhammad Awais, Respondent No. 2, and the co-convicts namely, Imran Anwar and Muhammad Younas, being aggrieved by the above-said judgment of conviction and sentence, preferred appeals before the learned Addl. Sessions Judge-II, Toba Tek Singh, and the appeal filed by Respondent No. 2 was accepted who was acquitted of the charge while extending benefit of doubt to him whereas the appeal preferred by the co-convicts was dismissed, vide consolidated judgment dated 16.2.2006, handed dawn by the learned Addl. Sessions Judge-II, Toba Tek Singh. This Criminal Appeal under Section 417 (2-A), Cr.P.C, has been preferred by Muhammad Afzal Zahid, appellant against the acquittal of Muhammad Awais, Respondent No. 2, calling in question the judgment dated 16.02.2006 delivered by the then learned Additional Sessions Judge-II, Toba Tek Singh.

3. The occurrence in the present case had allegedly taken place at 4.00 a.m. on 4.11.2002 at the Kothi of Senior Civil Judge, Toba Tek Singh, 1 k.m. towards North from the Police Station and the matter was reported by Muhammad Afzal Zahid, Senior Civil Judge, Toba Tek Singh, appellant (PW-01), through statement (Ex. PA) made to Muhammad Ajmal Khan, S.I./S.H.O. (PW-06) at the place of occurrence on the basis of which formal F.I.R. (Ex. PA/1) was reduced into writing by Muhammad Saleem, Moharrir (PW-4) the same day at 5.30 a.m.

4. The brief facts of the case as unfolded in the F.I.R. (Ex. PA) got lodged by Muhammad Afzal Zahid, Senior Civil Judge Toba Tek Singh, appellant (PW-1) are that Muhammad Awais, Respondent No. 2, Imran Anwar, Muhammad Younas, co-convicts and Hussain Raza alias Sunny (minor) while armed with firearm weapons made forcible entry in the official residence of the complainant in his absence early in the morning at 3.15/4.00 a.m. on 4.11.2002 and by putting in fear of death and confining Ahmad Yar (PW-2) servant of the complainant-appellant in store robbed currency notes of Rs. 1,64,000/-, Jewelry weighing 41 tolas, camera, wrist watches and Prize Bonds worth Rs. 20,250/- (belonging to his mother-in-law, his wife and self-having been accumulated for purchasing wedding articles) by breaking the locks of bed room and almirah. During this they had also disgraced Holy Quran by throwing it on floor. On being seen by the complainant and PWs they fired at him at outer gate of external boundary wall of his official residence.

5. After completion of investigation, report under Section 173, Cr.P.C. was submitted in the Court. However, challan of one of the co-accused namely Hussain Raza alias Sunny was separated being minor under the Juvenile Justice System Ordinance and the proceedings against Muhammad Awais, Respondent No. 2, imran Anwar and Muhammad Younis were started jointly by the learned trial Court. The learned trial Court after supplying copies of the documents required under Section 241-A Cr.P.C. to Respondent No. 2 and the co-accused framed the charge against them under Section 392/324/295-B/411 PPC on 17.5.2003, to which they pleaded not guilty and claimed a trial.

6. During the trial, the prosecution in order to prove the guilt of Respondent No. 2 and the co-convicts produced as many as nine witnesses in support of its case.

7. In their statements recorded under Section 342, Cr.P.C, the Respondent No. 2 and the co-convicts had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, neither they had opted to make statements under Section 340(2) Cr.P.C. on oath, nor they produced any witness in their defence.

8. After hearing the learned counsel for the parties, the learned trial Court convicted and sentenced Respondent No. 2 and the co-accused as mentioned in para 1 ante. Against the said judgment, an appeal preferred by Respondent No. 2 has been accepted by the learned Addl. Sessions Judge-II, Toba Tek Singh which has been assailed through this appeal.

9. The learned counsel for the appellant contends that the prosecution witnesses had fully supported the prosecution case and it was a fit case for maintaining the conviction and the minor contradictions have been taken into consideration by the learned Appellate Court for acquittal of Respondent No. 2 Muhammad Awais through the impugned judgment which has caused grave miscarriage of justice, and the same to the extent of acquittal of Respondent No. 2 is liable to be set aside.

10. On the contrary, learned counsel for Respondent No. 2 has fully supported the judgment of acquittal of the learned appellate Court and prays for dismissal of this appeal on grounds that there was no motive against Respondent No. 2 rather the same had been alleged against.

11. I have heard at length the arguments of learned counsel for the parties in the light of the material on record and the rulings quoted by the learned counsel for the parties in support of their respective contentions.

12. It needs no reiteration that there is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the Court acquitting the accused after proper analysis of evidence on record. In the appeal against acquittal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. While considering the scope of Section 417, Cr.P.C. it is held that in an appeal against acquittal, this Court would not, in principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. The Court would not interfere with the acquittal merely because on re-appraisement of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. It is true that the finding of acquittal is not sacrosanct, if the reasons given by the appellate Court are speculative or of artificial nature or the findings are based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusion drawn as to the guilt or innocence of the accused persons, are perverse, resulting residing into miscarriage of justice, the same can be interfered with in appropriate cases in the light of the principles laid down by the apex Court regarding appreciation of evidence. In Yar Muhammad and 3 others Vs. The State (1992 SCMR 96), it was observed :--

"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 or criminal justice."

13. The prosecution case essentially rests on circumstantial evidence furnished by the appellant Muhammad Aslam Zahid, (PW-1), Ahmad Yar (PW-2), Muhammad Shahid (PW-3) and Muhammad Boota (PW-5). Muhammad Afzal Zahid, appellant (PW-1) stated that he had gone to Lahore alongwith his wife and mother-in-law and earlier his mother-in-law had arrived at his home to buy jewellery for the marriages of her children and handed over to him an amount of Rs. 1,50,000/-, his salary Rs. 14,000/- alongwith jewellery of his wife was locked in his bed room in wooden almirah and on 4.11.2002 they returned to Toba Tek Singh at about 4.00 a.m. and when they were coming to his house by foot they reached at the outer gate of the boundary wall of the residences he saw Imran Anwar co-convict process-server alongwith 3 other un-unknown persons coming out of his house he called Imran Anwar co-convict who fired with his pistol upon the complainant, however, luckily he remained save. In the meanwhile, PWs Muhammad Shahid and Muhammad Boota arrived there who identified the accused persons. He further stated that on checking of his house he found the main gate opened of the house and the main entrance door of the corridor was also open, the lock of the bed room was opened and the locks of Almiras were broken and the articles lying in the Almiras were scattered on the floor including the Holy Quran. Brief case was open and his Naib Qasid Ahmed Yar (PW-2) to whom he had left at the house was found injured. He found missing 41 tolas of jewellery, cash Rs. 1,64,000/-, 24 prize bonds each valuing of Rs. 750/- total valuing of Rs. 20,250/-, two wrist watches and one camera.

14. The motive behind the occurrence was alleged to be that the appellant had taken action against Imran Anwar co-convict for willful absence from his duty and leaving the station without permission. He also stated that from Imran Anwar co-convict, the police recovered an amount of Rs. 59,400/-, two bangles, one gold ring one pair of ear rings and one ladies wrist watch and from Muhammad Younis, co-convict, police recovered an amount of Rs. 59,000/- one gold chain, one locket chain, one gold ring, four gold ladies topes (Bunday), 3 gold ear rings. From the perusal of statement of PW-1, it reveals that he had not seen Respondent No. 2 and the co-convicts while committing the occurrence whereas he had seen them coming out of his house. Likewise, PW-2 Ahmad Yar, who was guarding the house of the appellant did not name the Respondent No. 2 or the co-convicts. He also did not say a single word that while committing the occurrence he identified the Respondent No. 2 or the co-convicts rather he stated that the accused persons had muffled their faces and thereafter they tied him and locked him in the store. When he came out of the store the accused persons had left. PW-3 Muhammad Shahid and PW-5 Muhammad Boota, were the chance witnesses, who were produced to corroborate the statement of PW-1. They did not say a single word in their statements that how they earlier knew the Respondent No. 2 and the co-convicts. Muhammad Ajmal, S.I. (PW-6) stated that he got the accused persons challaned and Muhammad Awais, Respondent No. 2 being innocent was placed by him in Column No. 2 of the report under Section 173, Cr.P.C. During the cross-examination he admitted that during the course of investigation number of persons appeared before him to prove the innocence of Muhammad Awais, Respondent No. 2. Muhammad Salim Akhtar, ASI (PW-7), Muhammad Iftikhar (PW-8) and Iftikhar Ali (PW-9) were the witnesses of recovery. It is pertinent to point out here that from Imran Anwar co-convict, the police recovered an amount of Rs. 59,400/- two bangles, one gold ring one pair of ear rings and one ladies wrist watch and from Muhammad Younis, co-convict, police recovered an amount of Rs. 59,000/- one gold chain, one locket chain, one gold ring, four gold ladies topes (Bundey), 3 gold ear rings. Similarly, pistol .30 bore (P.I) and live bullets (P-4/1-6) were recovered from Muhammad Younis co-convict). As such no recovery whatsoever has been effected from Muhammad Awais, Respondent No. 2, which makes the prosecution's case doubtful to his extent.

15. From the perusal of the evidence, I have come to an irresistible conclusion that the prosecution had not been able to prove the case against the Respondent No. 2, beyond any shadow of doubt as he was not nominated in the F.I.R., nor examination of Muhammad Awais, Respondent No. 2, under Section 342, Cr.P.C. reveals that he was put the evidence regarding his identification outside the house of complainant by the complainant or the PWs. No recovery of whatsoever has been effected from the possession of Respondent No. 2. Motive of the occurrence was not ascribed to him rather the same had been attributed to Imran Anwar co-convict. He was found innocent during the course of investigation and challan was submitted in the Court by placing him in Column No. 2 of the report under Section 173, Cr.P.C.

16. The learned counsel for the appellant has failed to point out any misreading or non-reading of material evidence on the part of the learned appellate Court resulting into miscarriage of justice. It is well settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. Reliance is placed on "Inavat Ullah Butt Vs. Muhammad Javed etc." (PLD 2003 SC 562). There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned appellate Court, which being based on sound and cogent reasons supported by the evidence on record does not warrant any interference by this Court and is accordingly maintained. Hence this appeal being devoid of any merit is dismissed.

(T.A.F.) Appeal dismissed.