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Criminal Acquittal Appeal No.D-9 of 2011, decided on 29th January, 2014.

----Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, rioting, common object---Appeal against acquittal---Benefit of doubt---Previous enmity between the parties had been admitted by the complainant party---No active role in the commission of alleged offence was assigned, particularly to accused persons; whereas one accused was attributed role of making pistol shot at the deceased, which hit him on his arm---No crime weapon was recovered from possession of said accused to prove such allegation---Said accused person, was found innocent during course of investigation, and his name was placed in Column No.II of the challan sheet---No other incriminating material, or evidence had been produced by the prosecution against accused persons, which could directly connect them with the alleged offence, for which co-accused had already been convicted, though impugned judgment and appeal against such conviction was pending disposal before the Single Judge of High Court---Accused persons had already suffered the agony of the trial and the pendency of present appeal---No irregularity and infirmity had been pointed out in the impugned judgment, so far accused persons were concerned---Trial Court had rightly extended benefit of doubt in favour of accused persons---Judgment of Trial Court, did not require any interference by High Court in appeal---Appeal against acquittal was dismissed, in circumstances.

----S. 417(2-A)---Appeal against acquittal---Scope---"Appeal against conviction" and "appeal against acquittal"---Distinction---Accused who had been acquitted in crime, could claim double innocence, one at the pre-trial stage, and the other he could earn on the basis of judgment of acquittal in his favour from the court of competent jurisdiction. Safdar Ali Ghouri for Appellant. Zia Ahmed Jalbani for Respondents Nos. 1 to 4. Imtiaz Ali Jalbani A.P.G. for the State. Date of hearing: 29th January, 2014.

This acquittal appeal is directed against the judgment dated 28-2-2011, passed by learned Additional Sessions Judge-III, Larkana, whereby he has acquitted the accused/ respondents No.1 to 4, by extending benefit of doubt. The appellant having aggrieved and dissatisfied with the impugned judgment has filed instant appeal. 2. Precisely, the facts of prosecution case are that, on 13-5-2005, appellant/complainant Ali Dino Kharose lodged report with Police Station Naudero, alleging therein that, he had dispute with Hyder Bux Kharose over matrimonial affairs since last 5/6 years. That, on the fateful day, his brother Ali Sher, step brother Deedar Hussain and cousin Gul Muhammad came to Madeji town and after finishing their work, all the four were returning to their village by foot. Ali Sher was ahead of others at distance of about 8/10 paces, as such at 7.00 p.m. they reached at Nusrat Shaakh near village Faiz Muhammad Jeho, where they saw accused persons, namely, Hyder Bux, Ghulamullah, Muhammad Siddique armed with pistols; Muhammad Ashraf, and Sikander armed with guns; they came from eastern side of the bank of Shaakh; all of them aimed their weapons upon complainant party. Accused Hyder Bux gave hakal to Ali Sher and asked him that he will not be spared, meanwhile accused Ghulamullah fired from his pistol upon Ali Sher, which hit on his right arm and Ali Sher returned back, whereupon accused Hyder Bux fired pistol shot upon him, which hit him on his back side of neck and he fell down on the ground. Thereafter, the accused persons fled away towards western directions along with their respective weapons. The complainant party saw Ali Sher, who was having injuries on his right side of arm and back of neck and left eye and died within their sight. Then the complainant left above named witnesses to guard the dead body, and he went to police station Naudero, and lodged report to the above effect. 3. After framing of formal charge, the prosecution had examined P.Ws. Dr. Hakim Ali at Exh.10, complainant Ali Dino at Exh.11, eye-witnesses Deedar Hussain and Gul Muhammad at Exhs.12 and 13. Investigation officer of the case Inspector Abdul Fatah was examined at Exh.15. Then P.Ws. Naseer Faqir and PC Jameel Ahmed were examined at Exh.16 and Exh.17. After closing the side of prosecution the statements of accused/respondents were recorded under section 342, Cr.P.C. wherein they had denied the allegations of prosecution; they neither examined themselves on oath, nor led any evidence in defence. 4. After appraisal of evidence adduced at the trial, the learned trial Court passed the impugned judgment and having extended benefit of doubt acquitted respondents Nos.1 to 4. Being dissatisfied with the impugned judgment the complainant has assailed the same, through this appeal. 5. Learned counsel for the appellant contended that this was broad daylight incident and the accused/respondents Nos.1 to 4, due to old enmity have launched an attack upon complainant party and got one of them murdered. He further contended that prosecution has produced trustworthy evidence in the trial Court but the learned trial Court has not appreciated the evidence and erroneously extended benefit of doubt in favour of accused/respondents Nos.1 to 4. He further contended that prosecution had established its case beyond any reasonable doubt in the trial and the acquittal of the respondents Nos.1 to 4, has caused miscarriage of justice. 6. On the other hand learned counsel for respondents Nos.1 to 4, strongly supported the impugned judgment so far the case of respondents Nos.1 to 4 is concerned, and contended that the learned trial Court rightly extended benefit of doubt in favour of respondents Nos.1 to 4. It was further contended that the appellant has miserably failed to establish the charge against the accused/respondents Nos.1 to 4. 7. We have considered the submissions advanced at the bar, and have perused the evidence produced in the trial Court. Perusal of record shows that the previous enmity between the parties has been admitted by the complainant party. It further appears that no active role in the commission of alleged offence is assigned particularly to the respondents Nos. 2 to 4, whereas respondent No.1 was attributed role of making pistol shot at deceased which hit at his arm, however during course of investigation no crime weapon was recovered from possession of respondent No.1, to prove such allegation. Moreover, during course of investigation the respondent No.1 was found innocent and his name was placed in column No.II of the challan sheet. 8. No other incriminating material or evidence has been produced by the prosecution against the respondents which may directly connect them with the alleged offence for which co-accused has already been convicted though impugned judgment and appeal against such conviction is pending disposal before the learned Single Judge of this Court. 9. The alleged incident had taken place in year 2005, and the respondents Nos.1 to 4, have already suffered the agony of the trial and the pendency of instant appeal. The counsel for the appellant has not been able to find out any irregularity and infirmity in the impugned judgment so far respondents Nos.1 to 4 are concerned. 10. Considering all the above aspects of the case, we have come to the conclusion that the trial Court has rightly extended benefit of doubt in favour of accused/respondents Nos. 1 to 4, and the impugned judgment contains valid reasons for extending benefit of doubt to the respondents in this appeal, hence, does not require any interference by this Court. We may further observe that there is clear distinction in appeal against conviction and appeal against acquittal. It is settled law that accused who has been acquitted in crime can claim double innocence, one at the pre trial stage and the other he may earn on the basis of judgment of acquittal in his favour from the Court of competent jurisdiction. The competent Court in the instant matter has extended benefit of doubt to the accused/respondents Nos.1 to 4 after examining the entire evidence, therefore, we see no reasons to interfere with the impugned judgment. Consequently, this criminal acquittal appeal was dismissed vide our short order dated 29.01.2014, and these are the reasons for the same. HBT/A-32/Sindh Appeal dismissed.

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