Ghulam Sarwar (Appellant) VS The State (Respondent)

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CERTIFICAIE OF IHE COURT IN REGARD TO REPORTING

CRIMINAL SPECIAL ATA NO. D-"126 OF 2OO4

MUHAMMAD ISMAIL V/S THE STATE

CRITVIINAL SPECIAL ATA NO. D-135 OF 2OO4

GHULAM SARWAR V/S THE STATE

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SIND H HIGH COURT C IRCUIT COURT YDERA BAD

Composition of B ench

HON'BLE M JUSTICE MOH AD KARIM HAN A HA

HON'BLE M . JUSIIC RASHE D AHM D SOO RO (D.B)

Dote of lost heoring (heord/reserved): 10-06-2020 Decided on: 17-06-2020

(o).Judgment opproved for reporting YES

CER TIF ICATE

Certificote thot the Judgment/Order is bosed upon or l.

enunciotes o principle of lqw/decide o question of low which is of firsi impression/distinguishes over-rules/exploins o previous

decision.

Strike-out whichever is not opplicoble.

NOIE: - (i) This slip is only lo be used when some oclion is lo be token' (ii) lf lhe slip is used. the Reoder must ottoch il to lhe top of lhe first Poge of the Judgment'

(iii)Court Associole mus'l osk the Judge wrilten lhe iudgment whelher ihe judgmenl is opproved for reporting' (iv) Those directions which ore not lo be used should be deleted' SGP, Kor-L (iii) 773-2000-4-2003-lll

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I,; IN THE HIGH COURT OF SINDH, HYDERABAD CIRCUIT

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,l.l CriminalAppeal *o.l2l of 2004. ?iii!"' ;e Muhammad Ismail S/O Khamiso Kharr Kheri, Muslim, adult, at present confined at Centra-l Prison, Hyderabad. APPELLANT.

VERSUS

The State. RESPONDENT. t Crime No. 175 of 2003.

u/s 302, 460,397,109, ! 120-B PPC 17(4) PHE R/w 5.6/7 of Anti-Terrorism &ct,7997.

P.S. Town Mirpurkhas.

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ORDER SFIEET

IN THE HIGH COURT OF SINDH,

CIRCIIIT COLTRT, HYDERABAD

Cr. Special A'T. Appeal No.D-126 of 2004 Cr. Special Jail A.T Appeal No.D-135 of 2004 IConfirmation Case No'04 of2004]

DATE ORDER WITH SIGNATURE OF JUDGE

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Mr. Muhammad Sachat R. Awan, advocate for appellant Muhammad ir.uif in Cr. Special A.T. Appeal No'D- 126 of 2004' Syed Tarique Ahmed Shah, advocate for appeltant Ghulam Sarwar in Ci. SpecialA.T. AppealNo.D-135 of 2004' Mr. Abdul Hameed Bajwa. advocate for acquitted accused Ishtiaque Ahmed.

Mr. Shewak Rathore, D.P.G for the State' Leamed counsel for appellants have read out the entire evidence'

Mr. Muharnmad Sachal R. Awan learned counsel for appellant Muharnmad

Isrnail and Syed Tariq Ahmed Shah learned counsel for Ghulam Sarwar have given by this court' made their submissions. In response to sho\^' cause notice Ishtiaque ]. Mr. Abdul Hameed Bajwa advocate on behalf of acquitted accused Ahme d has also made his submissions. None appeared on behalf of acquitted we have considered accused Pervez Akhtar and Muhammad Kashif' however' of their case being an their case in respect of their show cause notice in respect against acquittal rvas filed appeal against acquittal having noticed that no appeal Prosecutor General Sindl-r either by the State or the complainant' Learned Deputy rnade his submissions in respect of the appellants and acquitted accused' The has

complainant r.vas given notice to appear before this court on lnany occasiotrs Isrnail and Ghularn however he was called absent' Appellants Muhamrrad under these circumstances' 1\'e Sarrvar have both been in jail for 17 years and to dispense with the appearance consider that it would be in the interest ofjustice pursuing this case and has ofthe complainant who appears to have no interest in for judgment' in any event been represented by leamed D P'G' Reserved

DGE

JUDGE

Ali Haider

A--?rJe=L Ei^ * )r^-o^^r,, \ ir'"*triJ l,^,

IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

Before Mr. Justice Mohammad Karim Khan Agha Mr. Justice Rasheed Ahmed Soomro

1 Cr. Spl. ATA No.D-125 of 2004

Muhammad Ismail

Versus

The State

2 Cr. SpL ]ail ATA No.D- 135 of 2004 (Confirmation Case No.D-04 of 20041

Ghulam Sanvar

Versus

The State

I Appellant Muhammad Tfuough Mr. Muhammad Sac hal R. Awan Ismail in Cr. Spl. ATA Advocate No.D-126 ot2004 Appellant : Ghulam Salwar Through Syed Tarique Ahmed Shah

in Cr. Spl. Jail ATA No'D- Advocate 135 of2004 Co-accused Ishtiaq Ahmed, Through NIr. Abdul Hameed Bajwa, who rvas acquitted bY the Advocate trial Court is Present in Court pursuant to notice issued this Court Respondent : The State Tfuough Mr. Shewak Rathore, D.P.G Sindh

Date of hearing 1.0.06.2020

Date of judgment 17.06.2020

IUD G MENT

judgment rve MOHAM MAD KARI M KHAN AG HA. T.- B y this single ATA Appeals and intend to dispose of aforementioned two Criminal Special

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confirmation reference as well as show cause notices as the same relate to one and the same incident and have been filed against the same iudgment passed by the trial court.

2.By means of instant Appeals, both appellants have assailed the Anti-Terrorism Court Judgment dated 02.08.2004, passed by learned Judge' of )- Hyderabad & Mirpurkhas Divisions at Hyderabad, in Special Case No'49 2003 (Re: State V Pervez Akhtar alias Muhammad Ali and others)' emanatilg

from Crime No.175/2003, registered at Police Station Town Mirpurkhas' Against under sections 302, 460, gg7,10g,120-8 PPC, Section 17(4) Offences 7 Anti- Property (Enforcement of Hudood) Ordinance' 1979 and Section Terrorism Act, 1997; whereby they have been convicted and sentenced' as

mentioned in Point No.3 of the impugned judgment' in the following terms:-

"Point No.3.

In view of the finding on the Point Nos'1 and 02' it is clear that namelv the prosecution evidence u!'itttt these above accused persons evidentiary Muhammad Ismail and Gluhm Sarwar has got strong value and there is no evidence against the remaining accused Persons' I therefore, for the proved offence u/s U$) of the Offence 19?Tt' Property (Enforcement of Hudood) Ordinance 1979 t/w S' 6(2) (a)

prr'titnuUf. under Section 7(a) of the Anti Terrorism Amendment Ordinance 2001, accused Ghulam Sarwar is punished with death subject to confirmation by the High Court.and also with fine of Rs One Lac. The fine if realized Ut fiven to the legal heirs of thedeceased Allah Bux. ln case of default of payment of fine to suffer R'I 'ttutt for one is punished for Life year more. The second accused \'t'hatntad Ismail imprison-e.tt also with fine of Rs'1'00'000/-' The fine if realized shall i"'git"r, to the legal heirs of the deceased Allah sentencesBux in defauit of awarded pay"ment of fine to irtfer R't' for one year more' The to the convicts shall ,t"' tottt"'""iiy Both convicts for the pt'oved offence t/ s 460 PPC are sentenced and punished for ten years each also given to the with fine of Rs.50,000/- each The fine if realized shall be aggrieved party' In case of default of payment of fine both convicts 382-8 Cr'P C' shall suffer R.I' for six months more Benefit of Section date of arrest will be given to the convicted accused Persons from their Akhtar' { viz. 17.12.2003' The remaining accused persons namely Pewez Muhammad Kashif and Ishtilaq Ahmed are hereby acquitted u/s 265- H(i) Cr.P'C."

about 08:15 p m'

3.The prosecution case in brief is that on 16 '12'2003 at armed with deadl-v present appellant alongwith acquitted co-accused duly weaPons pistols trespassed into the house of complainant Allahclad ,/ t

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Makrani, situated at Pak Colony jointly with their common intention to commit robbery at the instance of acquitted co-accused Ishtiaq Ahmed At that time complainant Patty, as per contents of F.I.R., was busy in watching T.V. \Alhile seeing accused persons, PW Allah Bux resisted, upon which accused persons opened fire at him, as a result thereof, he fell down at the outer gate of their house and died at the sPot. During such scuffle. the complainant party caught hold of one culprit alongwith his weapon / pistol carried by him, whereas other accused persons made their escape good. The complainant party informed the concemed police who came to the scene of the incident. The apprehended accused disclosed his name before the police as Pervez Akhtar alias Muhammad Ali s/o Khushi Muhammad, and the pistol recovered from his possession was found unlicensed. It is fulthel the case of the prosecution that while committing the said act, accused Persons had created sense of insecurity, terror and fear among the people of locality. It

is aiso alleged in the F'I.R. that aforesaid conspiracy was managed by acquitted co-accused Ishtiaq Ahmed. Complainant in his said F I'R' has further stated that at the time of occurrence, all accused Persons were rvith t open faces and they can be identified if seen again' 4.Afterusualinvestigatiorypolicesubmittedchallanbeforethe concerned court and after comPleting necessary formalities, leamed trial court framed the charge against all accused, to which they pleaded not guilty and claimed trial,

5.The prosecution in order to Prove its case examined 12 PWs and exhibitednumerousdocumentsanclotheritems.Thestatementsoftlre accused were recorded under section 342 Cr'P'C whereby they claimed false in implication. They did not examine themselves on oath or call any witness support of their defence case.

6.Learned trial court after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the

appellants as stated earlier in this judgment'

7.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment' therefore' the same are not reproduced here so as to avoid duplication and unnecessary repetition'

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8.Initiatly whilst hearing this case this court vide judgment dated 29'05'09 (over 10 years ago) whilst exercising its reversionary powers was of the view that the acquitted co-accused Pervez Akhtar, Ishtiaq and Muhammed Kashif also had a case to answer and issued show cause notices to them as to \4'hy

the impugned judgment in respect of them should not be set aside and their case be remanded to the trial court for decision in accordance with law. This

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court issued such notices and bailable warrants for the production of the aforesaidthreeacquittedco-accusedwhoby12'05'2071allhadbeen produced before this court with counsel. Thereafter this matter was adjourned for one reason or another and today only acquitted co-accused Ishtiaq is before this court. It is noted that acquitted co-accused Pervez Akhtar andMuhammedKashifhavenotappearedbeforethiscourtfolanumberof been years despite notice and BW's being issued The complainant has also served but has not put in an apPearance' Neither the State nor the complainanthasfiledanyacquittalappealagainsttheacquittedco-accused nor any criminal revision application against the appellant who was convictedforlife'BoththeappellantshavenowbeeninjailforlTyears excludingremissionandthiscourtiSoftheviewthatitcannotkeepthis justice to do matter pending any longer as it would not be in the interests of so as the appellants have already been behind bars for 17 yeats and that this

court wi-ll also deal with the case of the acquitted co-accused as it was this

court which initiated the show cause notices against them on its own motion.

g. Leamed counsel for the appellants in both apPeals have argued the

matteralmostonthesamefootingandhavecontendedthatthebestwitnesses beingthewomenfolkwhowelePlesentatthesceneoftheailegedincident were not called and therefore the prosecution deliberately did not lead the

best evidence, that the correct identiJication of the appellants as being Present

at the scene had not been made as the identification parade was completelv Akthar flawed and not in accordance with law, that the co-accused Pervaz anclMuhammedKashifhadbeenacquittedonthesameorlesserevidence were major and as such they were entitled to the same treatrnent' that there not be sa{elv contradictions in the evidence of the PWs and as such they could relied upon, that the weaPons were foisted on them' that it had not been

proven that any of the appellants fired the fatal shot and for any of the above

reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. Lr support of their contentions they placed reliance on the cases of Usman alias Kaloo V The State (2017 SCMR 622), Mansab AIi V The State (2019 SCMR 1306), Sardar Bibi and another V Munir Ahmed and others (2017 SCMR 3tM), Muhammad Asif V The State (2017 SCMR 486),

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Zafat Y The State (2018 SCMR 326), Mian Sohail Ahmed and others V The State and others (2019 SCMR 956), Kanwar Anwaar Ali, Special |udicial Magistrate: In the matter of criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No'259 of 2078, decided on 22nd February, 2019 (PLD 2019 Supreme Court 488), Azhar Mehmood and others V The State (2017 SCMR 135), Nazir Ahmad V Muhammad Iqbal and another (2011 SCMR 527), Hakeem and others V The State (2017 SCMR 1546), Abdul and another v The state (2019 SCMR 129) and Lal Pasand V The ]abbar State (PLD 1981 Supreme Court 1'42).

10.with regard to learned counsel for acquitted co-accused Ishtiaq he contended that there was no evidence against him at all excePt a bare hearsay I allegation that he was involved in a conspiracy with the co-accused to commit robbery, there was no evidence that he was present at the scene of the incident and he was not picked out at any identification parade and as such he was rightly acquitted by the trial court and even otherwise his case was in

effect an appeal against aquittal for which he was entitled to the double presumption of inrtocence and that this court had no Power to simply remand the case back to the trial court for a decision in accordance with law when the

trialcourt had already given such a decision after its assessment of evidence on record and as such the show cause notice should be withdrawn and his

acquittal should remain.

ll.ontheotherhandleamedDPGappearingonbehalfoftheStatefully supportedtheimpugn.edjudgmentandinparticularcontendedthattheFlR wasfiledwithpromptitude,thattheeyewitnesseswerereliable,trustworthy appellants and confidence inspiring and that they had correctly identified the ascommittingthemurderatanidentificationparadewhichwasheldin accordancewithlaw,thatthemedicalevidencesupportedtheeyewitness evidence, that pistols were recovered from the appellants on their arrest which matched some of the empties recovered at the scene tfuough a Positive,

FSL report, that there was positive chemical test and as such the appeals against conviction should be dismissed and the impugned judgment should be upheld. with regard to the acquitted co-accused he made no submissions as the state had not deemed it fit to file an appeal against their acquittal and

nor had the complainant and as such this issue was for the court to decide co-accused' since the court had issued the show cause notices to the acquitted

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12.We have heard the arg-uments of the leamed counsel for the parties, counsel gone through the entire evidence which has been read out by learned and forthe appellant and the impugned judgment with their able assistance have considered the relevant law including that cited at the bar'

13.In our view after our reassessment of the evidence based on the and IO' evidence of the PW eye witnesses, PW MLO's, PW poiice witnesses we are satisfied recovery of empties at the scene and positive chemical rePolts thattheProsecutionhasprovedbeyondareasonabledoubtthaton16.12.2003 ataboutS'l5pmatthehouseofAllahdadMakraniatPakColoneyduringthe bv 4 commission of a robbery Allah Bux Makrani was murdered by firearm persons who entered his house in order to commit robbery' 1,4. The only issue therefore, in our view, left before us is whether it was the appellants or some other third party who murdered the deceased b1'

causing him a firearm injurY.

15.In our view after our reassessment of the evidence we find that the beyond a prosecution has NOT proved its case against the appellants reasonable doubt of the murder of Allah Bux Makrani at the place, date and acquit both the

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time as rnentioned above for the following leasons and hereby doubu appellants of the charge by extending them the benefit of the have been

(a)In our view the key to this case is whether the appellants- { correctly identified u, thu puttotts who broke into the house and committedthemurderofAllahBuxMakraniasnoneofthemu'ere there. was arrested on the spot. Although according to the eye witnesses good electricity it ttre time ii-r order to see the appellants the appellants ivere not at the house for very long and the eye witnesses had not seen given of the appellants before and didnot know them and no hulia was theappeliantsinthe5.16lCr.PCstatementsoftheeyewitrresseswhich gurr"'u license for the eye witiresses to pick out anyone at the identiJication parade and as such it was important based on thre

1s{ to have been a particular facts and circumstances of this case for their is placed on Javed reliable identification parade. In this respect reliance that the Khan V State (2017 SCUn SZa1 W" t'ot" ftom the evidence that no role rvas iJentiJication parade was a joint identification parade' according to the urrigr.tua to the appeilants on their identification' that out the identification parade orily 8 ;"aiEiuf *rgirtruie who carried (which means that ir*-ies wlre used in each identification parade parade)' ,h"r" *u, 3 accused and only 5 others in each identification have the same )- ihat it has come in evidence that the dummies did not all features and thus under these circumstances we find that we carrnot have been safely rely upon the same as ensuring that the appellants with ;;#ri,'iaeirtitied as the Persons who fired on the deceased firearms and caused his murder. In this respect reliance is placed on (Supra)' Nazir Sofr"if nf,*"d's caee (Supra), Azhar Mehmood's cage Ahrned'" case (Supra) Lal Pasand's case (Supra) and Kanwar AIi's case (Supra).es such we find that the appellants have not been

.orr".rly identified as the persons who entered the house and murdered the deceased.

evidence as in

(b)The eye witness evidence conflicts with the medical deceased was effe.t tt e eye wibresses state in their evidence that the the shot in the back where as the post mortem report finds .that. deceased was shot in the chest' In this respect reliance is placed on from about 3 Mansib's case (Supra)' That since the deceased was shot feet their oughi tohave been blackening surrounding his wounds 1'et Sohail Ahmed's I there was .tJ.,". In this respect reliance is placed on and reliabilitv case (Supra).This in our view goes against the credibilify of the eye witnesses.

@ There are some material and significant contradictions in the evidence of the prosecution witnessui Fot exarnple' PW 1 Allahdact removed Ivho u,as an eye witness states in his evidence that the police the dead body whereas PW 5 Muhammed Tariq states in his evidence caste that he took tire dead body to hospital' Again such contradictions doubt on the credibility and reliability of the eye witnesses'

(ci)That co-accused Kashif was acquitted by the trial court in the was adduced l..rpugnea judgment on exactly the, same evidence as ugiinlt the apiellants and as such the appellants ought to have been (Supra)' lVe alquitted. In ihis respect we place reliance on Zafat's case shall deal with the case of acquitted co-accused Kashif later in this judgment.

that the

(e)That it is a golden principle of criminal jurisprudence and that ^ prosecution must prove iti case beyond a reasonable doubt any doubt must go to the benefit of the accused and in this case as mentionedabove"wefindcloubtsintheprosecutioncaseespeciallYin of ,"rp"., of the crucial aspect of the -corectness of the identificationthis the appellants and as suih the benefit must 80 to the appeliants ln *rp"'.i reliance is placed on the case of Tariq Pervez V/s' The State (19'95 SCMR 1345i wherein the Supreme Court has observed as follows:-

"lt is settled law that it is not necessary that there should bewtich many circumstances creating doubts lf there ija single circumstance' creates reasonable d[ubt in a prudent mind about the guilt of the accused, then the accused wili be entitled to the benefit not as a added) matter of grace and concession but as a matter of right"'(bold 1,6. With regard to the cases of acquitted co-accused Ishtiaq' Kashif and PewezAkhtarwenotethatalltheseaccusedwereacquittedbythetlialcoult. a show cause notice as to Thus, in our view even though this court gave them for a decision in why their case should not be remanded to the trial court as the trial court had alreadv accordance with law we are of the view that after appraising the evidence available on record it acquitted the co-accused shouldbeforthiscourttodecidethecaseoftheacquittedco.accusedlshtiaq, their acquittal Kashif and Pervez Akhtar by treating them as appeals against based on the particular subject to the same legal requirements' Furthermore' have already spent facts and circumstances of this case where the appellants that it would be iust 17 yearsexcluding remission in jail we do not consider back to the trial court for a or meet the ends of justice to again refer this case co-accused as this would decision in accotdance with law in respect of the I when we are in prolong the incarceration of the appellants further especially on the show cause notices' a position to decide the matter ourselves based

17.It is settled law that judgment of acquittal should not be

foolish' artificial' interjected until findings are perverse' arbitrary' Court in the case speculative and ridiculous as held by the Supreme Supreme court of The state v. Abdul Khaliq and others (PLD 2011 acquittal 554). Moreover, the scope of interference in appeal against presumption of the is narrow and limited because in an acquittal the innocence is significantly added to the cardina-l rule of criminal until jurisprudence as the accused shatl be presumed to be innocent is proved Cuilfy' tn other words' the presumptlon of laaoceace doubled as held by the Supreme Court in the above referred

judgment. The relevant para is reproduced hereunder:- "16. We have heard this case at a considerable length stretching of the on qrit" number of dates, and with the able assistance every i;;;; counsel for the parties, haveon thoroughly scanned pGe of evidence available the record; an exercise "r"t".i"f with reference to the conviction appeal' ".i-*ifr' ;il';; to ascertain if the conclusions of the Courts belorv ""cessitated are

o l,81 in violation of the lavt'' against the evidence on the record andlor euent, before embarking upon scrutiny of it may be the various il;;

oleas of law and fact raisea florn both the sides' the criteria illiit#.a iir;;il;i" i;arned counsel agreed that acquittai is - not . the of interference in the judgment against It this behalf it sarne, as against cases inuJving a convicti?l: precedents shall be relevant to mention that theoffollowing Courts nrovide a fair. settled and consistent view the superior '#;;-;.;;;il'[ should be followed in such cases; the

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dicta are:

(2010 SCMR

Bashir Ahmed v. Fida Hussain and 3 others and another +Sii,"l'I;. Mali Khan v Mir Shah Jehan rzolb pCr.U 3521, lmtiaz Asad v' Zain-ul-Abidin and :#;"; iioos pci'u 3e3), Rashid Alf^:d v' Muhammad SCMR 1152)' Barkat Ali v' 'St"rf.".itd othe.s (2006 (2004 N;; t't-l-"?'I Ali and oihtt" SCMR -?CSl' 'l) 926).'

Hussain v. The State and another l2OlO PCtO2 others Muhammad Tasweer v' HaIiz Zulkarnatn and and 6 ipr-o zoos SC 53), Farhat Azeern v' Asmat 2 others v' Ullah ;;;.-Aoo;io"riother" 1285), Rehmat-s-n3!^1na (tsos scMR-11?)r-The state v e,*ir-crr and 3 (1995 SC.MR 635)' Ayaz ft4"i-tr*-"a Sharif and 3 othersAhmed and another (2003 Ahmed and another v' Dr' Nazir p6..-Ul-fSg5), Muhammad Aslam v' Muhammad Zafar ;; t;th";" (iw rcoz sc 1), Anah-gt$1, and another 223)' Najaf f- v. Ghulam Rasool ald 4 others (1999 SCMR irf."* ,' Lady Dr. Tasneem and others (2004 YLR 407)' egt Wrri. Atbas and others v' The State and others iitilt" scrurn 1175), Mukhtar Ahmed v' The state (1994

(PLD

A;ii !-;*"*-sC nJimuilar' Jan v' Kashif and anotherand -igal, zoo+ scMR 249, Khan v' sajjad

iooa v Muhammad J,t*" tioo+ Sciun zts1, srrafig3e^|lm3d scNaR 855)' The State v' Abdul n"*r"- ,ra another tisgs6781 Bibi v' ail;;-tisgo scMR and -{$^.!aira rtari"--la Asif and others (2009 SCMR 946)' and those From the ratio of all the above pronouncements it can be ov it t".r,,ta--"o"t""t for the parties' "i1J deduced that " the of interference in appeal against "cope acquittal is n ost oi"ot and limited' because in an acquittal tne presumpiion of innocence is significantly jurisprudenc:' lh"l3" ;;e; t" the caidinal rule oftocriminal be innocent is doubled' The accused shall be pt""o*"a courts shall be v"ry "low in is inte-rfering with such an judgment, unless it shown to be perverse' ""q"itt.f passed in gross viorttioi of law' sufferlng from the errors of grave misreading ot- "o"-""ding of theand evidence; such heawv burden i.ig...iai shouli not be lightly in-terfered lies on the pro"""otio"- to- has rebut the, presumption of innocence which tnt a"co="a earned and attained on accountofhisacquittal.Ithasbeencategorically'heldina judgment of plethora of judgments that interference in a

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acquittal is rare and the prosecutlon must show that there are glaring errors of law and fact commltted by the Court in ariving at the decision, which would result into grave miscarriage of justice; the acquittal Judgmeut is perfunctory or wholly artiflclal or a shocklng conclusion has been drawn. Moreooer, ln number of dictums of thts Court, lt has been categorlcallg latd down that such Judgment should not be interJected untll the Jlndings are peroerse, arbitrary, )' foollsh, artlflclal, speculatlae dnd rtdlculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appralsal of the evidence a different conclusion could possibly be arrlved at, the factual conclusions should not be upset, except when palpably perverse, sufferlng from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient ar-rd imperative that the above criteria and the guidelines should be follorved in deciding these appeals." (bold and italics added)

18.With regard to acqultted co-accused Ishtiaq we find absolutely no evidence of his involvement in the offenses so charged based on the evidence on record and as such he remains acquitted and the show cause t- notice against him is discharged.

1.9. With regard to the acqultted co-accused Kashif since as mentioned earlier in this judgment we find the identification evidence in respect of him to be unreliable based on the evidence on record he remains acquitted and the show cause notice against him is discharged.

20.With regard to acquitted co-accused Pervez Akhtar although there appears to be more evidence against him on record than there is against the other co-accused and the appellants the trial court at typed P.77 made the following finding in respect of Pervez Akhtar;

"I have given my careful consideration to the arguments

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advanced before me and I have gone through the entire evidence of the P.Ws so far and I have perused the case law referred before me by the learned D.C as quoted above. I find that in this case regarding accused Pervez Akhtar, the P.W Ayoub SHO Ex.11 on record has clearly mentioned in his deposition and in his cross examination that when he reached at the place of occurrence, he found accused Pervez Akhtar was in the custody of comptt. Allahdad, he searched the person of the accused and nothing was secured from his possession. He had further seen that the comptt. was holding pistol in his hand and comptt.

disclosed that pistol was of the property of the accused Pervez Akhtar. This narration of P.W Ayoub SHO very much transpires that the involvement of accused Pervez Akhtar in this case appears to be doubtful. Had the accused been present at the spot something should have been recovered like bullet or any other article in his possession, but the SHO Ayoub Dars says that nothing secured, therefore, the involvement of this accused Pervez Akhtar in this case is very much doubtful and the benefit doubt must go to the accused."

21,. Keeping in view the law regarding appeals against acquittal in our view it cannot be said that the findings of the trial court are either whimsical, arbitrary or are a non reading of evidence and as such they do not meet the legal threshold to enable this court to set aside the acquitted co-accused Pervez Akhtar's acquittal by the trial court and as such he remains acquitted and the show cause notice against him is discharged.

In conclusion.

1.The appeals against conviction of both Muhammad Ismail and Ghulam Sarwar are allowed. The impugned Judgment is set aside. The confirmation reference is answered in the negative and both the appellants shall be released from custody unless wanted in any other custody case.

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2.Acquitted co-accused Ishtiaq, Kashif and Pervez Akthar's appeai against their acquittals are dismissed, they remain acquitted and the shon' cause notices issued against them by this court stand discharged. Likewise any outstanding Warrants against them whether bailable or non bailable are wthdrawn.

22.The appeals, confirmation reference and show cause notices stand disposed of in the above terms.

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