IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D- 18 of 2000

Present:

Mr. Justice Khadim Hussain Shaikh

Mr. Justice Amjad Ali Sahito

Appellant: Haji Jogi s/o Muhammad Bhatti, through Mr. Irfan Badar Abbasi, Advocate.

Respondents: Zulfiqar Ali and others

Respondent No.2 Anwar Ali s/o Bakhsh Ali through Mr.Safdar Ali Ghouri, Advocate.

Respondent No.4 The State through Mr. Khadim Hussain Khooharo, Addl.PG

Date of Hearing : 25.04.2018

Date of Judgment : 25.04.2018.

J U D G M E N T

Amjad Ali Sahito, J.- Through the captioned Criminal Acquittal Appeal, appellant Haji Jogi has called in question judgment dated 29.05.2000, passed by learned Additional Sessions Judge in Sessions Case No. 203 of 1996 re. the State v. Zulfiqar Ali and others arising out of F.I.R No. 134 of 1996 for an offence under section 302, 34, PPC registered at Police Station Kamber, whereby respondents Zulfiqar Ali alias Bhutto, Anwar and Budho have been acquitted.

2. Briefly, the facts of the case are that on 13.06.1996 appellant/ complainant Amir Jan lodged report at Police Station Kamber stating therein that on the day of incident i.e. 13.6.1996, complainant along with his son Ali Hyder were going towards their lands and at about 06,30 a.m.. when reached near village Feroze Bhatti they saw accused persons namely Zulfiqar Ali alias Bhutto son of Shekhoo alias Sher Khan, 2.Budho son of Bakhsh Ali armed with guns, whereas accused Anwar Ali son of Bakhsh Ali armed with hatchets, who challenged Ali Hyder that he is ‘KARO’ hence he will not be spared. On this, accused Zulfiqar Ali and Budho fired directly towards Ali Hyder which hit him and he fell down. Complainant raised cries which attracted P.Ws Umer son of Illahi Bux Bhatti and Allah Rakhio son of Usman Bhatti who saw the accused persons. It is further alleged in the F.I.R that accused Zulfiqar Ali also brought his sister Mst. Sehat Khatoon from his house and she was killed by accused Zulfiqar Ali and Budho on Koor Dato Wah path, then accused ran away. Complainant and P.Ws saw that Ali Hyder was dead having sustained injuries on his right side and left side nipples, Mst. Sehat Khatoon was also dead having sustained injuries on her head and abdomen. Then complainant came at Police Station Kamber and lodged the report as above. After usual investigation, the Kamber Police challaned the above accused persons to face the trial.

3. A formal charge was framed against the respondents/accused at Ex.4 on 02.11.1998 to which they pleaded not guilty and claimed to be tried vide pleas at Ex.5 to 7 respectively.

4. A trial, the prosecution examined complainant Haji Jogi at Ex.8, he produced FIR copy at Ex.8-A, PW Muhammad Umer at Ex.9 he produced his 164, Cr.P.C statement at Ex.9-A, mashir Ghulam Ali was examined at Ex.10, he produced mashirnama of vardat at Ex.10-A, Danishnama of deceased Ali Hyder at Ex.10-B, Danishnama of deceased Mst. Sehat Khatoon at Ex.10-C, mashirnama of arrest of accused Zulfiqar Ali and Anwar Ali at Ex.10-D and mashirnama of arrest of accused Budho at Ex.10-E.

5. PW Allah Rakhio was given up by the Public Prosecutor vide statement at Ex.11. Tapedar Abdul Rahim was examined at Ex.12, he produced the sketch of vardat at Ex.13-A. P.W PC Passand Ali was given up by the Public Prosecutor vide statement at Ex.13. I.O Shoukat Ali Rind was examined at Ex.15, Medical Officer, Dr. Inamul Haque was examined at Ex.16, he produced postmortem report of deceased Ali Hyder and Mst.Sehat Khatoon at Ex.16-A and 16-B respectively. Thereafter prosecution side was closed vide statement at Ex.17.

6. Statements of the respondents No.1 to 3/accused were recorded at Ex.18 to 20 respectively wherein they have denied the allegations levelled against them and claimed their innocence.

7. Mr. Irfan Badar Abbasi, learned counsel for the appellant/ complainant has contended that entire prosecution against the respondents No.1 to 3 rests on the ocular testimony of the complainant Haji Jogi and P.W Muhammad Umer. He submitted that P.W Muhammad Umer has supported the version of the complainant and their version is also supported by medical evidence. He further submitted that the learned trial Court has acquitted the respondents No.1 to 3 mainly on the ground that the evidence of the eye-witnesses is not corroborated by the independent evidence. He further submitted the evidence adduced at the trial does not suffer from discrepancies, improbabilities and material contradictions. He further submitted that except minor contradictions which cannot shake the prosecution evidence, the ocular evidence is such that the conviction could be based on it alone. He lastly submitted that it is a case where prosecution has been able to bring home, the charge against the respondents No. 1 to 3 and prayed for setting aside the judgment dated 29.5.2000 and awarding conviction to the respondents in accordance with law.

8. Mr. Khadim Hussain Khooharo, Learned Addl. PG appearing on behalf of the State has supported the arguments of learned counsel for the appellant and submitted that no doubt eye-witnesses are related to the deceased Ali Hyder but their testimony should not be discarded. He however, admitted that there are contradictions in the prosecution evidence but submitted that the case is proved against the respondents.

9. Mr. Safdar Ali Ghouri, learned counsel appearing on behalf of the respondent No.2 submitted that the learned trial Court after adducing evidence on record has rightly acquitted the respondent No.2 and others. He further submits that the impugned judgment dated 29.5.2000 of the learned trial Court is well reasoned and does not call for any interference by this Court. He prayed for dismissal of the appeal.

10. We have heard learned counsel for the appellant /complainant, learned Addl: Prosecutor General Sindh for the State Mr. Mr.Safdar Ali Ghouri, learned Advocate appearing on behalf of Respondent No.2 and have perused the available record and the impugned judgment with their assistance. Bare reading of the evidence adduced at trial reveals that there are material contradictions in the evidence of the witnesses. The complainant Haji Jogi stated in the F.I.R that both the eye-witnesses were attracted on the gun fire shots but P.W Muhammad Umer, had not stated any single work in the entire deposition that he was attracted on the firearm reports. The second eye-witness Allah Rakhio was given up by the prosecution, therefore, adverse inference under Article 129 (g) of the Qanun-e-Shahadat Order 1984 could easily be drawn, that in case, he was examined, he would have not supported the prosecution case. Even site plan prepared by Tapedar on the pointation of the complainant does not show the place of presence of complainant and even presence of accused/respondents No.1 to 3 at the place of incident. It is also admitted fact that the witness Mohammad Umer who is relative of the complainant and there are material contradictions in his evidence as well as in the evidence of complainant. The PW Muhammad Umer in his cross examination has deposed that they saw the accused persons from a distance of about 80 paces whereas complainant has belied the same while deposing in his cross examination that eyewitnesses have seen the accused persons from a distance of about 15 paces. The complainant in his examination in chief deposed that they were going towards their lands whereas PW Muhammad Umar deposed in his cross examination that he does not know about the lands of the complainant, even he has not seen the lands of the complainant. The complainant, PW Muhammad Umar, mashir Ghulam Ali and IO/SHO Shoukat Ali Rind have given contradictory evidence about the place of incident and have given different places about the spot of the occurrence. The complainant in his examination in chief deposed that incident took place near Village Peroz Bhatti, he himself contradicted the same version by giving different version in his cross examination by deposing that. “Accused persons killed my son on north side path of Dato Shakh”. His version is contradicted by PW Muhammad Umar, who deposed that, “Wardat was situated on the north side of the house of accused Budho”. The IO in his cross examination has given different place of vardat by deposing that, “the dead body of deceased Ali Hyder was lying ten paces from the house of deceased Ali Hyder”. This shows that the witnesses are not even sure about the place of incident and their version is not confidence inspiring. The P.W Muhammad Umar has not even explained his presence at the place of occurrence on the date and time of the incident. He seems to be interested, chance witness and not the natural witness of the incident.

11. From the perusal of evidence on record shows that, ocular testimony is also in conflict with the medical evidence. The complainant in his FIR has stated that two shots hit the body of deceased Ali Hyder; one at his left nipple and second on his right nipple. The Medical Officer in his cross examination has belied the same by deposing as under:-

“First postmortem I conducted to that of Ali Hyder only, one injury was caused on the chest of deceased Ali Hyder”.

Not only this, but complainant in his F.I.R stated that one injury was hit to the deceased Mst. Sehat Khatoon on her left side abdomen, but medical officer has belied the same, that there was no injury on the abdomen of deceased Mst. Sehat, but it was on her buttock. The medical officer stated as under:

“A firearm wound with charged burnt margins measuring 5 c.m in diameter round in shape going towards on left buttock”.

There is also contradiction in between evidence of P.W Muhammad Umar and the medical officer on the number of injuries sustained by deceased persons. The PW Muhammad Umer in his cross examination deposed that. “Deceased Ali Hyder sustained two gunshot injuries whereas Mst.Sehat Khatoon has sustained head injury”. This version is belied by medical evidence. The medical officer deposed that, deceased Ali Hyder has sustained only one injury and Mst. Sehat has sustained two injuries.

12. In view of the above discussed, we are clear in our mind that P.W Muhammad Umar, the only witness examined at trial is not truthful witness and his testimony is not confidence inspiring as he has failed to furnish any reasonable and plausible explanation for his presence at the scene of occurrence. There are material contradictions and improvements in the statement of the complainant and the eyewitness Muhammad Umar and their evidence is not in line with medical evidence, but it is in conflict with the medical testimony, which is even not supported by the recovery of crime weapon, Chemical/Ballistic expert reports. There is no corroborative evidence coming from inspiring witnesses to connect the respondents No.1 to 3 with the present case. It is well settled principle of law that in criminal cases every accused is innocent unless proven guilty and upon acquittal by a Court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such presumption. The reasons given by the learned trial Court in its impugned judgment, have not been found by us to be arbitrary, fanciful or capricious warranting interference by this Court.

13. For the foregoing reasons, we have dismissed the instant appeal by short order dated 25.04.2018, which reads as under:-

Heard learned counsel for the appellant, learned Additional Prosecutor General for the State and learned advocate for the respondent No.2, namely Anwar Ali. For the reasons to follow, this Criminal Acquittal Appeal filed against the judgment dated 29.05.2000, passed by learned Additional Sessions Judge, Kamber in Sessions Case No. 203 of 1996, re: State V/S Zulfiqar Ali alias Bhutto and others, emanating from Crime No. 134 of 1996 registered at Police Station Kamber for offence u/s 302, 34, P.P.C, is dismissed.

14. These are reasons of the same.

Judge

Abid H. Qazi/**