IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Acquittal Appeal No. D- 32 of 2003
Present:
Mr. Justice Khadim Hussain Shaikh
Mr. Justice Amjad Ali Sahito
Appellant: Nazir Hussain Katpar through Mr. Altaf Hussain Surahio, Advocate.
Respondents: Hazoor Bux Bhutto through Mr. Asif Ali Abdul Razak Soomro Advocate.
The State through Mr. Khadim Hussain Khooharo, Addl. P.G.
Date of Hearing : 08.05.2018 Date of Judgment : 08.05.2018.
J U D G M E N T
Amjad Ali Sahito, J.- Through the captioned Criminal Acquittal Appeal, appellant Nazir Hussain has called in question judgment dated 30.06.2003, passed by Special Judge, Suppression of Terrorist Activities, Larkana in Special Case No. 20 of 1999 re. the State v. Hazoor Bux arisen out of Crime No.34 of 1999 for offence under section 302, 324, PPC registered at Police Station Naudero, whereby respondent Hazoor Bux has been acquitted.
2. Briefly, the facts of the case are that on 27.03.1999 appellant/ complainant Nazir Hussain lodged report at Police Station Naundero stating therein that his younger brother, namely, Mureed Abbas, age about 24/25 years was clerk in Municipal Committee, Naundero and was also a singer. He had taken one room from Allah Dino Bhutto, situated at Old Bus Stand Naundero, on rent. It is alleged in the F.I.R that on the day of incident, complainant along with his brother Mureed Abbas and his friends, namely, Muhammad Bux Mahar, Abdul Qayoom Kartio and Shahzado Shaikh were chit-chatting in the said room while electric bulbs were burning. Suddenly, at about 9.15 p.m. accused Hazoor Bux son of Mohammad Ali Bhutto, resident of Naudero came from door of southern side, he was armed with Klashnikov and gave hakal to his brother Mureed Abbas that he will not spared as he is his ‘Karo’. By saying so, he started firing with his Klashnikov at Mureed Abbas, which hit on his face and other parts of body. It is further alleged that P.Ws Muhammad Bux and Abdul Qayoom gave hakals to accused not to kill Mureed Abbas on which, he also fired at Muhammad Bux which hit him on his right arm, near shoulder, second shot fired by accused hit Abdul Qayoom Kario on his right buttock. They started bleeding and fell down. It is alleged that complainant and P.w Shahzado raised cries and entreated the accused Hazoor Bux, where-after on seeing his brother falling over Talpatri (mat), the accused went away along with his weapon. He further alleged that thereafter they went over Mureed Abbas and saw that he has sustained firearm injuries on various parts of his body. He was bleeding and had died. Leaving P.W Shahzado Shaikh at the place of wardat, the complainant appeared at Police Station Naudero and reported the matter to the above effect.
3. After usual investigation, the case was sent up before the Learned Special Judge for Suppression of Terrorist Activities, Larkana and a formal charge under section 302, 324, PPC was framed against the respondent No.1 to which he pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, examined P.W No.1 complainant Nazir Hussain at Ex.11, he produced the F.I.R at Ex.11-A, P.W No.2 Injured Muhammad Bux at Ex.12, P.W No.3 Shahzado at Ex.13, P.W No.4 Medical Officer Dr. Badaruddin Shaikh at Ex.14, he produced provisional medical certificate of injured Abdul Qayoom at Ex.14-A and attested copy of final medical certificate at Ex.14/B, P.W No.5 Mushtaque Ahmed at Ex.15, he produced mashirnama of wardat, inquest report, mashirnama of injuries of injured PWs and mashirnama of recovery of KK, Magazine and bullets at Ex.15-A to 15-E respectively, P.W No.6 injured Abdul Qayoom at Ex.16, P.W No.7 Tapedar Naudero namely, Dad Muhammad, at Ex.17, he produced site sketch in duplicate at Ex.17-B, P.W No.8 corpse bearer PC Talib Hussain at Ex.18, he produced receipt of dead body at Ex.18-A, PW No.9 Dr. Mohammad Ali Bhutto, at Ex.19, he produced postmortem report of deceased Mureed Abbas at Ex.19-A and final medical certificate of injured Muhammad Bux at Ex.19-B, P.W No.10 Investigating Officer Inspector Muhammad Usman Sabhayo at Ex.20, he produced roznamcha entry No.13 dated 02.04.199 at Ex.20-A, chemical report at Ex. 20-B, Ballistic report at Ex.20-C.
5. The prosecution side was closed by D.A/SPP vide his statement dated 04.03.2003 at Ex.21 and statement of accused was recorded under section 342, Cr.P.C. After hearing learned counsel for the respective parties, the trial Court acquitted the respondent No.1 by extending benefit of doubt in his favour vide his judgment as stated in Para No.1 supra. Hence this appeal.
6. Learned counsel for the appellant contends that the prosecution has proved its case against the respondent No.1 through trustworthy, reliable and cogent evidence; that both the parties are co-villagers and there is no chance of misidentification; that prosecution has successfully established its case; the F.I.R has been promptly lodged; the recovery of crime weapon fully support and corroborate the version of prosecution. His last attack on the judgment was that the learned trial Court has erred in law while acquitting the accused/respondent No.1 by extending him benefit of doubt in his favour.
7. Conversely, learned counsel for accused/respondent No.1 while defending the judgment of the trial Court vividly argued that prosecution has miserably failed to prove its case against the respondent No.1 as prosecution case is pregnant with contradictions and doubts; that both the injured P.Ws, being star witnesses of the occurrence, have not supported the case of prosecution, hence the respondent No.1 has rightly been acquitted by the learned trial Court.
8. Having heard the counsel for the parties, record perused, which reveals that as per prosecution case, complainant Nazir Hussain was available at the room rented out to his brother deceased Mureed Abbass along with P.Ws Shahzado, Muhammad Bux and Abdul Qayoom and in the meanwhile accused/respondent No.1 duly armed with Klashnikov came there, fired upon Mureed Abbas, Muhammad Bux and Abdul Qayoom, as a result whereof Mureed Abbas succumbed to injuries at the spot while Muhammad Bux and Abdul Qayoom received serious injuries. In cross examination, the complainant deposed that he had come to the place incident at 9-00 p.m. Deceased and injured P.Ws were already sitting at place of incident before his arrival including P.W Shahzado. He deposed that his house is situated at 3/ 4 furlongs away from the place of incident and that house of Shahzado is situated near his house. He deposed that prior to the incident accused had never declared deceased as “KARO” but at the time of incident he declared him as “KARO”. He deposed that he cannot give the sitting position of all of them as four years have passed. He stated that he was sitting with the deceased at the time of incident. He also deposed that accused was about 2/3 paces away from the deceased when he fired at him. To a question that when complainant was sitting very near to the deceased whether his cloths were stained with blood or not, he deposed that he did not remember if his clothes stained with blood or not. He was not able to say if the cloths of P.W Shahzado were stained with blood. He denied the suggestion that the incident was not witnessed by him but he has given the name of accused in suspicion. From the above statement of the complainant if the version of the complainant that he was with his brother deceased Mureed Abbas is considered to be correct, then he was also at the mercy of respondent, but was not fired at, though on raising cries, the respondent fired at P.Ws Muhammad Bux and Abdul Qayoom, which fact leads to the conclusion that in fact , complainant was not present at the time of alleged occurrence and has been procured by the prosecution later on as witness of the occurrence.
9. There is another aspect of the case that during trial, the injured P.Ws Muhammad Bux and Abdul Qayoom have denied the presence of the complainant at the time of incident. P.W Muhammad Bux has deposed that on 27.3.1999 at about 9-00 or 9-15 p.m. this incident had taken place. Mureed Abbas was singer and known to him. On the night of incident there was function, therefore, he had gone to Mureed Abbas for invitation. Who was sitting at Sufi (room) situated at Old Bux Stand, Naundero. He has further deposed that he, Abdul Qayoom and one friend of Mureed Abass were sitting at Sufi and chit chatting when at about 09.15 one person came there and started firing at them with the result he, Mureed Abbas and Abdul Qayoom received firearm injuries. He also stated that many bullets hit Mureed Abbas and he received bullet injuries on his right arm and shoulder. He further stated that after receiving injuries they went unconscious and that public had taken him to hospital. He further deposed that he regained his senses in hospital when police came and recorded his statement. In the statement recorded by police P.W Muhammad Bux categorically stated that accused was not identified by him and that accused present in court was not seen by him at the place of incident and further stated that he does not know who lodged the F.I.R.
10. The testimony of injured P.W Abdul Qayoom belies the version of complainant and corroborates the version of injured P.W Muhammad Bux. P.W Abdul Qayoom reiterated the same facts as narrated by PW Muhammad Bux.
11. Admittedly, the occurrence has taken place in a room at Old Bus Stand, Naundero thus the evidence of both the injured P.Ws Muhammad Bux and Abdul Qayoom, the star witnesses of the incident, about the identification of respondent No.1/ Hazoor Bux, is based on hearsay. Both the P.Ws have admittedly seen the respondent No.1. in Court about 2/3 times before recording of their evidence therefore, identification of respondent No.1 by these witnesses in Court is not reliable and of no consequences.
12. The medical evidence of P.W-4 Dr. Badaruddin and P.W-9 Dr.Muhammad Ali Bhutto, does not connect the respondent No.1 with the commission of murder of deceased Mureed Abbas and causing injuries to P.Ws Muhammad Bux and Abdul Qayoom. Even otherwise, medical evidence is a type of supporting evidence which may confirm the ocular account with regard to the receipt of injury, nature of the injury, kind of weapon etc. used in the occurrence but it would not identify the assailant. In the present, there is no convincing, direct or circumstantial evidence available against the respondent No.1 connecting him with the commission of this offence.
13. As far as motive is concerned, the complainant in his Examination-in-Chief has said that soon after his arrival at the place of incident, respondent Hazoor Bux challenged the deceased Mureed Abbas by saying that he is ‘Karo’, therefore, he will not be spared. In cross examination, he admitted that prior to the incident respondent Hazoor Bux had not declared deceased as “Karo”, but at the time of incident he had declared so falsely, it is unbelievable that prior to the incident respondent had not declared the deceased Mreed Abbas as ‘Karo’ and committed his murder. PW-3 Shahzado in his evidence has also disclosed that accused had challenged Mureed Abbas by saying that he is his ‘Karo’. The evidence of complainant Nazir Hussain and P.w Shahzado has already been disbelieved as their presence at the time of occurrence is found doubtful. Injured P.Ws Muhammad Bux and Abdul Qayoom who are material eyewitnesses in the evidence have not said anything that respondent No.1 had declared as ‘Karo’. Even otherwise, there is no evidence with which it can be gathered that respondent No.1 had declared the deceased ‘Karo’ therefore, the prosecution has failed to prove the motive for the commission of the offence.
14. The evidence of I.O of the case and mashirs shows that no independent person from the locality was made mashir but mashirs who had already acted so i.e. place of wardat, injuries, inquest report and arrest of the respondent No.1 were taken by the IO from the police station at the time of recovery. Therefore, there is violation of provisions of Section 103, Cr.P.C. Moreover, recovery was made from graveyard which is an open place and accessible to everyone. The Ballistic expert report Ex.20 produced by the IO shows that the crime weapon i.e. Klashnikov sent to him was not in proper working order in its present condition and no test empty could be prepared through it, hence no definite opinion could be expressed as to whether or not the eight 7.62 mm bore crime empties were fired through it.
15. There are sufficient contradictions in the evidence of prosecution witnesses. Keeping in view the contradictory statements of the Prosecution witnesses it is very clear that it was an un-witness incident and the prosecution witnesses i.e. Complainant and P.W Shahzado being closely related to the deceased have made false statements on account of their blood relationship. The ocular version is not trustworthy and that being no independent corroboration of ocular evidence from independent and unimpeachable source what enmity is being alleged, hence the testimony of both these witnesses is not worth to be relied upon and there is no physical guarantee of their presence on spot when no injury was sustained by them.
16. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well-embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused.
17. It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remains slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477) the Honourable apex Court observed as under:-
“that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non reading of evidence…law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.
Similar view was reiterated by the Honourable apex Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-
“Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.”
18. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondent No.1 Hazoor Bux by extending the benefit of doubt, after proper appraisal of evidence for no exception can be taken.
19. In the light of principles laid down by the apex Court in the above cited judgments, we see no illegality committed by the learned trial Court, while acquitting the respondent Hazoor Bux with cogent reasons, therefore, the appeal has no merits and is dismissed being without any substance.
20. These are the reasons of our short order dated 08.05.2018.
Judge
Judge
Abid H. Qazi/**