IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No. D- 27 of 2013

PRESENT:

Mr. Justice Khadim Hussain M. Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant Imam Ali Depar through Mr.Ghulam Sarwar Soomro, Advocate.

Respondents: Muhammad Juman Depar & others through Mr.Habibullah G. Ghouri, Advocate.

Respondent No.5. The State through Mr.Khadim Hussain Khoonharo, Additional Prosecutor General.

Date of hearing: 16.05.2018.

Date of Decision: 16.05.2018.

J U D G M E N T

Amjad Ali Sahito, J. - Through this appeal, the appellant/complainant has challenged the judgment of acquittal, recorded by learned 3^rd Additional Sessions Judge, Dadu, dated 10.07.2013, in case F.I.R No. 60 of 2008 registered under section 302, 504, 337-Hii, PPC at Police Station Khairpur Nathan Shah, District Dadu.

2. The resume of the facts forming the background of instant appeal is that on 21.03.2008, complainant Imam Ali reported the matter to Police Station Khairpur Nathan Shah stating therein that about 5/6 months prior to lodgment of F.I.R, Juman Depar asked the complainant that his son, namely, Imdad Ali is their (karo). Whereupon, the complainant assured on Holy Quran that his son was innocent, which annoyed the rival party. On the day of incident i.e. 21.03.2008, the complainant along with his son Imdad Ali, brother Qasim and his nephew Muhammad Amin had left for Khairpur Nathan Shah town. After their work having been done, when they stepped back to Reejh Pur stop, they were confronted with two motorcycles on which accused persons namely, Muhammad Juman, Hussain both armed with pistols, Jaffar armed with KK, Allah Jurio empty handed were riding. In the meanwhile accused Juman and Hussain made straight fires from their pistols upon Imdad Ali, who, while receiving pistol shots fell down on the ground and while on the way to hospital, the injured succumbed to injuries. His dead body was sent to the mortuary for post mortem examination. I.O. prepared site plan, secured blood stained earth from the place of deceased, and took into possession a pistol from accused Juman. He also took into possession blood stained garments of deceased. He sent blood stained articles and empties to F.S.L and arrested accused Muhammad Juman, Hussain and Allah Jurio.

3. On completion of investigation, the accused/respondents were indicted, wherein they did not plead guilty and claimed trial. Prosecution in order to prove its case against the accused produced as many as 08 witnesses and closed its evidence. Accused in their statement under section 342, Cr.P.C professed their innocence and termed the prosecution case, as concocted and frivolous. They did not wish to produce defence evidence, nor opted to be examined on oath.

4. After hearing arguments of learned counsel for the respective parties, learned 3^rd Additional Sessions Judge, Dadu, vide its judgment dated 10.07.2013, acquitted all the accused by extending benefit of doubt in their favour. Hence this appeal.

5. Learned counsel for appellants contends that the prosecution has proved its case against the respondents 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 the fact that the deceased Imdad Ali was Karo of the accused party and on that pretext, he was done to death; that crime weapon, pistol recovered from the accused Juman and empties recovered from the spot, have been sent to FSL for analysis, whose report is in positive, fully support and corroborate the version of prosecution. He maintained that injuries on the person of deceased also corroborates the recovered crime weapon. He lastly submitted that the learned trial Court has erred in law while acquitting the accused/ respondents by extending benefit of doubt in their favour.

6. Conversely, learned counsel or the accused/ respondents while defending the judgment of the trial Court vividly argued that prosecution has miserably failed to prove its case against the respondent No.1to 4 as prosecution case is pregnant with contradictions and doubts; that there are major contradictions and improvements in the statements of the P.Ws, hence, respondents have been rightly acquitted by the learned trial Court.

7. Heaving heard the counsel for the respective parties and perused the record. Perusal of the record reveals that in the murder of deceased Imdad Ali, there are three eyewitnesses of the incident. i.e. complainant Imam Ali as P.W.01, Muhammad Ameen as P.W.02 and the Rickshaw driver, namely Zahid Ali as P.W.08. There are material contradictions in the evidence of prosecution witnesses. Since the complainant and Muhammad Ameen are closely related to each other, therefore, the evidence of Rickshaw driver P.W-8 Zahid Ali is very much material. The complainant during cross examination admitted that there were about seven persons in the Rickshaw and 8^th was Rickshaw driver. However, he only examined P.W Muhammad Ameen and rickshaw driver PW-8 Zahid Ali but unfortunately this witness did not support the prosecution version. In this regard, he stated in his examination in chief as under :-

“when we reached at Rajpur stop where some persons fired upon us whit hit Imdad. Due to that he fell down and I remained unconscious”.

During cross examination he stated as under:-

“It is correct to suggest that complainant is my relative. It is correct to suggest that accused are also my relatives. It is correct to suggest that at the time of incident accused and complainant was not present.”

This witness is the star witness of the case who being relative of both the parties i.e. complainant as well as accused party has categorically stated that neither the accused was present on the spot nor complainant. Accordingly the present witness was declared as hostile by the trial Court. However, during the cross examination of learned DDPP, nothing adverse came on record to effect the case of accused. Accordingly, after giving such statement, this witness has demolished the whole case declaring the presence of complainant as well as of the accused doubtful. Since the complainant and PW Muhammad Ameen are closely related to each other, therefore, the evidence of this witness is considered, hence ocular version of prosecution is contradictory and not corroborated by the independent evidence as such does not inspire confidence. The only independent witness has refused to support the prosecution case, therefore, the evidence of interested witness cannot be relied upon to warrant the conviction on such type of evidence.

8. The medical evidence is also in conflict with the ocular account. According to prosecution story, deceased sustained two firearm shots while the complainant stated that accused Juman fired from his pistol upon his son which hit him on his hack and fire shot by accused Hussain also hit deceased on his back, who fell down on the ground while accused Jaffar is alleged to have fired in the air. As per version of complainant only two shots were fired by accused; one by accused Juman while other by accused Hussain but according to the evidence of MLO the accused received six firearm injuries, out of them three were entrance and three were exit wounds. In this regard, the Medicolegal Officer P.W-5 Dr. Abdul Hameed admitted during cross examination that all three injuries are through and through hence became six injuries.

9. As far as arrest of accused persons is concerned, the IO of the case SIP Ameer Bux was examined at trial who stated that he arrested the nominated accused Muhammad Juman and Hussain Depart and Allah Jurio from Kari Mori near Khanput in presence of mashirs Nazir Ahmed and Zahid Depar. The arrest of accused is doubtful as alleged by the prosecution inasmuch as the IO has stated in his evidence that he arrested both the accused in presence of mashir Nazir Ahmed and Zahid Depar. However, in support of his version, prosecution examined mashir Zahid Depar who denied the memo of arrest Ex.7/A and stated that though Ex.7/A bears his signature however, he does not know its contents. He has further stated in his evidence that he regained his consciousness in hospital of KN Shah where he saw that Rasool Bux was standing there. He admitted the presence of co-mashir Nazir Ahmed in the hospital however he stated that the sobedar (IO) obtained his signature on 2/3 papers on which something was already mentioned but he does not know the contents. This all shows that mashir Zahid Depar has totally denied the arrest of accused in his presence. Hence the arrest of accused as alleged by the prosecution is also doubtful.

10. As far as recovery of crime weapon on the pointation of accused persons is concerned, PW Inspector Ameer Bux stated that on 18.7.2008 he interrogated accused Juman and Hussain who during interrogation agreed to produce the crime weapons. On their pointation, the weapons were produced by both the accused from grayed of Lolja, separately. These proceedings were witnessed by mashirs namely P.C Muhammad Khan and HC Manthar, however, during the course of trial, none from both the mashirs of recovery were examined by the prosecution in order to corroborate the evidence of seizing officer. Accordingly, the only evidence of Investigating Officer is not sufficient to believe the recovery unless it is supported by evidence of mashir. The IO in his examination admitted that the place of recovery is open place and public has easy access over there. In such a situation, it was incumbent upon the prosecution to at least examine one of the mashirs of the recovery to corroborate the evidence of seizing officer but non production of the same piece of evidence make the recovery doubtful.

11. So far as the motive of murder of deceased Imdad Ali is concerned, it seems that allegedly he was declared Karo by the accused party therefore, complainant alleged that present accused have committed the murder of his son on the above enmity though during the evidence, the complainant has not uttered a single word that the motive behind the murder was enmity with the accused over the above allegation. In such view of the matter prosecution has also failed to prove the motive behind the murder of son of complainant Imdad Ali against accused.

12. In view of the above discussion, it is very clear that it was an un-witness incident and the prosecution witnesses i.e. Complainant and P.W Nazir Ahmed 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 in view of the statement of P.W No.8 Zahid Ali, there is no physical guarantee of their presence on spot.

13. 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.

14. 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.”

15. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondents No.1 to 4, namely, Muhammad Juman, Hussain, Alah Jurio and Jaffer by extending the benefit of doubt, after proper appraisal of evidence for no exception can be taken.

16. 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 respondents, namely, Muhammad Juman, Hussain, Alah Jurio and Jaffer with cogent reasons, therefore, the appeal has no merits and is dismissed being without any substance.

Judge

Abid H. Qazi/**