IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D-02 of 1996

Present:

Mr. Justice Khadim Hussain M. Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant : Allah Rakhio Soomro

Respondents : Abdul Rehman & another

Through Mr.Asif Ali Abdul Razzaq Soomro, Advocate

The State Through Mr. Khadim Hussain Khooharo, Addl. P.G.

Date of Hearing : 02.05.2018

Date of decision : 02.05.2018

J U D G M E N T

Amjad Ali Sahito, J.- The instant appeal is directed against the judgment dated 16.09.1996, passed by learned Additional Sessions Judge, Ratodero, in Sessions Case No.659/1986 St.Vs.Abdul Rehman and others, for offence punishable u/s.302,34 PPC, vide Crime No.01/1986, registered with Police Station, Ratodero, whereby respondents Abdul Rehman, Sikandar Ali and Mohammad Ibrahim were acquitted u/s.265-H (i), Cr.PC while extending them benefit of doubt.

2. The brief facts of the case are that on 01.09.1998, at 09.30 a.m, appellant/complainant Allah Rakhio Soomro lodged FIR with Police Station, Ratodero, in which he mentioned that Misri s/o Ali Sher is his father and they are cultivators. On that day, he along with his father Misri, his grand-mother Mst.Sharifan and his relative Nazir s/o Rasool Bux Soomro were coming to Ratodero town from their village with their personal work. At about 8.30 a.m, accused Abdul Rehman, Sikandar and Ibrahim duly armed with guns, were seen by them on the bank of watercourse. Accused Abdul Rehman while challenging fired at his father Misri, meanwhile accused Sikandar and Ibrahim also fired at his father, which hit him and he fell down. Thereafter they raised cries while the accused challenged not to come near them but due to fear of weapons, they did not go there. All the accused then fled away with their respective weapons. The complainant party then found Misri lying dead and leaving the witnesses over his dead body, the complainant went to police station and lodged the FIR against the accused to the effect that about 02/03 months prior to the incident, one Gulab Khan had restrained his father Misri not to keep manure in the street opposite his house, whereupon an altercation took place and on that pretext the deceased was done to death by causing him fire shot injuries.

3. The investigation followed during course whereof the Respondents No.1 to 3 were arrested and sent up to stand trial before the Court of learned Additional Sessions Judge, Ratodero.

4. On 22.10.1989, the charge (Exh.02) was framed against the respondents/accused, to which they pleaded not guilty and claimed trial. The prosecution then examined PW-01 complainant Allah Rakhio at Ex.12, he produced FIR of the present case at Exh.13. PW-02 Nazir Ahmed at Exh.14, he produced his 164 Cr.PC statement at Exh.15. PW-03 Mst.Sharifan at Exh.16, she produced her 164 Cr.PC statement at Exh.17. PW-04 Tapedar Manthar Ali at Exh.18, he produced sketch of vardat at Exh.19. PW-05 Mashir Muhammad Iqbal at Exh.20, he produced memo of place of incident, inquest report, mashirnama of arrest of accused at Exh.21 to 23 respectively. PW-06 Investigation Officer/ASI Abdul Razzaq at Exh.24, he produced mashirnama of recovery of gun at Exh.25, report of ballistic expert at Exh.26 and chemical report at Exh.27. PW-07 Medical Officer Dr.Muhammad Sarwar Javed at Exh.28, he produced postmortem report of deceased at Exh.30. PW-08 PC Shamasuddin at Exh.31. PW-09 LNC Sher Muhammad at Exh.33. Thereafter, the prosecution closed its side vide statement at Exh.35.

5. The statements of respondents/accused No.1 to 3 were recorded u/s.342 Cr.PC at Exh.36 to 38 respectively, wherein they denied the prosecution allegations leveled against them. They however neither examined themselves on oath in terms of section 340(2) Cr.PC. The respondent No.1 and 2 did not lead any evidence in their defense, while the respondents No.3 examined DWs Fateh Muhammad and Shamsuddin in his defence, who produced their 164 Cr.PC statements at Exh.40 to 43 respectively.

6. The learned trial Court after hearing the parties at length and appraisal of the evidence, recorded acquittal of the respondents/accused No.1 to 3 vide judgment dated 16.09.1996, which has been impugned by the appellant/complainant before this Court by way of filing instant acquittal appeal.

7. It is pertinent to mention here that the instant appeal is pending adjudication since 15.10.1996. Today, none is present for the appellant/complainant to address the Court. The record reflects that after 02.9.2005, none has appeared for the appellant. On the last two dates of hearing viz. 25.10.2017 and 13.02.2018, the matter was adjourned with a note of caution that in case none appears for the appellant then the appeal would be heard with the assistance of learned Addl.P.G for the State as well as learned counsel for the respondents. Moreover, it was reported by learned counsel for the respondents that one of respondent namely Muhammad Ibrahim died during pendency of appeal.

8. Learned counsel for the respondents contended that the respondents are innocent and have falsely been implicated in this case; that the FIR has been registered against the respondents/accused with due deliberation and consultation; that respondent Muhammad Ibrahim produced defence witnesses in support of his plea of false implication in this case who deposed that respondent Muhammad Ibrahim was with them at the time of incident. He further contended that the learned trial Court has rightly appreciated the evidence while recording acquittal of the respondents and thus lastly prayed for dismissal of the instant appeal.

9. Learned Addl.P.G for the State on the other hand argued that the learned trial Court has not evaluated the evidence in its true perspective when the names of the respondents No.1 to 3 are placed in the FIR with specific role of causing murder of the deceased and such version was supported by the PWs Mst.Sharifan and Nazir Ahmed in their statements. He further contended that medical evidence is consistent with ocular account and thus lastly prayed for awarding conviction against the respondents in accordance with law.

10. We have heard Mr.Khadim Hussain Khooharo, Addl.P.G for the State and Mr.Asif Ali Abdul Razzaq Soomro, Advocate for the Respondents No.1 & 2 namely Abdul Rehman and Sikandar and with their able assistance, we have perused the material available on record.

11. Learned counsel for the respondents so also learned Addl.P.G for the State are agreed that criteria of interference in the judgment against the acquittal, is not the same as against the cases involving a conviction. Scope of interference in appeal against acquittal is narrow and limited for the reasons that in an acquittal, the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty. In other words, presumption of innocence is doubled.

12. We have gone through the ocular evidence furnished by complainant Allah Rakhio as well as PWs Mst.Sharifan and Nazir Ahmed. It transpires that there are material contradictions in their evidence so also certain admissions have been made by them, which created doubt in the prosecution case. Complainant Allah Rakhio admitted his close relationship with the prosecution witnesses including mashirs and at the time of incident, his father was ahead of them and was followed by his mother but his mother’s name is Mst.Feroza, who was not cited as witness in this case. For the first time, they noticed accused from the distance of 10 to 15 paces away from them, while PW Nazir Ahmed deposed that he noticed the accused from distance of about 200 paces, when they came near a distance of about 10 to 15 paces from them, they challenged and fired at deceased Misri. Mst.Sharifan in her evidence deposed that accused fired from distance of about 10 to 12 paces away from them. Complainant and Mst.Sharifan deposed that PW Nazir came at their house wherefrom they proceeded towards Ratodero while PW Nazir Ahmed deposed that he met with complainant and deceased in the street but he had not disclosed that Mst.Sharifan was with them. Complainant in his evidence further deposed that firstly accused Abdul Rehman fired from the distance of about 5/6 paces while PW Nazir Ahmed deposed that accused fired from 10/15 paces away and Mst.Sharifan deposed that accused fired from distance about 10 to 12 paces away. Complainant further deposed that they raised cries of murder-murder but he did not see any person present in the lands around the place of incident and then the accused ran away thereafter 15/20 persons gathered there, while PW Nazir Ahmed deposed that they raised cries of murder-murder which attracted 10 to 15 persons of different castes who came after about 10 minutes of the incident, whereas Mst.Sharifan deposed that they raised cries of murder-murder, it was gross cutting season and some persons were available in the nearby lands but she could not say that those persons had witnessed the incident. Complainant deposed in cross examination that the police reached at vardat at 9.30 a.m, while Mst.Sharifan deposed that the police came at place of vardat after two hours of the incident, so also mashirnama of place of vardat reveals time that the police came at 10.30 a.m, as well as inquest report shows that the police prepared inquest report at 10.30 a.m, while as per FIR the incident had taken place at 8.30 a.m. The complainant in cross examination deposed that on second or third day of the incident he and other witnesses were called at the police station but mashirs were not with them. They had seen the accused persons confined at Police Station but PW Nazir Ahmed deposed that he was called only once at police station on the very same day at the evening time but mashirnama of arrest shows that accused were arrested on 18.9.1986. It creates doubt whether the accused/respondents were in custody after passing 2/3 days of the incident and they were shown to the complainant as well as witnesses.

13. There are sufficient contradictions in the evidence of mashir Muhammad Iqbal and Investigating Officer Abdul Razzaq. Keeping in view the contradictory statements of the Prosecution witnesses it is very clear that it was an un-witnessed incident and the prosecution witnesses 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 to believe that what enmity is existing between the parties, hence the testimony of witnesses cannot implicitly be relied upon and there is no physical guarantee of their presence on spot when no injury was sustained by any of witnesses.

14. The complainant had given the motive of the offence that deceased Misri and one Gulab Khan Soomro had exchanged harsh words over keeping of manure in the street about three months ago but neither Gulab nor his sons have been shown amongst the accused who committed the murder, therefore, the motive is shrouded in mystery.

15. It is also worth to mention that during trial, respondent Abdul Rehman has produced a medical certificate issued by Dr.Abdul Fatah Mahessar, Medical Officer, Taluka Hospital, Mahessar, which denotes that from 30.8.1986 to 03.9.1986 respondent Abdul Rehman was under his treatment. Furthermore, respondent Abdul Rehman has produced copy of FIR showing him as accused and there is civil litigation between Mohammad Mithal, Kauro and deceased Misri hence it reveals the enmity between deceased as well as complainant with other persons.

16. The above discussion shows that more than one discrepancy have come on record in the story of prosecution and of course the manner and method in which the complainant has attempted to prove his case by involving the respondents in a criminal case. Unfortunately, he has failed since the requirement of law in criminal jurisprudence is that the guilt of the accused has to be proved beyond shadow of doubt. By now it is settled law that even one discrepancy or dent in the prosecution story is enough to give benefit of doubt to the accused. In this case, there are numerous infirmities and contradictions in evidence of the prosecution witnesses.

17. The case in hand, there were number of infirmities and impugned judgment of acquittal in our considered view did not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in the appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In the case of State/ Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR-585), the Hon’ble Supreme Court of Pakistan has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion of the said judgment is reproduced as under:-

“We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

18. It is also a settled principle of law that the Superior Courts act slowly while interfering with order of acquittal, unless grounds for acquittal are perverse or wholly illogical or unreasonable. In the case reported as Mirza Noor Hussain vs. Farooq Zaman and 2 others (1993 SCMR-305), wherein the Hon’ble Supreme Court of Pakistan has held that:-

“…the judgment of the trial Court is supported by sound reasons and this Court cannot substitute its own findings in place thereof unless it also comes to the conclusion that the finding of the finding of the trial Court as well as that of the High Court are ‘artificial’, ‘shocking, ‘ridiculous’, ‘based on misreading of the evidence’ and ‘leading to miscarriage of justice’.”

In another case reported as Yar Mohammad and 3 others Vs. The State (1992 SCMR-96) Hon’ble Supreme Court of Pakistan has held that;-

“Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty, there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.PC. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice.”

In the case of Ghulam Sikandar and another vs. Mamraz Khan and others reported in PLD 1985 SC 11 it was held as under:

“………The Courts often in such like difficult situation have applied test of “impossibility” by asking questions; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place.” and “The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible.” And “The important test visualized in these cases, in this behalf was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.”

19. In view of the contradictions and lacunas/flaws in the prosecution case, it can safely be held that the prosecution has not succeeded to prove its case against the respondents/accused beyond shadow of reasonable doubt, as such the learned trial Court has rightly acquitted the respondents/accused by extending them benefit of doubt. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt not as a matter of grace but matter of right. In this context, the reliance is placed upon case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).

20. The sequel of the above discussion is that we are satisfied with the appreciation of evidence evaluated by the learned trial Court while recording acquittal of the respondents/accused by extending them benefit of doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed accordingly.

21. These are the detailed reasons of the short order dated 02.05.2018, announced by us.

J U D G E