IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Acquittal Appeal No.126 of 2013

Muhammad Shafiq……………………….………...………………...Appellant

Versus

The State & others………………...………………………..……Respondents

Date of Hearing: 26.10.2017

Applicant through Syed Abdul Waheed, advocate.

Respondents 2 to 5 through Mr. Assamul Haque, advocate.

Respondent No.1 (State) through Mr. Muntazir Mehdi DPG

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The captioned criminal acquittal appeal has been preferred against the acquittal judgment dated 28.02.2013, passed by the Judicial Magistrate-XII, Karachi Central, in Cr. Case No. 1765 of 2010, FIR No. 380 of 2010, under Sections 147, 148, 149, 337-A (i), 342, 506-B, 382 & 34 PPC registered at Police Station Jauharabad, Karachi whereby the Respondents No. 2 to 5 have been acquitted.

2. The prosecution case as deciphered in the FIR is that the complainant/appellant is a religious teacher (معلم) in a maderssa. On the day of the incident i.e. 12-06-2010, one child was brought by his father for religious education who was not ready to sit in class. The complainant in presence of his father directed the child in a harsh manner to sit in the class. Meanwhile two persons entered and protested regarding harsh treatment with the said child. The complainant advised both the persons not to interfere in the affairs of maderssa but they annoyed and started abusing the complainant. Afterward accused Moulana Yahya Ludhyanvi with a guard also came there and he caused fist blows to the complainant and his guard also caused butt blows of Kalashnikov to the complainant and they forcibly took the complainant to Maderssa Zakrya. The complainant was confined there in a room and tortured while the accused persons also extended threats of murder and they also snatched Rs. 30,000/- cash given to him by Imam Sahib for maderssa. They also snatched mobile phone of the complainant. The complainant disclosed the names of other accused persons as Ahmed, Uzair, Zafar Iqbal and Rafeh Siddiqui. Subsequently, on the information of people of locality, General Secretary, Masjid-e-Falah namely Iqbal Hussain called 15-police and police rescued the complainant from the clutches of the accused persons.

3. As soon as the investigation completed, the police submitted Final Report against accused persons through DPG and the trial Court took cognizance of the case. After fulfilling the requisite formalities, the trial Court framed charge against the accused persons to which they pleaded not guilty and claimed trial. As such trial initiated and the trial Court examined the witnesses produced by the prosecution and also recorded the statements of accused persons under Section 342 CrPC. After evaluating the evidence produced, the trial Court came to the conclusion that the prosecution could not prove the case, as such the accused persons were acquitted from the charge through the impugned judgement. The complainant/appellant questioned the verdict of acquittal by preferring the instant acquittal appeal.

4. I have heard the arguments advanced and have gone through the available record with the assistance of the members of the bar representing both the parties as well as the learned DPG.

5. The learned counsel for the appellant submits that the accused persons have acted with highhandedness and not only abducted the complainant/appellant but also humiliated and maltreated him as well as looted valuable articles and Rs.30,000/- from him after beating him mercilessly. He submits that sufficient evidence was produced before the trial Court but the learned trial judge could not appreciate the evidence produced during trial. He points out that the torture and maltreatment is established by medical evidence. However, he frankly admits that the medicolegal officer was not examined by the prosecution and he ought to have been examined.

6. The learned counsel for the respondents supports the impugned judgement by submitting that the prosecution could not establish its case before the trial Court beyond reasonable doubt. According to him, the crux of the case as per FIR is that a minor boy was brought for religious education, who was improperly treated at madrassa, due to which the accused persons allegedly interfered. According to him the said minor and his father were important witnesses but neither the minor nor his father was examined and even they were not entered in the calendar of prosecution witnesses.

7. The learned DPG also supports the impugned judgement by submitting that corroborative piece of evidence in the shape of medical evidence, recoveries and the evidence of minor and his father were not brought on record.

8. In the instant case, serious allegations are levelled against the religious teacher and administrator of a maderssa by a teacher of another maderssa. Apparently, the incident is the result of religious intolerance between different schools of thought and religious groups within same school of thought, which is unfortunately nowadays a common phenomenon amongst Muslim religious personages. In the instant case, the allegations of maltreatment, abduction, torture and robbery are levelled but no confidence inspiring evidence could be brought on record by the prosecution during trial. It is alleged that the complainant was tortured and he was medically examined but the medicolegal officer could not be produced to verify the contention of the complainant as well as the gravity of torture, if any. Although, the complainant has levelled allegation of snatching mobile phone and Rs. 30,000/- but no recovery was effected during investigation. It is alleged that the General Secretary of Masji-e-Falah called 15 (Police Emergency Centre) from landline telephone of his home but regarding this aspect no evidence was brought during trial. It is stated by the complainant that the bone of contention was the alleged interference by accused persons regarding issue of harsh treatment of complainant with a child in presence of his father but neither the child nor his father were examined by the prosecution.

9. The learned counsel for the appellant could not point out any misreading or non-reading of the evidence by the trial Court. I could not trace out any legal or technical flaw or defect in the proceedings taken place before the trial Court. On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. It is also a settled legal position that if the trial court's view is possible and plausible, the Appellate Court should not substitute the same by its own possible views. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered unless it is totally perverse or wholly unsustainable.

10. In view of the above observation, I am confident to hold that the guilt of the accused persons could not be established during trial, as such the learned trial Court has rightly acquitted the accused persons. Appeal dismissed.

The above are the reasons of short order dated 26-10-2017.

J U D G E