HIGH COURT OF SINDH AT KARACHI
Criminal AcquittalAppeal No.133 of 2014
Present: Mr. Justice NaimatullahPhulpoto
Mr. Justice Abdul Maalik Gaddi
Appellant : Mst. Saira through
Mr.Imtiaz Ali Effendi, Advocate.
Date of hearing : 05.12.2017
Date of Judgment : 22.12.2017
J U D G M E N T
Abdul Maalik Gaddi, J.–This criminal acquittal appeal has been filed by the appellant against the judgment of the learned IIIrd Additional District &Sessions Judge, Malir Karachi, dated 12.03.2014 in Private Complaint No.2 of 2009, whereby the learned trial Court after full dressed trial, acquitted the respondents/accused under Section 265-H(1), Cr.P.C.
2. Brief facts of the case as according to complainant are that on 20.06.2004, her husband was feeding goat outside the house in the street at about 04.00 p.m., the accused with whom, they were already having dispute over the house, came there and started beaten her husband. On his hue and cries, she and her son Syed Muhammad Shahid came out from the house and tried to rescue his father from accused, but they gave him kicks and fists blow. In the meantime, accused Yaseen shouted to accused Javed and Moeen to kill her husband, for which both accused badly assaulted and accused Javed playing cricket bat strike on the head of her husband and accused Yaseen while snatching the cricket bat also gave on the abdomen stomach, as a result, her husband got seriously injured and fell down on the ground. She further alleged that one mohallah people called the police, who took the injured and brought at Jinnah Hospital. Accused persons flee away from the spot. Her husband was admitted in the hospital and during his treatment, who has been expired due to injuries. Thereafter, complainant approached to police station Malir City and FIR was lodged by the police, which was subsequently disposed of by the police under ‘C’ class with the collusion of accused. Consequently, complainant has filed private complaint under Section 200 Cr.P.C, under Section 302, PPC against the present accused.
3. Trial Court framed the charge against the accused.Accused pleaded not guilty and claimed to be tried.
4. At trial, complainant examined the following witnesses:-
(i) PW-1/Complainant Mst. Saira Begum at Ex.4;
(ii) PW-2 Syed Muhammad ShahidChistiat Ex.5
5. Statements of accused were recorded under Section 342, Cr.P.C. at Ex.6 to Ex.11 respectively,wherein they have denied to have committed the offence. Accused neither examined themselves on Oath nor led any evidence in their defence.
6. It is pertinent to mention here that this acquittal appeal has been presented before this Court on 12.04.2014 and since then, neither it has been admitted to regular hearing nor notices were issued to the respondents and today this appeal is fixed for its admission or otherwise, therefore, counsel for appellant has been heard.
7. Mr. Imtiaz Ali Effendi, learned counsel for the appellant contended that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the accused/respondents are not supportable from evidence on record. He further submitted that both the prosecution witnesses have fully supported the prosecution case and the case is substantial by orally and documentary evidenceon the basis of which accused/respondents could not be acquitted.
8. We have heard the learned counsel for the appellant at a considerable length and have perused the evidence, documents on record and impugned judgmentwith his able assistance.
9. It is an admitted fact that much prior to filing of Direct Complaint by the appellant, appellant hadlodged FIR against the accused of same incident and after thorough investigation, said FIR was disposed of in ‘C’ class by the concerned Magistrate, but the said order had not been challenged before any appellate forum, as such, said order attained finality. It also appears from the record that in order to prove the allegations in Private Complaint, appellant Mst. Saira andher son namely Shahid have been examined; they havefailed to produce postmortem report of deceased Syed Irfan Ali to show his cause of death, even, Medico Legal Officer has also not been examined.Perusal of their evidence also showing thattheir testimoniesare worthy of no credit as they have been making inconsistent statements during investigation and in Court, which fact has been observed by the learned trial Court in its impugned judgment elaborately while acquitting the respondents/accused. For the sake of convenience, it would be proper to reproduce the operative part of the impugned judgment, which reads as under:-
“From the perusal of the evidence, it is clear that there is no specific number of case and role mentioned by the complainant in her complaint. There are material contradictions in between the complaint and her statement. The complainant has admitted that the incident was taken in thickly populated area, but she did not examine any private witness, except her son. Mohallah people were present and they have seen the incident, but no one has been examined in support of her contention. She disclosed at the time of death of her husband, his age about 60 years.
On other, the son of complainant deposed that his father was getting treatment from hospital and at last on 18.01.2006, his father was died. During cross examination, he was admitted that his father was died after two years of the incident. He has also admitted that no postmortem was conducted of the death of his father. He has also admitted that he has filed the present complaint after five years of the incident.
It is pertinent to mention here that the statement of complainant under section 200 Cr.P.C. recorded before the Magistrate and her statement recorded in the court quite different from each other. First of all FIR lodged by complainant disposed of under “C” class. The incident took place in the year 2004 and present complaint filed on 17.8.2009 i.e. after five years of the incident. Further the medical report shows that the age of the husband of the complainant was 85 years and it was issued on 20.6.2004. Neither the postmortem report of husband of complainant filed by complainant nor the cause of death of her husband is on record. Further, when the police called by Mohalla people at that time bat was not recovered from the place of incident from it the accused persons beaten the husband of the complainant.
I would like to note that admittedly the father of PW-2 Syed Muhammad Shahid and husband of the complainant filed a suit No.19/1994 in the Court of Senior Civil Judge, Malir Karachi, which was dismissed on 13.12.2004. It is came on record that there is a civil dispute between the complainant and accused persons. During recording statement the son of complainant (Ex-05) he stated that the accused persons taken their house on rent and thereafter illegally occupied the same and the titled documents of this house was also lying in the said house, the accused persons illegally obtained the title documents which was in the name of his paternal uncle namely Rasheed who was issueless. It means that the complainants was in remedy if the accused persons were tenants they/she can be filed rent case against them, when the accused persons illegally occupied the house that why she did not file suit for recovery of possession under the relevant laws.
In view of what has been discussed above, I am clear in my mind that the complainant has failed to prove the charge against the accused persons and her case is not free from doubt. The point No.1 is answered is not proved.”
10. From the perusal of evidence recorded by trial Court and impugned judgment, it appears that the judgment of the trial Court is based upon sound reasons. Respondents were acquitted by trial Court mainly on the ground that the testimony of witnesses is worthy of no credit as they have been making inconsistent statements during investigation and in Court.It reveals from the record that learned trial Court after going through the evidence as well as documents on record has rightly acquitted the accused. Judgment of the trial Court is neither perverse nor arbitrary. So far as, the appeal against acquittal is concerned, after acquittal respondent/accused has acquired double presumption of innocence, this Court would interfere only if the judgment/order was arbitrary and against the record, but in this case, there are number of infirmities and contradictions in evidence of the prosecution witnesses.In this context, reliance can be place on a judgment titled as Haji Paio Khan v. Sher Biaz and othersreported as 2009 SCMR 803. Relevant observations therefrom are reproduced herein below:-
“It needs no reiteration 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.”
11. Standards of assessing evidence in appeal against acquittal are different from those laid down for appeal against conviction, while dealing such appeals Courts are always slow in exercising jurisdiction unless it is found that gross injustice had been done, while the judgment impugned is neither perverse nor shocking or contrary to the evidence available on record, as happened in this case.
12. For what has been discussed above, we find no merits in this appeal, which is dismissed in limine.
JUDGE
JUDGE