HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No. 136 of 2018
Appellant : Iqbal Hussain, in person
Respondents : Ms. Humaira Aftab, Advocate for
Respondent No.1
Mr. Khadim Hussain Kooharo, APG
Date of hearing : 26.03.2019
Date of Judgment : 26.03.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– The captioned appeal is directed against the judgment dated 15.02.2018, passed by the learned XIIIth Civil Judge & Judicial Magistrate, Karachi Central, in case crime No. 42/2016 registered under section 392, 427, 337-A(i), 34 PPC of P.S Hyderi Market, Karachi, whereby the learned trial Court while extending benefit of doubt, acquitted the respondent No.1 (Mushtaq Ahmed) under Section 245(i) Cr.P.C.
2. Brief facts of the case are that on 01.04.2016 at about 0400 hours, the complainant’s son Sajjad Hussain who was driving Rikshaw, Mushtaq seated in the Complainant’s son’s Rikshaw and demanded from him Rs. 3000 per month, the said Mushtaq used abusive language and also beaten the complainant’s son as well as issued threats of killing to him. Thereafter, at about 2000 hours, three persons came at outside the house of complainant bearing No. F-48, Block F, North Nazimabad, Karachi, one of them was holding pistol in his hand other two had iron rods who attacked the complainant’s son and also beaten complainant’s son and damaged the wind screen of Rikshaw. Thereafter, the said persons also snatched the wallet of complainant’s son containing Rs.10,500/- original computerized national identity card and Nokia mobile phone having sim No. 0301-3924804 from the complainant’s son. At about 2300 hours they returned the mobile and CNIC to the complainant’s son through unknown persons.
3. The trial Court framed charge against the accused/respondent under the aforementioned offences to which the accused/respondent pleaded not guilty and claimed to be tried.
4. At trial, the prosecution examined following witnesses:_
5. These witnesses were cross-examined by the counsel for the accused. Thereafter, learned ADPP closed the prosecution’s side vide Ex.09.
6. Statement of accused under section 342 Cr.P.C was recorded at Ex.10, wherein he claimed that this is a false case against him as he has sold the Rikshaw to the son of complainant on installments and for not paying the installments and when demanded installment, he implicated him in this case. However, respondent did not examine himself on oath nor lead any evidence in his defence.
7. Appellant Iqbal Hussain, who is present in person, submits that the judgment passed by the learned trial Court is perverse and the reasons are artificial, viz-a-viz evidence on record that the grounds on which the trial Court proceeded to acquit the respondent, are not supportable from the documents and evidence on record. He further submits that the respondent has been directly charged and involved in the commission of the offences and the discrepancies, if any, in the statements of the witnesses, are not so material on the basis on which respondent could be acquitted. He further contended that the learned trial Court has based its findings of acquittal mainly on the basis of minor contradictions of non-vital point in the statements of prosecution witnesses and that the prosecution evidence has not been properly appreciated.
8. Conversely, Ms. Humaira Aftab, Advocate for the respondent No.1 argued that it is the false case, which has been registered on the basis of hearsay evidence. She submits that infact no incident has taken place in a fashion as stated in the FIR. She further submits that the evidence so brought on record is contradictory to each other, therefore, no reliance can be placed on the contradictory evidence and according to her, the learned trial Court has rightly acquitted the respondent.
9. Learned Additional Prosecutor General has also supported the impugned judgment by arguing that in this case the star witness P.W Moosa Khan, whose evidence is on record, who has not supported the prosecution case by deposing that respondent was not present at the time of occurrence. During the course of arguments, he has also drawn attention of this Court towards the evidence of other witnesses and submits that the evidence of other witnesses are also contradictory to each other, therefore, no reliance can be placed on the evidence of prosecution witnesses.
10. I have heard the appellant, learned counsel for the respondent No.1 and learned Additional Prosecutor General and have also gone through the evidence, so brought on record.
11. In this matter, in order to prove the allegations, the prosecution has examined in all six witnesses including SIP Rasheed Ahmed, who has investigated the matter.
12. I have gone through the evidence of all the witnesses with the able assistance of the appellant as well as learned Additional Prosecutor General and learned counsel for the respondent and come to the conclusion that the prosecution has failed to prove its case against the respondent for the reasons that P.W-3 Moosa Khan, whose evidence is on record has deposed that on 04.01.2016 he was present at his duty as Chowkidar in a bungalow near place of incident and he heard voice and thereafter he came out and saw that three persons wearing pent-shirt were beating Sajjad and also snatching his wallet and CNIC but during course of examination-in-chief he could not identify the accused person though he was present before the Court. Further in his cross-examination, he has also admitted that he had not seen present accused at the place of occurrence while P.W-4 namely Jameel Ahmed in his evidence has deposed that at the time of incident, he was passing by from the place of occurrence when incident took place and he saw the incident but he could not identify the accused before the Court. For the sake of evidence, it would be appropriate to reproduce the evidence of P.W Jameel Ahmed, available on record which reads as under:-
“Examination-in-Chief
“As I was passing from office of the KESC near Al-Noor Masjid, two persons were beating a person while one was holding pistol and saying that we are police officials and also broken the Rikshaw. Then I went to my home. Accused person present in Court though he could not identified the same.
Cross Examination
It is fact that my statement was recorded by the police official of Surjani Town P.S. It is correct that complainant is my near relative. It is correct that I have not seen the present accused Mushtaq Ahmed at place of occurrence.”
13. In view of the above evidence, it reflects that these two prosecution witnesses have not supported the case of the prosecution. Appellant admittedly is not the eye-witness of the incident. During the course of arguments, I have specifically asked the question from appellant that the evidence of above two prosecution witnesses, is not supporting his case. He did not reply satisfactorily; however, submitted that the police has spoiled his case.
14. I have also gone through the evidence of remaining witnesses. Their evidence is also not inspiring confidence besides this alleged incident took place on 01.04.2016 but the FIR was lodged by the complainant on 10.04.2016, after the delay of 09 days for which no satisfactory explanation has been furnished, therefore, on this ground, also false implication of respondent in this case with due deliberation and consultation could not be ruled out.
15. From the perusal of evidence recorded by the trial Court and the impugned judgment, it appears that judgment of the trial Court is based upon the sound reasons. Respondent/accused was acquitted by the trial Court mainly on the ground that evidence of prosecution witnesses on material particular of the case is contradictory and untrustworthy. Perusal of record further shows that the trial Court has rightly acquitted the accused through impugned judgment, which is neither perverse nor arbitrary.
16. So far 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, capricious or against the record. But in this case, 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 appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi versus Sobharo reported as 1993 SCMR 585, Hon’ble Supreme Court 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 is reproduced as under:_
“14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that 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.”
17. For what has been discussed above, I am of the considered view that impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon’ble Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this Criminal Acquittal Appeal No. 136 of 2018 is without merits and the same is dismissed.
JUDGE
Zulfiqar/PA*