IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.D-38 of 2011

Present:

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah,

Appellant/Complainant : Ghulam Sarwar s/o Muhammad Azeem

Through Mr.Ahsan Ahmed Qureshi, Advocate

Respondents : 1). Abdul Hakeem s/o Abdul Razzaq

2). Sanaullah s/o Abdul Latif

3). Abdul Fatah s/o Abdul Razzaq

Through Messers. Safdar Ali Ghouri and

Asif Hussain Chandio, Advocate(s)

: The State Mr.Khadim Hussain Kooharo, A.P.G

Date of hearing : 16.10.2018

Date of decision : 16.10.2018

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 10.10.2011, passed by learned 7^th Additional Sessions Judge, Larkana, in Sessions Case No.427/2010, outcome of FIR Crime No.70/2010, u/s. 302, 504, 148,149 PPC of P.S Waleed, whereby the private respondents were acquitted of the offence for which they were charged.

2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that; the private respondents with rest of the culprits, being armed with pistols, in furtherance of their common intention, committed Qalt-e-Amd of Sajjad Ahmed, by causing him fire shot injuries, for that they were booked and challaned in the present case.

3. At trial, the private respondents denied the charge and the prosecution to prove it, examined PW-01 Dr.Abdul Qayoom, produced through him postmortem report on the dead body of the deceased, PW-02 appellant/complainant Ghulam Sarwar, produced through him FIR of the present case, PW-03 Javed Ahmed, PW-04 Ayaz Ali, PW-05 Mashir Muhammad Azeem, produced through him memo of place of incident and recovery of blood stained earth and empties, memo of examination of dead body of the deceased, inquest report, memo of arrest and recovery of weapon, PW-06 ASI Akhtiar Ali, PW-07 Inspector Muhammad Ibrahim, PW-08 Tapedar Abdul Haq, produced through him sketch of place of incident, PW-09 ASI Abdul Hayee, produced through him further statement of the complainant, report of chemical examiner and report of ballistic expert, PW-10 PC Ali Nawaz, produced through him receipt whereby he delivered the dead body of the deceased to his relative and then closed the side.

4. The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading their false implication. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.

6. It is contended by learned counsel of the appellant/complainant that the learned trial Court has acquitted the private respondents without lawful justification on the basis of improper appraisal of the evidence. By contending so, he sought for adequate conviction for the private respondents.

7. Learned A.P.G and learned counsels for the private respondent have supported the impugned judgment.

8. We have considered the above arguments and perused the record.

9. The unnatural death of the deceased Sajjad Ahmed is not disputed. In FIR, it has been stated by the appellant/complainant that on 08.05.2010, when he, deceased Sajjad Ahmed, his witnesses Ayaz Ali and Javed Ahmed were going to take milk from house of Faqir Muhammad Langah, for their hotel, when reached adjacent to house of accused Abdul Hakeem, there under the light of bulb, they saw Abdul Hakeem, Abdul Fattah and three unknown culprits, armed with pistols, they after keeping him and his witnesses under fear of death fired and killed the deceased only for the reason that he had exchanged harsh words with them. The specific role of causing fire shot injuries to deceased Sajjad Ahmed in FIR is attributed to accused Abdul Hakeem and Abdul Fattah. During course of investigation, as per SIO/ASI Abdul Hayee, appellant/complainant made further statement on 23.05.2010, whereby he disclosed the names of two unknown culprits to be accused Sanaullah and Wali Muhammad. The evidence of appellant/complainant is silent with regard to the fact that he made any further statement before the police during course of investigation. If for the sake of arguments, it is believed that the further statement was actually made by the appellant/complainant during course of investigation before the police even then the same could not be treated as part of FIR. The involvement of accused Sanaullah on the basis of further statement which is recorded with delay of 15 days even to FIR obviously was not free from doubt. Accused Abdul Fattah during course of investigation was found to be innocent and was let-off by the police, such conclusion on the part police has made the version of the complainant even at the time of investigation to be doubtful. PWs Javed Ahmed and Ayaz Ali during course of their cross examination at trial were fair enough to admit that their 161 Cr.PC statements were recorded by the police on 23.05.2010. It was on 15^th day of the incident. No plausible explanation to such delay is offered by the prosecution, which has reduced the evidence of PWs Ayaz Ahmed and Javed Ali to nil.

10. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.PC. Reduces its value to nil unless delay is plausibly explained.”

11. In above circumstances, on ocular premises, there remains the evidence of appellant/complainant alone. As per appellant/complainant, he identified the culprits under the light of bulb. There is no disclosure of bulb in memo of place of incident. If for the sake of arguments, it is believed that the appellant/ complainant actually identified the private respondents under the light of bulb even then it appears to be a weak piece of evidence. As per appellant/complainant, he took the deceased Sajjad Ahmed to hospital but he died on his way to hospital. As per medical officer Dr.Abdul Qayoom, the death of the deceased Sajjad Ahmed was instantaneous. If the death of the deceased Sajjad Ahmed was instantaneous, then under what circumstances, the appellant/ complainant took the deceased to hospital in injured condition. In these circumstances, the evidence of the appellant/ complainant is not transpiring confidence. No doubt there is recovery of crime weapon, but those as per report of ballistic expert were sent to him on 11.06.2010, with delay of about more than one month to the incident with no plausible explanation. In that situation, it would be hard to reverse the judgment of acquittal. Under the circumstances, discussed above, the learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt.

12. In case of Faheem Ahmed Farooq vs.The State (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

13. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because 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, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

14. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may justify making interference with it by this Court.

15. Above are the reasons of our short order dated 16.10.2018, whereby the instant criminal acquittal appeal as dismissed.

J U D G E