Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 52 of 2019

 

 

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

 

 

Date of hearing        :           24.10.2019.

 

 

Mr. Nusrat Hussain Memon, Advocate for appellant / complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Mst. Zarina wife of Wali Muhammad Mangi has impugned the judgment dated 03.04.2019 passed by learned Judge, Anti-Terrorism Court, Naushahro Feroze in Special Case No.69/2018 for offences under Sections 386, 114, 147, 148, 149, PPC read with Section 7, ATA, 1997. On the conclusion of the trial, vide judgment dated 03.04.2019, accused (1) Bashir Ahmed alias Kato son of Bahadur Gopang, (2) Zaheer Ahmed son of Bashir Ahmed Gopang, (3) Jamshed alias Jamsho son of Anwar Ali Gopang, (4) Amjad Ali son of Anwar Ali Gopang, (5) Hakim son of Anwar Ali Gopang, (6) Aijaz Ali son of Anwar Ali Gopang and (7) Shoukat Ali son of Ali Nawaz Gopang have been acquitted.

2.         Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“ Brief facts of the prosecution case are that complainant Mst. Zarina wife of Wali Muhammad Mangi lodged FIR at PS Kamal Dero on 11.11.2018 at 1040 hours, stating therein that on 15.10.2018 at about 5.30 p.m she alongwith her sons Abdul Qayoom, Aamir and other inmates were available in the house. Accused Bashir Ahmed alias Katoo son of Bahadur duly armed with Pistol, Zaheer Ahmed son of Bashir Ahmed alias Katoo armed with Pistol, Jamshed alias Jamsho son of Anwar Ali armed with G-3 Rifle, Amjad, Hakim Ali, Aijaz all sons of Anwar Ali, Shoukat son of Ali Nawaz all armed with lathies entered in her house. They asked her that she is constructing the house about 15 days back they had demanded Bhatta, but still she had not paid the same. She refused to pay bhatta to them, on which accused persons caused lathi and G-3 butt blows to her sons Abdul Qayoom and Aamir. Due to injuries her sons fell down on the ground, she raised cries and given the name of Holy Quran to leave her sons, on which accused persons disclosed that if she did not pay bhatta, they will not leave them. Thereafter accused persons went away. Then complainant brought her injured sons at police station, after taking police letters got treatment for them. They she filed application before 1st ADJ Naushahro Feroze and obtained order for registration of FIR she appeared at police station and lodged report. ”

            FIR was recorded on 11.11.2018 at P.S Kamal Dero, District Naushahro Feroze vide Crime No.12/2018 for offences under Sections 337-F(iv), 337-A(i), 386 PPC read with Section 7, ATA, 1997.

3.         After usual investigation, challan was submitted against the respondents / accused No.1 to 7 under Sections 386, 337-F(iv), 337-A(i), 147, 149, 504, PPC read with Section 7, ATA, 1997.

4.         Trial Court framed the charge against the accused at Ex.03. Accused pleaded not guilty and claimed to be tried.

5.         At the trial, prosecution examined ten (10) prosecution witnesses and prosecution side was closed.

6.         Statements of accused were recorded under Section 342, Cr.P.C at Ex.22 to 28 in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in their defence and declined to give statement on oath in disproof of prosecution allegations.

7.         Learned trial Court after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 03.04.2019 acquitted the respondents / accused for the following reasons:

“20.     Heard learned APG for the State assisted by learned counsel for the complainant, learned counsel for accused and perused the evidence brought on record. PW-Complainant Mst. Zarina is household lady, she has stated that they have one hair cutting salon and her two sons used to work there and each son earn Rs.50,000/60,000/- per month. She has stated that 15 days prior to incident accused persons demanded bhatta from her to allow construction of the house. On 15.11.2018 when she and her sons Aamir Ali and Abdul Qayoom were available at their newly constructed house, two accused persons with pistols, Jamshed with Rifle and other accused persons armed with lathies came there, demanded bhatta and on her refusal accused Jamshed gave rifle butt blow on the head of Aamir Ali and all other accused gave lathi blows to Abdul Qayoom, she brought them to police station, got letter and went to hospital and got treated her sons. PW- Aamir Ali and Abdul Qayoom have supported the version of complainant to the extent of incident dated: 15.11.2018. She has admitted that she has not disclosed date, time, place and amount of bhatta and names of witnesses before whom accused persons demanded bhatta from her. Whereas PW-Aamir Ali stated that he does not know about date when accused persons demanded bhatta from her mother. He further deposed that on the same date her mother informed him about the demand of bhatta Rs.300,000/- by accused persons. At the same time he admitted that he has not disclosed the amount of bhatta in his statement recorded u/s 161 Cr.P.C. PW-Abdul Qayoom has stated that 15 days prior to this incident, accused persons demanded bhatta from her mother at night time, when he, his brother and other family members were also present. He admitted that in his 161 Cr.P.C statement he has stated that 2/3 days prior to this incident accused persons demanded bhatta from his mother. As regards the financial position of complainant party it is pertinent to note that family of complainant consisted upon her husband, four adult and two minor sons and four daughters, in which PW-Aamir Ali is married having one daughter. She has stated that her two sons earn Rs.50,000/- 60,000/- each per month, but PW-Aamir Ali stated that they earn Rs.800/Rs.900/- per day and PW-Abdul Qayoom stated that they earn Rs.500/Rs.550/- per day, if highest amount of Rs.900/- is considered to be earning per day, amount of earning will be Rs.27,000/- per month and from this amount a family consisting upon 12/14 members hardly meet the expenses over their livelihood for a month. As per FIR complainant has shown the place of incident house where her two sons Aamir Ali, Abdul Qayoom and other inmates of the house were present, when this incident took place, but during recording her statement before this court, she has stated that incident took place at newly constructed house. In FIR there is no mention of mason and laborers at the time of incident, but she has deposed that they were present at the time of incident, but surprisingly they were not shown as witnesses in FIR. Her version was belied by her son injured PW-Aamir Ali, who has stated that when this incident took place mason and laborers already left the scene. PW-Injured Abdul Qayoom has disclosed that his brother Muhammad Saleem and Meeral has brought them from place of incident to Police Station, whereas PWs. Muhammad Saleem and Meeral deposed that they received information about fighting in town and they directly came at police station where injured were also present. Not only this, there are several material contradictions and improvements in evidence of witnesses. Major improvements made by the complainant and PWs are in respect of injury caused by accused Jamshed to injured Aamir Ali. As per FIR accused Jamshed and other accused having lathies, gave butt and lathi blows to Aamir Ali and Abdul Qayoom, general allegations have been leveled against all the accused and no specific injury attributed to them, but in deposition they have attributed injury of PW-Aamir Ali to accused Jamshed. It is also pertinent to mention here that six accused persons allegedly caused hard and blunt injuries to two brothers, but each of them sustained only one injury, therefore, it is very much difficult to determine as to who has caused injury to PWs. It is prosecution case that injured persons after receiving injuries fall down on the earth, but surprisingly no bloodstained earth was secured from place of incident. PW-I.O Inspector Raham Hussain Waswano has deposed that he has not collected any evidence about demand of bhatta by accused persons and there is dispute between the parties over the street. It is well settled principle of law that single dent or circumstance which creates doubt must be resolved in favour of accused as a matter of right and not as a matter of grace. In view of above discussion I have come to the conclusion that prosecution has failed to establish its case against accused beyond shadow of reasonable doubt. I, therefore, reply this point as doubtful. ”

8.         Appellant / complainant, being dissatisfied with the acquittal of the accused, has filed this appeal.

9.         Learned advocate for the appellant / complainant argued that trial Court has recorded acquittal in favour of the respondents / accused without appreciating the evidence in its true prospective. It is further contended that judgment of the trial Court is perverse and the same is liable to be converted to the conviction.

10.       Mr. Zulfiqar Ali Jatoi, learned Additional P.G argued that judgment of the trial Court is structured on sound reasons and acquittal order is neither perverse not arbitrary. He has supported the impugned judgment of the trial Court and prayed for dismissal of the Acquittal Appeal.

11.       It is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“ 16.    We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

            From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals. ”

12.       In the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), Hon'ble Supreme Court has held as under:

“ 2.      According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed. ”

13.       In the present case, financial position of the complainant party was not sound enough. Allegation of bhatta has not been proved by credible evidence. There was also dispute between the parties over the street. Prosecution story appears to be unnatural and unbelievable. There were several circumstances in the case, which created doubt in the case of prosecution. Trial Court has rightly disbelieved the prosecution evidence. Scope of acquittal appeal is considerably narrow and presumption of double innocence is attached to the order of acquittal.

14.       This Criminal Acquittal Appeal is without merit and the same is dismissed. These are the reasons of our short order announced in the earlier part of the day.

 

J U D G E

 

J U D G E

Abdul Basit