Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 132 of 2019

Date of hearing : 25.10.2019.

Mr. Gul Feroz Kalwar, Advocate for appellant / complainant.

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Nisar Ahmed son of Muhammad Suleman Dayo has impugned the judgment dated 15.07.2019. Respondents / accused (1) Muhammad Saleh and (2) Mocharo were tried by learned Civil Judge & Judicial Magistrate-I, Pano Akil in Criminal Case No.129/2018 for offences under Sections 392, 337-H(2), 34, PPC. On the conclusion of the trial, vide judgment dated 15.07.2019, above named respondents / accused were acquitted by the trial Court.

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

“ Precisely, the facts of the prosecution case are that on 02-09-2018 complainant Nisar Ahmed Dayo alongwith Sagheer Ahmed and Nisar Ahmed Mirani went to the poultry farm of Habibullah by Mazda Bearing No-KS1794 for picking hens when they reached at link road Mullali where two accused persons intercept with them at about 01:30 P.M meanwhile accused persons made areal firing, resulting complainant party stop their vehicle and identified accused persons namely Muhammad Saleh S/O Muhammad Paryal Mirbahar and Mocharo S/O Shahaban Bullo on the head lights of Vehicle thereafter accused persons snatched mobile phone of Hawai company with Sim card No. 03002806862, 03153618348 and cash amount of Rs. 1200 from complainant Nisar Ahmed Dayo, robed china mobile of XI with Sim card No. 03003266586 and 03121261974 and cash amount of Rs.1500/- from witness Nisar Ahmed Mirani and robed one mobile E-4 with Sim card 03083665941 and Rs.300 Cash amount from Sagheer Indhar, Hence Complainant lodged this FIR. ”

FIR was recorded on 08.09.2018 at P.S Dadloi, District Sukkur vide Crime No.16/2018 for offences under Sections 392, 337-H(2), 34, PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under the above referred sections.

4. Trial Court framed the charge against the accused at Ex.02. They pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined six (06) prosecution witnesses and then prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr. P.C at Ex.12 and 13, in which accused claimed false implication in this case and denied the prosecution allegation. 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 15.07.2019, acquitted the accused mainly for the following reasons:

“ Prosecution to prove its case examined six witnesses in all wherein they have deposed contradictory to one another on major points which have created serious doubts regarding the involvement of accused in aforementioned offences and benefit of it is given to the accused not as a matter of grace but as a matter of right and said major contradictions with legal flaws are given below:

Pw-1 Complainant deposed that after the alleged incident of robbery they moved towards the Mocharo Bullo and told him about the said alleged story on which he replied that he would get them return their robed articles within two or three days whereas the PW-2 Nisar Ahmed has contradicted with the version of complainant by deposing that after the said incident at next morning they went towards Sheban Bullo and told him about the said alleged story on which he replied that he would get them return their robed articles within two or three days. Complainant as alleged that they were stopped by the accused persons on making of areal firing but it is very surprising to know that neither they have disclosed that how many fires each accused made over their nor secured the empties from the place of incident even the investigation officer failed to collect such evidence from the place of incident meaning thereby section 337-H(2) is not made.

Furthermore the PW-2 was subjected to cross examine by the learned defense counsel wherein he admitted that he was possessing X-1 China mobile which is also mentioned in the FIR but is very surprising to mention here that police has recovered G-V bravo mobile during the course of investigation meaning thereby the recovered case property is disputed one. I have also perused the contents of FIR produce at EX.05/A wherein neither complainant party had mentioned EMI Number of robed mobiles in FIR nor produced their mobile box before the investigation officer and it is settled law that whoever desire to get judgment according to his own desire must prove such facts as law desires.

It is very pertinent to mention here that Statement of Investigation officer is also self-contradictory as he has deposed that he had recovered the Hawai mobile from the cattle farm of accused mocharo bullo and chine touch mobile from the shop of Bisham on the pointation of accused Muhammad Saleh. And he was subjected to cross examination by learned defence counsel for accused wherein he has turned off from his own statement by deposing that he had recovered mobile from cattle farm is china mobile and present recovered mobile in case property is G-V china mobile.

Another glaring contradiction which has come on the record is that PW-05 investigation officer deposed that he along with complainant and mashirs went to visit the place of incident, whereas the PW-06 Mashir of the case Shamshad Ali has contradicted the version of I.O by deposing that he had joined the Investigation officer by the way.

The flaw which fetal the case of prosecution is that it was the prime duty of Investigation officer that after recovery of case property he has to seal it at the spot. But Investigation officer remain fails to seal the case property. So the foistation of case property over the accused to involve them in false case cannot be ruled out.

The another flaw which fetal the case of prosecution is that it was the duty of Investigation officer to associate independent private witness as mashir of this case but he fails to do so and as it admitted fact that by the PW-5 himself that recovery was effected from the mobile shop of besham and cattle farm of accused mocharo bullo and instead of that investigation officer fails to associate any private witness and nor he associated the shopkeeper besham as witness in this case nor his Statement under section 161 Cr.P.C was recorded by the Investigation officer. Therefore it was prime duty of Investigation officer to collect the information regarding the dispute land from the independent persons and record their statements. But Investigation officer fails to do so meaning thereby Investigation officer fails to conduct fair and impartial investigation.

Another flaw fetal to the case of prosecution is that the Alleged incident was occurred on 02-09-2018 but complainant had reported the said incident on 08-09-2018 after the inordinate delay of 06 days though the distance between the Place of incident and Police Station is about 5/6 K.M. Therefore false implication of involving accused persons in false case cannot be ruled out. In this regard I have received guide line from the reported case law as PLD 2019 SC 64.

The above contradictions are sufficient to create the doubt in whole prosecution story in the circumstances when eye witnesses are not uniform in their respective statements and benefit of it always go in favor of accused not as a matter of grace but as matter of right. Respectfully reliance is placed upon an authority reported Muhammad Zaman v. The State and others (2014 SCMR 749).

After such contradictory statements of prosecution witnesses story as narrated by PWs cannot be believed to be trustworthy. Therefore, I am of the considered opinion that prosecution has failed to prove the charge against accused beyond any shadow of reasonable doubt. Hence, point No. 01 is answered as negative. ”

8. Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

9. Learned counsel for the appellant / complainant submits that trial Court has failed to appreciate the evidence according to the settled principle of law. He further submits that contradictions in the evidence of the prosecution witnesses were minor in nature, but the trial Court on the basis of said contradictions, has recorded the acquittal.

10. Mr. Shafi Muhammad Mahar, learned Deputy Prosecutor General, present in the Court in connection with other matters, waives notice of this appeal and submits that prosecution case was doubtful; that there was inordinate delay of six (06) days in lodging of the FIR; that description of the snatched mobile, as mentioned in the FIR, is different from the evidence, in which different description has been given.

11. In my considered view, this Acquittal Appeal has not merit for the reasons that in the FIR, description of the mobile has been mentioned as X-1 China Mobile, whereas, the mobile recovered from the accused was G-V Bravo Mobile. Counsel appearing for the appellant / complainant could not satisfy the Court about these contradictions, which were made the basis by the trial Court for recording the acquittal. Judgment of the trial Court appears to be neither perverse nor arbitrary. In the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), Hon'ble Supreme Court has laid down the following principle:

“ 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. ”

12. This Criminal Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit