Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S – 105 of 2019
Date of hearing : 29.11.2019.
Mr. Muhammad Daud Abbasi, 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 Javed Ahmed son of Muhammad
Azeem Chachar has impugned the judgment dated 24.05.2019. Respondents / accused
(1) Ghazi Dino alias Ghulam Abbas son
of Nabi Bux, (2) Abey alias Ghulam Mustafa son of Nabi Bux, (3) Mir Khan son
of Sohrab and (4) Ali Bux son of Khuda Bux were tried by learned
Judicial Magistrate-II, Pano Aqil in Criminal Case No.93/2016 for offences
under Sections 337-A(i), 337-F(i), 337-F(v), 337-L(2), 504 read with Section
34, PPC. On the conclusion of the trial, vide judgment dated 24.05.2019, 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:
“Brief facts of prosecution case as narrated in FIR
by complainant/injured Javed Ahmed are that, on account of previous enmity over
landed property accused were annoyed with him. On 10.11.2015 at about 6:30 pm
he was standing outside of his house he heard noise backside of his house and
he went there, where he found present accused having lathies in their hands
were standing, they after noticing complainant started abusing him, on that he
replied them be gentle but accused annoyed and caused him lathi injuries which
he received on his right hand wrist, left hand finger, left leg ankle joint,
and one injury on his abdomen. During incident he raised cries which attracted
to his relative Pw Irshad Ali and his mother Mst. Sadori who came there and
intercepted with the accused and given them names of Allah and Rasool to rescue
the complainant and in meantime accused caused lathies blow to his mother Mst.
Sadori which she received on her head, lower lip and on her right shoulder.
After such incident the complainant along with his injured mother was going to
P.S in the way accused Ali Bux meet with them to whom complainant narrated facts of incident, who also abused him.
Thereafter, at first instance complainant reported the matter as non-cog
and on 22.11.2015 he lodged FIR against accused.”
FIR was recorded vide Crime No.227/2015
registered at P.S
Pano Aqil, District Sukkur for offences
under Sections 337-A(i), 337-F(i), 337-F(vi), 504, PPC.
3. On the conclusion of the investigation,
challan was submitted against the accused under Sections 337-A(i), 337-F(i),
337-F(v), 504, PPC.
4. Trial
Court framed the charge against the accused at Ex.02. They did not plead guilty
and claimed to be tried.
5. At
the trial, prosecution examined five (05) prosecution witnesses. Thereafter, prosecution
side was closed.
6. Statements
of accused were recorded under Section 342, Cr. P.C at Ex.16 to 19, 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 24.05.2019, acquitted the above named accused.
8. Complainant being
dissatisfied with the acquittal of the accused has filed this appeal.
9. Learned
counsel for the appellant / complainant mainly contended that it was injury
case. Trial Court has not appreciated the evidence according to the settled
principle of law. It is argued that contradictions were minor in nature and
observations made by the trial Court are not based upon the available record.
Lastly, it is contended that judgment of the trial Court is perverse and
acquittal may be converted to the conviction.
10. Mr. Zulfiqar Ali
Jatoi, learned Additional Prosecutor General supported the judgment of the
trial Court and argued that there were several infirmities in the prosecution
case and rightly acquittal has been ordered by the trial Court.
11. I
have carefully perused the impugned judgment and relevant record. It appears
that trial Court, vide judgment dated 24.05.2019, acquitted the accused mainly for
the following reasons:
“15. The perusal of prosecution
evidence and contents of FIR it appears that the dispute of complainant and
accused is over matter property therefore the parties are in criminal terms to
each other. The complainant; in
contents of FIR and in his examination-in-chief, stated that,
his mother Mst. Sadori received only two injuries on her person; one on her
head and other at her lower lip, but MLC does not discloses about such
injuries, in contradiction Medical Officer Dr. Sanam Khalidi in her deposition
disclosed all different injuries
allegedly received by injured Mst. Sadori as one bruise with swelling over
right side of abdomen, swelling over forehead, abrasion over right
shoulder regions and small swelling over right leg of injured Sadori. Memo of
injuries is totally contradicting to the medical certificate, all injuries
mentioned in memo of injuries and MLC are different from each other. Medical evidence is not supportive to the memo of
injuries and police referral letter. Further the perusal of record it
shows that, injured Sadori has expired away by natural cause during pendency of matter therefore, her evidence
could not come on record to support the complainant’s version. Further perusal of record it
transpires that police referral letter was issued to injured without noting injuries of injured. It was issued
12 days before noting injuries of injured and preparation of memo of injuries.
The perusal of contents of FIR it shows that, the complainant has stated that, during incident he received injury No.01 on right arm wrist but, in
contradiction he in his
examination-in-chief has stated that, he received such injury on left hand wrist. The injury No.02,
03 and 05 of injured/complainant are neither disclosed by complainant
in contents of FIR nor same are disclosed in memo of injuries but surprisingly these injuries
were disclosed by medical officer in MLC issued to injured complainant and such injuries were declared as Ghyr-Jaifah Damyah. Even the injured and mashirs of injuries were unaware about the injuries disclosed by medical officer. Here I am unable to
understand that how medical
officer has issued MLC to the injured
for the injuries which were
neither disclosed by injured himself nor same received by him. At first instance matter was reported
as Non-Cog; later-on FIR of the same incident was registered with the delay of about 12
days, even three days after issuance of MLCs
and such delay has been explained by prosecution.
Admittedly, delay in lodgment
of FIR is conspicuous there being no plausible explanation, therefore, accused
cannot be left at the mercy of complainant to rope innocent souls so as to
entangle/victimize them to old
animosity and or to settle old scores, using the FIR as a tool for that
purpose, and that, too, without any explanation in this regard reliance is
placed on Qadir Bux & 2-others vs. The state (2012 MLD 365), wherein it has been held; “Unexplained delay of two and half hours in
lodging of FIR, may lead to interference of cooking of concocted story by
deliberations”. Medical Officer Dr. Sanam admitted that, she was not
experienced enough in the field. No X-ray film or Radiologist report is produced even Dr. Sanam is not
Radiologist. Further as per prosecution version incident took
place at about 06:30 am and injured arrived at hospital at about 9:00 am with
the delay of about 2 ˝
hours but medical certificates
disclosed duration of injuries as fresh caused within one hour. Perusal
of record further shows that, no
specific role or specific injury is assigned to any accused as to which accused
cause which P.W at his what part of body as such, allegation against the accused persons are general in nature.
Moreover, all P.Ws close
relative and no independent person has been cited as witness of incident or
mashir. The mashir has deposed that, I.O visited the place of incident on
motorcycle; in contradiction
I.O himself deposed that he visited
place of incident on a private Car. The perusal of record further shows that
after usual investigation mater was recommended for disposal under “C” cancel class, the accused being innocent.
Evidence of investigation officer ASI Abdul Rehman Bhutto who recommended the case
for disposal under
C-cancel class, was very
important but the prosecution with malafide intention has given up such
material witness by simply examining initial investigation officer, in order to suppress the evidence collected in favor of accused. The duty of
the prosecutor is to call witnesses first whose testimony will help the accused to establish his innocence. The prosecutor, in a criminal case, is not at
liberty, like a plaintiff in a civil case, to select out a part of an entire transaction
which makes (the case) against the defendant, and then, to put the defendant to
the proof of the other part. The prosecuting officer represents the
public interest, which can never be promoted by the conviction of the innocent. All the witnesses present
at the transaction, should be called by the prosecution, before the accused is
put to his defense. The
record shows that the
prosecution has totally failed to examine the material witness IO ASI
Abdul Rehman Bhutto without any reasonable cause therefore, here in the
present case in hand I am unable
to understand that how it can be presumed that the material witness would
have been support the prosecution
version without recording his evidence it holds the prosecution story is not free from the
reasonable doubt. Further it is well settled principle of law that when the prosecution has
given up the material
witness without any
reasonable cause it would be presumed that the said witness would have not to be supported
the prosecution case if same would
have been examined. Further it is also settled principle of the law that
presumption should be taken in favor of accused. I have relied upon
reported case law MUHAMMMAD RAFIQUE & ORS V/S THE STATE & ORS reported as 2010 SCMR 385
concerned page is 400 honorable apex court observed that “it is also well
settled principle of law that
if any party with holds the best piece of evidence than it can fairly be presumed that party had some sinister
motive behind it. The presumption under article 129 (g) of Qanoon -e-
Shahadat Order 1984 can fairly be drawn that if said PW would have been
examined, he would not be unfavorable to prosecution.
16. Moreover
the complainant and injured have deposed against the accused but their
statement cannot be taken as gospel truth in the circumstances when they
are in criminal terms with the accused over the property issues. All the
ocular PWs are closely related to the complainant, independent corroboration to
ocular account is lacking in this case. Evidence of eye witnesses carried major
contradictions and ocular evidence is not corroborating to medical evidence
which made the case of prosecution doubtful. Radiologist report or opinion of
expert has not been produced by prosecution. Further the stamp of injury on the person
witnesses would not make testimony of such witnesses as gospel truth, the
testimony of injured witness would not be considered in isolation with other
material evidences on record but such testimony required independent
corroboration from the circumstantial evidences especially when enmity exist between the parties.
Further relied upon case law SBLR 2016 Sindh-447 Hyderabad, it was observed
by the Honorable High Court that
the ocular account can be used for recording acquittal or conviction against
the accused persons who were charged for the commission of same offence, but
there should be the chain among the ocular evidence. The Circumstantial evidence is not in line
with ocular testimony.”
12. In
the present case, complainant in the evidence, has stated that his mother Mst.
Sadori received two injuries, but Medico Legal Certificate does not disclose
such injuries. There was also inordinate delay in lodging of the FIR, for which
no plausible explanation has been furnished. Material witnesses have not been
examined. All the PWs were closely related and no independent person was
examined. There were major contradictions in the evidence of the eyewitness.
Ocular evidence was not corroborated by the medical evidence. Learned counsel
for the appellant / complainant could not satisfy the Court about the
infirmities / contradictions highlighted by the trial Court in the judgment.
Judgment of the trial Court is neither perverse nor arbitrary. Hon’ble Supreme
Court in the recent judgment in the case of Zulfiqar
Ali v. Imtiaz and others (2019 SCMR 1315), has observed
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. For the above
reasons, this Acquittal Appeal is without merit and the same is dismissed.
J U D G
E
Abdul Basit