Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 137 of 2018

Date of hearing : 09.12.2019.

Mr. Illahi Bux Jamali, Advocate for appellant / complainant.

Mr. Faiz Muhammad Brohi, Advocate for respondents No.1 & 5.

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondents (1) Muhammad Jurial son of Umer, (2) Umer son of Jurial, (3) Toohan son of Jurial, (4) Aziz son of Jurial, (5) Muhammad Ramzan son of Allah Rato, (6) Arbelo son of Muhammad, (7) Mubeen son of Muhammad Ramzan, (8) Manzoor son of Rajib, (9) Papan son of Rajib, (10) Shahan son of Fazul, (11) Guddu son of Fazul, (12) Gulsher son of Lal Bux and (13) Naveed son of Jurial, all by caste Ghanghro were tried by learned Sessions Judge, Naushahro Feroze in Sessions Case No.156 of 2018. After regular trial, vide judgment dated 02.08.2018, case of respondent No.13, who was proclaimed offender, was kept on dormant file till his arrest, while respondents No.1 to 12 were acquitted by the trial Court for the following reasons:

“ Perusal of evidence brought on record by complainant Bodlo and his witnesses Zahid Hussain and Muhammad Achar being they eye witnesses of an alleged incident, reveals that there are major contradictions in their evidence and their evidence does not inspire confidence and same is not believable or trustworthy because of complainant has deposed that he came to police station at 2:00 p.m and he along with Zahid and Acher had gone to police station by a Rickshaw. He has deposed that about 200 villagers gathered at vardat. He can not tell exact time of taking wheat knots by accused persons. He has admitted that accused persons had lodged such FIR against them. He has admitted that Civil Suits between him and accused persons are pending adjudication in the Court. He has admitted that an application is pending before the Deputy Commissioner Naushahro Feroze on the said land. He has admitted that robbed wheat knots were not recovered by police. P.W Zahid Hussain has also admitted that civil suit is pending between them and accused persons in the Court and accused persons had lodged FIR against them. P.W Muhammad Achar has also admitted that a civil nature dispute going on between the parties and no robbed knots were recovered by an investigation officer during an alleged incident. It means enmity between parties is going on. Witnesses are close relatives of complainant and they are interested in prosecution. Thus a case of prosecution is doubtful. It is settled law that in case of even a slightest doubt, its benefit must go to the accused not as matter of grace but of right. In such situation, I would like to take guidance from the case reported as Naimatullah Khan versus The State through Anti-Narcotics Force Sindh, reported in 2012 YLR 215. I do hereby re-produce placitum “c” of same as under:-

© Criminal Trial---Benefit of doubt--for giving benefit of doubt to an accused, there need not be a number of circumstantial evidence to prove the innocence of accused; even single evidence appearing to the prudent mind creating doubt was more than enough to equal an accused.

In view of above prosecution evidence appears to be unreliable, untrustworthy and inspiring no confidence. Prosecution story appears to be concocted and P.Ws are interested witnesses and story narrated by complainant does not appeal to senses that all accused being members of one and same family would commit an alleged offence when enmity is admitted by complainant and P.W Zahid Hussain as well as P.W Muhammad Achar between parties.

From perusal of evidence available on record as discussed above it is crystal clear that complainant has failed to prove its case against accused persons beyond any shadow of doubt, thus point No.1 is answered in “negative”.”

2. Mr. Illahi Bux Jamali, learned advocate for 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.

3. Mr. Zulfiqar Ali Jatoi, learned Additional P.G assisted by Mr. Faiz Muhammad Brohi, Advocate for respondents No.1 & 5 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.

4. After careful hearing the learned counsel for the parties, I have also perused the material available on the record.

5. In the present case, PWs were closely related to the appellant / complainant and there was dispute between the parties over the land. Such litigation was pending. According to the case of prosecution, the persons of the locality gathered, but neither they were examined by the police nor produced at trial. There are material contradictions in the evidence of the prosecution witnesses. 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. ”

6. For the above reasons, this Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit