Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 157 of 2019

 

 

Date of hearing        :           06.12.2019.

 

 

Mr. Nusrat Hussain J. 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. Amina has impugned the judgment dated 22.08.2019. Respondents / accused Abdul Razaque son of Abdul Malik Bhutto and Mohsin Hassan son of Abdul Razaque Bhutto were tried by learned Judicial Magistrate-II, (MCTC), Ghotki in Criminal Case No.214/2019 for offences under Sections 337-F(v), 506/2, 34, PPC. On the conclusion of the trial, vide judgment dated 22.08.2019, 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, facts of the case as contained in FIR are that, per complainant there was an annoyance in between her husband and accused Abdul Razaque over money transaction and the accused party used to issue threats of dire-consequences to them. Complainant further alleges that, on 04.08.2018 she along with her husband Abdul Razaque and son Abdul Wahab was going for her medical checkup, in meantime at Mir Pur Minor Bridge they were stopped by accused Abdul Razaque, Mohsin Hassan who had iron rods in their respective hands and two unidentified accused persons who were carrying lathies in their hands, the accused persons arrived in a white color car. Per complainant accused Abdul Razak and Mohsin Hassan inflicted injuries on her person, whereas unidentified accused inflicted lathi injuries on the person of her husband and went away while issuing threats of murder. Hence this FIR was registered.

            FIR was recorded on 27.09.2018 at P.S Mirpur Mathelo, District Ghotki vide Crime No.139/2018 for offences under Sections 337-F(v), 324, 506/2, 34, PPC.

3.         On the conclusion of the investigation, challan was submitted against the accused under Sections 337-F(v), 506/2, 34, PPC.

4.         Trial Court framed the charge against the accused. They did not plead guilty and claimed to be tried.

5.         At the trial, prosecution examined six (06) prosecution witnesses. Thereafter, 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 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 22.08.2019, 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 argued 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 P.G argued that there were several infirmities in the prosecution case and judgment of the trial Court is structured on sound reasons and acquittal order is neither perverse not arbitrary. He supported the impugned judgment of the trial Court and prayed for dismissal of the Acquittal Appeal.

11.       I have carefully perused the impugned judgment and relevant record. It appears that trial Court, vide judgment dated 22.08.2019, acquitted the accused mainly for the following reasons:

          A glance over back history of the matter in hand would suggests that, admittedly alleged incident took place on 04.08.2018 and the FIR was registered on 27.09.2018 with a delay of one month and twenty two days, which too without proper explanation. It is settled hindsight of law that, in absence of plausible explanation; the delay in lodging of FIR would be fatal to prosecution case. In case of Noor Muhammad V. the State reported in (2010 SCMR 97) Honorable Supreme Court of Pakistan has observed that, “if there is any delay in lodging the FIR or commencement of investigation, it gave rise to doubt; which could not be extended to anyone else except accused”.

A conscious eye over the deposition of eye witnesses of scene makes the happening of incident more dubious; the complainant has deposed that, existence of an enmity in between her husband (PW Abdul Razak) and accused persons, accused Abdul Razak and Mohsin Hassan who admittedly belong to Ghotki town at the right time reached at place of vardat, stopped complainant party and inflicted injuries on her person, here it is surprising to note that accused Ahdul Razak and Mohsin Hassan caused injuries on the person of complainant/lady and left PW Abdul Razak and Abdul Wahab to depose against them which too in existence of an annoyance with Abdul Razak; complainant further claims unidentified accused inflicted Jathi injuries on the person of her husband Abdul Razak but neither any memo of injuries of PW Abdul Razak is on record nor he has ever visited hospital, even at his evidence he admitted that he deliberately did not visit the doctor; which suggests a malafide on the part of complainant party and surfaces the story to be unnatural, which does not appeal to a prudent mind. Before moving further, it is also crucial to mention here that, MLC of injured/complainant Mst. Amina was challenged and learned Medical Board vide order dated 27.05.2019 opined that, alleged fracture is due to fall on ground accidently. Thus; MLC of injured/complainant Mst. Amina lost its validity.

Be that as it may, but when said injured/ complainant Mst. Amina stepped into witness she deposed that, just after the incident she along with her husband went at PS, obtained letter for her medical treatment and moved to hospital and she claims she remained admitted for three days at Mirpur and then was referred to Sukkur; whereas WMO denied the same and has deposed lady injured was referred on same day; on other hand, the letter issued for her medical treatment shows, she went at hospital on 06.08.2018 after two days of alleged incident, she herself belied with her contents. The complainant has stated in her FIR that alleged incident took place at 05:00 P.M and when she stepped in witness box she deposed that, at 05:00 P.M she reached at PS. No particulars of alleged bike on which the complainant party was riding or of the car on which accused arrived have been given; even PW Abdul Wahab (son of complainant) has not been examined; he claims that he was with complainant and it is strange to note her mother was hit by accused persons in his presence and he (PW) did not react, it’s also seems an un-natural story. If this is position of prime witnesses of the prosecution, then how this court rely on testimony of such witnesses and award punishment to accused named in FIR; when the own narration of injured witness is negated by the medical evidence regarding injury sustained by her. Reliance is placed on case titled Muhammad Irshad & Others V. The State (1999 SCMR 1030).

            One step ahead, a careful perusal of deposition of medical officer coupled with provisional medical certificate of injured lady Mst. Amina shows that, per complainant incident took place on 04.08.2018 and as per medical record complainant/injured visited hospital on 07.08.2018 on 3rd day of incident the medical officer opines the duration of injuries in provisional MLC as four days; one day prior to date of incident, it also stamps the incident as doubtful. It is also strange to note that, there is gape of about 52 days in memo of injuries and memo of place of vardat but same mashirs have acted in both memos, their act surfaced them to be interested witnesses.

            Another jolt in prosecution story is that, investigation officer did not produce important roznamcha entries at his evidence which he kept during course of investigation, it also seems violation of rule 22.48 of Police Rules 1934, and such cursory is diluting the prosecution case too. “Reliance is placed on case of Abdul Sattar V. The State” (2002 P.Cr.L.J 51). 

            It is an axiomatic principle of criminal law that, not many circumstances creating doubt in prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance in this regard is placed on the case of Muhammad Akram V. The State 2009 SCMR 320, wherein Hon’ble Supreme Court of Pakistan has held that, For giving benefit of doubt it is not necessary that there should be many circumstances creating doubt, if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.” The prosecution case in hand is dipped in sea of doubts. Even a slight break, in chain of circumstances would definitely make the grip of chain loose upon accused, especially when the same is built upon basis of feeble evidence.

12.       In the present case, Mst. Amina received injury on 04.08.2018 at 05:00 p.m., but after getting the letter from the concerned police, she went to the hospital on 07.08.2018. Medical Board has opined that injury sustained by the injured lady was the result of falling on the ground. It has also come in evidence that PW Abdul Razzaq sustained injuries in the incident, but there is no medical corroboration to that extent. Incident had occurred on 04.08.2018, but FIR was lodged on 27.09.2018 after seeking directions from the Ex-Officio Justice of Peace. Delay in lodging of the FIR has also not been explained. 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