Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 173 of 2019

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 23.01.2020.

Date of judgment : 23.01.2020.

Mr. A. R. Faruq Pirzada, 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 Muzaffar Ali son of Saifullah Mari has impugned the judgment dated 11.09.2019. Respondents / accused (1) Muhammad Sadique alias Dodo son of Haji Khan Mari, (2) Haji Sain Bux son of Haji Nangar Khan Mari, (3) Ali Nawaz son of Nangar Khan Mari, (4) Shah Nawaz son of Sain Bux Mari and (5) Abdul Karim son of Haji Khan Mari were tried by learned 1^st Additional Sessions Judge / Model Criminal Trial Court (MCTC), Naushahro Feroze in Sessions Case No.916/2014 for offences under Sections 302, 337-H(2), PPC. On the conclusion of the trial, vide judgment dated 11.09.2019, 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:

“Succinctly facts of the prosecution case as gleaned from the FIR lodged by complainant Muzaffar Ali s/o Saifullah by caste Mari on 06.12.2013 @ 1500 hours are that Abdul Aleem Mari & others are their caste-fellows. About 2‑½ years ago, prior to incident, the brother of Abdul Aleem Mari namely Sadique alias Dado Mari & others had abducted Mst. Nadia alias Toti d/o Ali Sher Mari from their village for which her uncle had lodged such FIR against them, due to which his (complainant’s) father Saifullah s/o Muhammad Siddique Mari aged about 47 years being Nekmard of village had repeatedly been asking to Sadique alias Dado Mari & others for return of abducted girl but they did not do so, rather from time to time used to issue threats not to follow the said girl so also withdraw from the abduction case, otherwise, they will cause harm to them. Yesterday, complainant, his father Saifullah, uncle Miskeen Ali and relative Abdul Ghani s/o Haji Razi Khan Mari were sitting on cots & gossiping at Tetri Mori Bus stop in-front of the shop of Ghulam Qambar Khoso where at about 12.00 noon, six persons on two motorcycles came there from Phull side who were properly seen and identified to be 1.Abdul Aleem, 2.Sadique alias Dado both armed with Kalashnikovs, 3.Abdul Karim armed with pistol all three sons of Haji Nabi Bux Mari r/o own houses Deh Miranpur, 4.Shahnawaz s/o Haji Sain Bux Mari, 5.Ali Nawaz s/o Nangar Khan, armed with guns and 6. Haji Sain Bux s/o Nangar Khan empty handed all by caste Mari r/o own houses, Deh Tetri, Taluka and District Naushahro Feroze. All armed persons started aerial firing in order to create harassment and threatened to complainant party not to come near and while saying so, Haji Sain Bux instigated co‑accused to kill Saifullah Mari, as a result, accused Abdul Aleem and Sadique alias Dado Mari made straight fires from their Kalashnikovs upon complainant’s father Saifullah, who after sustaining firearm injuries fell down, then all accused persons while making aerial firing went away on their motorcycles towards eastern side of Tetri mori. On cries of complainant party and firearm reports, people from vicinity gathered there and saw that his father Saifullah had firearm injuries at the backside of waist from which blood was oozing excessively who within their sight died on the spot, thereafter complainant conveyed such information to police, then with the help of police, shifted the dead body of deceased to Civil Hospital, Naushahro Feroze wherefrom after getting post mortem and becoming free from funeral ceremony, reported the incident.”

FIR was recorded vide Crime No.141/2013 registered at P.S Darya Khan Mari, District Naushahro Feroze for offences under Sections 302, 337-H(2), 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.03. They did not plead guilty and claimed to be tried.

5. At the trial, prosecution examined nine (09) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr.P.C at Ex.23 to 27, 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 11.09.2019, acquitted the above named respondents / accused.

8. Complainant being dissatisfied with the acquittal of the respondents / accused has filed this Appeal.

9. Learned counsel for the appellant / complainant mainly contended that it was day-time incident; that there were minor contradictions in the evidence of the prosecution witnesses; that delay in lodging of the FIR has been explained. Lastly, it is argued that trial Court did not appreciate the evidence according to the settled principles of law. In support of the contentions, he has relied upon the cases reported as Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 Supreme Court 11), Mian Rashid Ahmad v. Syed Azeem Shah and another (1991 SCMR 94), Amal Sherin and another v. The State though A.-G., N.-W.F.P. (PLD 2004 Supreme Court 371), Muhammad Din and others v. The State and others (2005 SCMR 1756), Mubashar Ahmad v. The State and Muhammad Sharif v. The State (2009 SCMR 1133), Surendra and others v. State of Uttar Pardesh (2012 SCMR 1422), Meer Nawaz and another v. The State (2019 P Cr. L J 17) and Khair Muhammad and another v. The State (2019 P Cr. L J 26).

10. Mr. Shafi Muhammad Mahar, learned DPG argued that during investigation, accused Haji Sain Bux, Ali Nawaz, Shah Nawaz and Abdul Karim were found innocent, but they were joined subsequently; that there was delay of one day in lodging of the FIR, for which no plausible explanation has been furnished; that there was delay of 04 days in recording of 161, Cr.P.C statements of the PWs, which shows that PWs were not present in the village; that enmity was admitted between the parties; that empties were not sent to the Forensic Science Laboratory; that Investigation Officer failed to produce the arrival and departure entries with regard to his investigation movement. It is argued that PWs, who were the eyewitnesses of the incident, were rightly disbelieved by the trial Court as they could not establish their presence at the time of the incident. Mr. Mahar, DPG supported the judgment of the trial Court. In support of his arguments, he has relied upon the case reported as Abdul Jabbar and another v. The State (2019 SCMR 129).

11. We have carefully perused the impugned judgment and relevant record. It appears that trial Court, vide judgment dated 11.09.2019, acquitted the accused mainly for the following reasons:

“ Admittedly, much prior to present incident, the FIR No.213/2011 regarding abduction of Mst. Nadia @ Toti was cancelled by police during investigation duly approved by learned Judicial Magistrate vide order dated 18.10.2011, therefore question of extending murderous threats at the hands of accused persons to the complainant party to withdraw from said FIR does not arise at all thus, prosecution has failed to establish such motive. There is inordinate delay in registration of FIR without any plausible explanation though the police station was situated at the distance of 617 km from the alleged place of incident which suggests that case had been registered after consultation and deliberation. This dictum has been laid down by Honourable Supreme Court reported in 2007 SCMR 108. It is matter of record that prior to incident Mst. Nadia @ Toti was residing in the house or deceased Saifullah and after her alleged abduction deceased Saifullah lodged FIR No.213/2011 whereas according to complainant and PW Miskeen such FIR was lodged by Ali Gohar, the uncle of abductee, meaning thereby they have made false assertion in the present FIR as well as before this court on oath. As per evidence of complainant and PW Miskeen, on the relevant day they were proceeding towards Darya Khan Mari as deceased Saifal was intended to purchase fertilizer but it does not appeal to prudent mind that as to why they halted & sat on cots beside the closed shop of Ghullam Qambar Khoso at Tetri stop, therefore, the presence of complainant & PWs becomes extremely doubtful. Moreover, complainant neither in the FIR nor in his chief examination has stated a single word that on the relevant date they were proceeding towards Darya Khan Mari for purchasing fertilizer. After registration of FIR dated 06.12.2013, the statements of witnesses U/s 161 Cr.P.C were recorded on 10.12.2013. It is settled principle of law that statements of witnesses are ought to have been recorded promptly without giving them any opportunity to improve upon and subtract from what they had seen and even one or two days unexplained delay would be fatal to the prosecution case and testimony of such witnesses could not be safely relied upon. In a case of Muhammad Asif versus The State reported in 2017 SCMR 486, the Honourable Supreme Court of Pakistan has held which reads as under;

S.161 -----Statement of witness before police----Delay---Ever one or two days unexplained delay in recording the statements of eye-witnesses would be fatal and testimony of such witnesses could not safely be relied upon.

Admittedly, the alleged place of incident was surrounded with shops and inspite of presence of peoples from vicinity, not a single independent person is shown as witness to corroborate version of the complainant, therefore, in presence of admitted existing enmity between the, sole testimony of complainant & PW Miskeen being members of same family cannot safely be relied upon with independent strong ocular corroboration. This dictum has been laid down by Honourable Supreme Court reported in 2007 SCMR 108. Mere sending of blood stained soil to Chemical Examiner would not serve the purpose of the prosecution unless the blood stained soil and blood stained cloths were sent for opinion to Serologist for group matching and failure to follow such practice would make the opinion of Chemical Examiner conclusive which could not be used as piece of corroboratory evidence. Alleged recovered empty shells of Kalashnikov have not been sent to Forensic Science Laboratory in order to know its bore thus becomes immaterial. According to medical officer, at the time of postmortem of dead body, the eyes of deceased were opened, thus if family members and witnesses of deceased had witnessed the incident they would have followed the common practice of closing the eyes of deceased on his death and such fact indicates that none from complainant party were present to witness the occurrence. So far as testimony of remaining official witnesses including mashir is concerned, which is based upon circumstantial evidence, is not sufficient to saddle the present accused with commission of offence. It is settled principle of law that prosecution has to prove its case beyond any shadow of doubt by producing satisfactory, tangible, valid, solid trustworthy, cogent, consistent, unimpeachable, coherent and confidence inspiring evidence and if any slightest doubt is created benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal.

Prosecution has failed to produce any departure or arrival entry to show the movement of investigation officers on the relevant dates, therefore failure to do so cuts the root of the prosecution case. In the case of Abdul Sattar & others Vs The State reported in 2002 P.Cr.L. J 51, the Honourable High Court of Sindh has held which reads as under;

Entry in Roznamcha---- Non production of entry in Roznamcha by the prosecution in Court to prove the movement of police from the police station to the place of recovery of weapon cuts at the root of the prosecution case making the entire episode doubtful and the prosecution version unbelievable. 

So far as medical evidence is concerned, it is settled principle of law that medical evidence is type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence, but not able to identify the assailants. Reliance is placed on 2018 P.Cr.L.J 570 Balochistan.

It is settled principle of law that prosecution has to prove its case beyond any shadow of doubt by producing satisfactory, tangible, valid, solid trustworthy, cogent consistent, unimpeachable, coherent and confidence inspiring evidence and if any slightest doubt is created benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, it has been held by Honourable Apex Court that accused is always to be considered as the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance is placed on 2018 SCMR 772 which reads as under;

Benefit of doubt---Scope---While giving the benefit of doubt to an accused it was not necessary that there should be many circumstances creating doubt---If there was a circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as matter of grace and concession, but as a matter of right.”

In a case of ABDUL JABBAR Versus The STATE reported in 2019 SCMR 129, the Honourable Supreme Court of Pakistan has held which reads as under;

Benefit of doubt---Scope---Once a single loophole was observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eyewitness being doubtful, the benefit of such loophole/lacuna in the prosecution case automatically went in favour of an accused.

The case law referred by learned counsel for the complainant is distinguishable with the facts in hands as each & every criminal case is to be decided according to its peculiar facts & circumstances. Accordingly point is answered as doubtful.”

12. In our considered view, Acquittal Appeal merits no consideration for the reasons that present incident had occurred on 05.12.2013 at 1200 hours, whereas, FIR was lodged on 06.12.2013 at 1500 hours. Delay in lodging of the FIR has not been explained. There was also delay of four days in recording 161, Cr.P.C statements of PWs, which clearly shows that eyewitnesses were not present at time of the incident and they were setup witnesses. Admittedly, eyewitness namely Miskeen Ali was chance witness. He could not explain his presence at the time of the incident. It has also come on record that place of incident was surrounded by the shops and presence of the private witnesses has also come on record, but prosecution failed to examine independent persons of the locality. Motive, as setup by the prosecution, has not been established at trial. There was also background of the dispute over the matrimonial affairs between the parties. In such circumstances, prosecution should have produced some independent evidence, but prosecution has failed to examine independent persons. Trial Court has rightly appreciated the evidence. Moreover, the scope of acquittal appeal is quite narrow and limited, and principles for consideration of the Appeal against conviction and Appeal against acquittal are entirely different. Learned counsel for the appellant / complainant could not satisfy the Court about any flaw in the judgment of the trial Court. 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 stated reasons, while relying upon the above cited authority of the Hon’ble Supreme Court, we have no hesitation to hold that unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Consequently, Criminal Acquittal Appeal fails and the same is dismissed.

J U D G E

J U D G E

Abdul Basit