Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 172 of 2019

 

 

Date of hearing        :           14.02.2020.

 

Date of judgment     :           14.02.2020.

 

 

Mr. Abdul Wahab Shaikh, Associate of Mr. Achar Khan Gabol, Advocate for appellant / complainant.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Mai Arbab Khatoon wife of Ghulam Hyder, by caste Lakhan has impugned the judgment dated 07.09.2019. Respondents / accused (1) Muhammad Ubed-ur-Rehman son of Rustam Rehman Hanse, (2) Arif Bashir son of Bashir Ahmed Mughal, (3) Mukamil Badshah son of Razi Badshah Khatak and (4) Sajid Mehmood son of Choudhri Nazar Muhammad Waraich were tried by learned Judicial Magistrate-II, (MTMC) Ghotki in Criminal Case No.221/2019 for offences under Sections 337-A(i), 337-F(i), 506, 147, 148 read with Section 34, PPC. On the conclusion of the trial, vide judgment dated 07.09.2019, 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:

“Precisely, facts of the case as contained in FIR are that, per complainant her son namely Gulzar Ahmed was employed with Power Plant Dad Laghari and about 7/8 years back he was fired by authorities and they kept his son on hollow hopes of reinstate but did not do so. The complainant further alleges on 05.02.2018 at 11:00 A.M she along with her son Gulzar and daughter in law Mst. Zubaidan were present at their house, in meantime accused each one Muhammad Ubed-u-Rehman (General manager), Arif (civil engineer), Mukamil Badshah (admin officer) and Sajid (security incharge) along with five unidentified accused persons arrived and asked to cut the trees and vacate the house for security reasons on refusal they all inflicted stick injuries on the person of complainant and in result thereof she sustained one head injury. Hence this FIR was registered.”

            FIR was recorded vide Crime No.44/2018 registered at P.S Dad Laghari, District Ghotki for offences under Sections 147, 148, 337-A(i), 337-F(i), 506/1, PPC.

3.         On the conclusion of the investigation, challan was submitted against the accused under Sections 337-A(i), 337-F(i), 506/1, 147, 148, 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 the learned counsel for the parties and assessment of the evidence, vide judgment dated 07.09.2019, 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 there were minor contradictions in the evidence of the prosecution witnesses; that impugned judgment of the trial Court is based on misreading and non-reading of the evidence. Lastly, it is argued that trial Court has failed to appreciate the evidence in its true prospective and the judgment of the trial Court is perverse and the same is liable to be converted to the conviction.

10.       Syed Sardar Ali Shah, learned DPG argued that there was inordinate delay in lodging of the FIR, for which no plausible explanation has been furnished; that judgment of the trial Court is structured on sound reasons and the same is neither perverse nor arbitrary. Learned DPG 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 07.09.2019, acquitted the respondents / accused mainly for the following reasons:

“          A chronological history of matter in hand shows, admittedly alleged incident took place on 05.02.2018, complainant approached to the Court of honorable Justice of Peace/4th Additional Sessions Court Mir Pur Mathelo obtained order dated 20.02.2018 for lodgment of FIR but same was registered on 13.08.2018 with a delay of six months and eight 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, Muhammad Ubed-u-Rehman (General manager), Arif (civil engineer), Mukamil Badshah (admin officer) and Sajid (security incharge) along with; five unidentified accused persons, arrived, sought permission to cut tree and surprisingly at same time she deposes they asked to vacate the house and on refusal all accused persons hit stick injuries on her persons, here medical record shows she was sustaining only one simple injury, which per doctor could be self-suffered.

            Be that as it may, but there is another jolt in prosecution case; per injured/ complainant Mst. Arbab on 05th month she does not remember 2018, she was hit by accused, per WMO injured/complainant arrived at hospital on 10.02.2018 after delay of five days and surprisingly the duration of injury was opined as two days back, meaning thereby after three days of incident the injury was caused on the person of complainant. Nowhere injured complainant has deposed that, her injuries were noted at PS or any memo of injuries was prepared. If this is position of prime witness of the prosecution, then how this Court rely on testimony of such witness and award punishment to accused named in FIR; when the own narration of injured complainant is negated by the medical evidence regarding injury sustained by her and its duration. Reliance is placed on case titled Muhammad Irshad & Others V. The State (1999 SCMR 1030).

            One step ahead, the ocular account has been furnished by complainant and PW Gulzar, whereas another eye witness Mst. Zubaida has not been produced by prosecution in support of evidence adduced by complainant and PW Gulzar Ahmed, therefore an adverse interference under Article 129(g) QSO 1984, can be drawn that, if she would have been produced, she would not have supported the case of prosecution. Furthermore, no specific role has been assigned to any of accused, 09 accused persons have been implicated for single injury, it is strange to note accused are not shown to have sticks in their hands either in FIR or in depositions of PWs, whereas at evidence complainant claims all accused persons hit sticks on her person. It also does not appeal to a prudent mind that, within the view of a son, his old aged mother (complainant) was hit by accused persons but he did not offer any interference/resistance, even the accused persons who are shown empty handed hit an old aged lady, leaving her son (PW Gulzar) free to depose against them, though they were annoyed with him. I find it quite strange and unnatural; which makes the presence of PW Gulzar Ahmed at spot at relevant time doubtful.

            Another jolt in prosecution story is that, investigation officer did not produce important roznamcha entries of his movement to place of vardat etc., at his evidence which he kept during course of investigation, it seems violation of rule 2.48 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 Pc.Rlj 51).

            So for the objection of learned defense counsel with regard to producing opinion of medical board by WHO is concerned, same is over ruled for a single reason that a doctor being a paid employee of Health Department can act on its behalf.

            I have considered all pros and cons of this case and have come to this irresistible conclusion that, prosecution could not prove its case against the accused persons beyond shadow of doubt. 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, incident had taken place on 05.02.2018, and the appellant / complainant, after seeking directions from learned 4th Additional Sessions Judge / Ex-Officio Justice of Peace, Mirpur Mathelo, lodged the FIR on 13.08.2018. There was delay of 06 months in lodging of the FIR. Delay has not been fully explained. It gave rise to the doubt, which could not be extended to anyone else except the accused. There is also another infirmity in the case of prosecution. Medical Officer has certified that injury sustained by the appellant / complainant is self-suffered. It is also evidence that Mst. Zubaida was eyewitness of the incident, but she was not produced before the trial Court. Presumption has been rightly drawn by the trial Court that in case, Mst. Zubaida would have been produced before the trial Court, she might have not supported the case of prosecution. It has also come on record that son and mother of the appellant / complainant were also present, but no resistance was offered by them. It does not appeal to a prudent mind. Even otherwise, trial Court has rightly held that prosecution case appears to be doubtful and 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 a matter of right. Finding of acquittal recorded by the trial Court is based upon sound reason. 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, I 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

Abdul Basit