IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Acquittal Appeal No.S–42 of 2011.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

For the hearing of the main case.

Date of hearing. 03.02.2020.

Mr. Mohammad Hamzo Buriro Advocate for appellant.

Mr. Alam Sher Bozdar Advocate for respondents No.2 to 4.

Syed Sardar Ali Shah DPG for State.

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J U D G M E N T

ZULFIQAR ALI SANGI, J; Through this acquittal appeal the appellant/complainant, namely, Mir Hassan has impugned the judgment dated 08.06.2011 passed by Assistant Sessions Judge, Mirpur Mathelo in Sessions case No.55/2005 arising out of crime No.13/2005 U/s 324, 337-F(iii), 147, 148, 149, 114 PPC Police Station, Mirpur Mathelo, whereby the respondents Allah Dad, Haqnawaz, Javed, Muhammad Nawaz, and Zulfiqar Ali were acquitted by extending benefit of doubt to them.

2. Facts in brief leading to the prosecution case are that complainant Mir Hassan lodged FIR on 01.02.2005 at about 5:00 p.m. stating that on the day of incident he and injured PW Riaz were standing at the cabin of Mumtaz Gabole in village Mir Khan Gabole the accused Javed and Mohammad Nawaz duly armed with K.Kov and rifle accused Sadiq, Haq Nawaz and Zulfiqar armed with guns while accused Allah dad empty-handed all by caste Gabole resident of village Naseer Khan Gabole went there. The accused Allah dad challenged that others should go away they will kill Riaz Hussain as they have a matrimonial dispute with him therefore they will kill him. By saying so, accused Allah dad instigated his son Javed to make the straight fire of K.Kov at PW Riaz Hussain and kill him. On his instigation accused Javed made straight fire from his K.Kov at PW Riaz Hussain which hit him at his left arm who raised cry fell down. In the meantime, PW Allah Bachayo, Waris and others came running and all the accused persons along with their weapons went away towards the western side of the village. The complainant went over PW Riaz Hussain who received injuries at his left arm and blood was oozing and was semi-unconscious. The complainant then removed injured to the Police Station, Mirpur Mathelo where he lodged FIR. The motive as alleged in the FIR was of a matrimonial dispute.

3. After investigation, the charge-sheet against accused/respondents was presented in trial Court and after the completing formalities charge was framed against the respondents to which they pleaded not guilty and claimed to be tried, their pleas were recorded.

4. In support of the case, the prosecution examined PW-1/ Allah Bachayo at Ex.08. PW-2 Mir Hassan was examined at Ex.10 who produced FIR at Ex.11. PW-3 injured Riaz Hussain was examined at Ex.13 who produced mashirnama of injuries of injured Riaz Hussain at Ex.14 and mashirnama of wardat at Ex.15. In the meantime, accused Zulfiqar absconded away and he again appeared and joined the trial. The prosecution adduced further evidence and examined PW-5 Dr. Safdar Hussain at Ex.18, who produced the medico-legal certificate of injured Riaz Hussain at Ex.19. PW-6 I.O/SIP Abdul Majeed was examined at Ex.20 who produced a copy of the letter dated 01.02.2005 referring the injured Riaz Hussain to the Medical officer at Ex.21. Thereafter, learned ADPP closed the prosecution side at Ex.22, and then statements of accused were recorded U/s 342 Cr.P.C. After hearing the parties learned trial court passed the impugned judgment, the appellant challenged the same before this court in the instant acquittal appeal.

5. Learned Counsel for appellant contended that the judgment of the trial Court is perverse, non-speaking and contrary to the evidence brought on the record, therefore, it is liable to be set aside; that the complainant and his PWs have fully supported the case of prosecution and prosecution has fully established its case for conviction; that the trial court had to weight the quality and not the quantity of evidence and in the present case sufficient material was on record warranting conviction of accused but learned trial Court did not give any weight and acquitted the respondents mere on presumption; that medical evidence was produced by the prosecution and supper medical board was constituted who examined the injured and form opinion but the trial court not considered the said opinion of the supper medical board. He lastly contended that conclusion drawn by the trial Court regarding the innocence of the accused was perversely coupled with misreading and non-reading of evidence hence, the same is liable to be set-aside and conviction may be awarded to the respondents.

6. learned counsel for the respondents contended that no case of misreading and non-reading is made out the trial court has rightly appreciated the entire evidence; that no member of the supper medical board was examined before the trial court nor opinion was exhibited ion the evidence; that major contradictions were available in the evidence on such basis trial court acquitted the respondents; that after the acquittal of the respondents they are entitled of the benefit of double presumption of innocence. Lastly, he prayed that the appeal may be dismissed.

7. Learned DPG for the state has supported the judgment of the trial court and contended that medical evidence was not put to respondents at the time of recording their statement under section 342 Cr.P.C and the same is not to be used against them and the respondents were rightly acquitted by the trial court.

8. I have heard learned Counsel for the appellant, Respondents and learned DPG for the State, and perused the record with their able assistance.

9. It is well-settled principles of law that burden of proving the case is always upon the shoulders of prosecution and prosecution is bound to prove the case beyond shadow of reasonable doubt, and if a single circumstantial doubt come in the case of prosecution it goes in favor of accused not as a matter of grace but as a matter of right as laid down by Honourable Supreme Court of Pakistan in case of Tariq Pervaiz v. The State (1995 SCMR 1345), Muhammad Akram v. The State (2009 SCMR 230) and in the case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639).

10. Enmity was admitted by both the parties. The approach to the police station and the hospital is also doubtful. The prosecution witnesses gave contradictory evidence before the trial court on every point. Independent witnesses were not examined during the investigation nor were produced before the trial court where the incident took place which was in front of the cabin of Mumtaz Gabole but he too was not examined.

11. PW Allah Bachayo in his examination-in-chief deposed that the incident took place on 1-10-2005, he further deposed that at the time of incident he was in the otak, whereas he in his cross-examination deposed that at the time of incident he along with his brother Waris was sitting in his house and according to FIR the incident took place on 1-02-2005.

12. Medical evidence was not supportive and was contradictory. Medical evidence was not put to accused at the time of recording their statement under section 342 Cr.P.C., therefore, the same cannot be used against them. The decision of supper medical board arrived on 20-06-2005 and the doctor was examined on 29-09-2010 and the injured PW Riaz was examined on 24-06-2009 but they both were failed to exhibit the decision of supper medical board in their evidence Reliance can be placed in case of Qaddan and others v. The State (2017 SCMR 148) and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710),.

13. Crime weapons were not recovered from the respondents. Recovered empty shell of 7.62 from the place of incident was doubtful as mashir not stated during his deposition before the trial court a single word that the same was sealed in his presence. The recovered empty was not sent for FSL. Empty was shown to be recovered on the next day of the incident from the place of the incident which is also doubtful as the place of incident was a thickly populated area where shops and houses were situated and children were playing there.

14. In view of the above, the impugned judgment seems to be elaborate, speaking one hence does not suffer from misreading, non-reading or non-appraisal of evidence, and it does not warrant the interference of this court. Further, it is a well settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from an appeal against acquittal because the presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish, which are lacking in this case. Reliance is placed on Inayat Ullah Butt v. Muhammad Javed etc. (PLD 2003 SC 563), Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710).

15. Whatever stated above, I concluded that the acquittal of respondents does not suffer from any illegality to call for interference of this Court with the impugned judgment, hence the acquittal appeal is dismissed.

16. Above are the reasons for my short order Date: 03-02-2020.

J U D G E