IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No. D-38 of 2020

Present:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Zulfiqar Ali Sangi,

Appellant: Hamid Mazari,

Through Mr. Akbar Ali S. Bhangwar, Advocate.

The State: Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing: 01-12-2020.

Date of Decision: 01-12-2020.

Date of reasons: 08-12-2020.

J U D G M E N T

Zulfiqar Ali Sangi, J. This criminal acquittal appeal has been filed against the judgment dated 20.10.2020, passed by the learned 1^st Additional Sessions Judge, Kandhkot in Sessions Case No.66/2019, whereby the respondents/accused were acquitted of the charge by the learned trial court.

2. Briefly facts of the case that complainant Hamid Mazari got registered F.I.R on 16.11.2009, stating therein that on 09.11.2009, complainant along-with his brother Muhammad Yousif, son Shah Muhammad and maternal nephew Sher Jan came to Guddu city and after finishing their work they proceeded towards their house on bikes. In the meantime at 07:30 pm, they reached near Zahir Peer at northern bank of BS Feeder. Four unknown accused persons on two bikes were standing there, the accused persons shouted upon complainant party to stop and due to fear the complainant party alighted from their bikes. The complainant party on the light of bikes saw that two accused persons were armed with TT pistols, one was armed with K.K and one was with stick. It is alleged that two accused persons opened fires with TT pistols upon Muhammad Yousif who died on spot while complainant party due to empty handed remained silent. It is alleged that then two of the accused persons pointed their TT pistol & K.K upon complainant party to remain silent while two of the accused persons took away the dead body of Muhammad Yousif on their bike towards western side via northern bank of BS Feeder. After half an hour two of the accused persons left complainant party while threatening not to make complaint and they went away on their bike. The complainant party came back to the house, and searched the dead body at own level, as such on 16.11.2009, they found the dead body of deceased from northern bank, the complainant left the PWs over the dead body and went to Ps and got registered the FIR.

3. After completing the investigation, Investigation Officer submitted the challan and after completion of all the legal formalities the trial court framed the charge against the accused to which they pleaded ‘not guilty’ and claimed to be tried.

4. At the trial, the prosecution examined P.W-1, M.O Dr. Manzoor Ahmed Kalwar, he produced attested copy of post mortem report at Ex.8-A, Insp. Ghulam Mustafa Mirani at Ex.12, he produce carbon copies of memo of place of incident, attested copies of FIR, danistnama, memo of inspection of dead body at Ex.13-A to 13-D, respectively, PW- PC Hatim Ali Chachar was examined at 14, he is corpus bearer and produced carbon copy of receipt of dead body at Ex.14-A, complainant Hamid was examined at Ex.14, he produced his further statement, statement under section 164 Cr.PC at Ex.14-A and 14-B along with attested copy of criminal miscellaneous application and order thereon dated 7.4.2017, PW Shah Muhammad was examined at Ex.15, he produced his further statement under section 161 Cr.PC and statement under section 164 Cr.PC at Ex.15-A and B, respectively, ASI/I.O Faiz Muhammad Gadani was examined at Ex.16, he produced memo of arrest of accused at Ex.16-A, Mr. Shafquat Hussain Naich, learned Judicial Magistrate, was examined at Ex.17, he produced application of I.O to record statements under section 164 Cr.PC and statement of PW Sher Jan under section 164 C.PC at Ex.17/A and 17-B, respectively. Thereafter, prosecution closed its side.

5. Trial Court recorded statements of accused under section 342 Cr.PC wherein they denied the prosecution allegations, claimed their false implication in the case. However, accused Sobdardid not opt to record his statement on oath so also did not opt to lead defence evidence to disprove his case. However, accused Sono alias Sonzada and Rabnawaz opted to record their statements on oath, which were recorded at Ex.25 and 26 respectively. However, they also did not lead any evidence in their defence.

6. After assessment of evidence learned trial court has passed the above impugned judgment which is assailed before this Court through instant criminal acquittal appeal.

7. Learned counsel for the appellant contended that all the witnesses have fully supported case of prosecution but their evidence was not appreciated by the learned trial court; that there are minor contradictions in the evidence of witnesses and on the basis of minor contradictions, accused were acquitted; that learned trial court has committed illegality while acquitting the respondents and there was huge evidence for conviction of respondents.

8. Learned Additional Prosecutor General contended that there are several contradictions in the evidence of the witnesses and learned trial court has rightly appreciated the evidence and passed the acquittal judgment and he fully supported the judgment of trial court and prayed for dismissal of acquittal appeal.

9. We have heard learned counsel for the parties and gone through the material available on the record with their able assistance.

10. On careful scrutiny of the evidence of complainant and PW Shah Muhammad, who have deposed in their examination in chief that accused persons having TT pistols,opened fires upon deceased Muhammad yousif but surprisingly as per post mortem report only one injury of fire arm has been observed by SMO. Moreover, three empties have been recovered from the place of incident though deceased had received only one fire arm injury. Furthermore incident has allegedly taken place in night time and identification was shown on the light of motorcycle and the identification of accused by the complainant party in the court after the lapse of eight years was doubtful. There was delay of about 08 days in registration of FIR and the same has not been explained properly. As regards to the source of information about the involvement of the accused in the offence,the complainant and PW Shah Muhammad have deposed that they came to know that accusedSobdar, Sono and Rabnawaz have committed the murder of deceased Muhammad Yousif and have not disclosed during their evidence as to how they came to know and who informed them about the involvement of the accused persons. For the extra-judicial confession of the accused persons before the complainant party that accused persons became ready to pay compensation after admitting their guilt but they refused to receive the compensation. However, nowhere PWs have mentioned the date, time and place of extra-judicial confession made by the accused persons which creates very serious doubt and the extra-judicial confession cannot be relied upon without any independent corroboration and the same is weak type of evidence.

11. We have carefully examined the impugned judgment of the trial court and found that the trial court discussed each and every piece of evidence produced by the prosecution in depth.

12. 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 a reasonable doubt, and if a single circumstance creates doubt in the case of prosecution it goes in favour of accused and the benefit of doubt shall be extended to the 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 case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639).

13. It is also a 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 appeal against acquittal, because 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 in nature, which are lacking in this case. Reliance is placed on InayatUllah Butt v. Muhammad Javed etc. (PLD 2003 SC 563), Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710).

14. In view of above, the impugned judgment seems to be an elaborate, speaking one hence does not suffer from misreading, non-reading or non-appraisal of evidence, and it does not warrant interference of this court.

15. Whatever is stated above, we have reached at the conclusion that the acquittal of respondents does not suffer from any illegality so as to call for our interference with the impugned judgment. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and we see no legal justification to disturb the same in view thereof the instantcriminal acquittal appeal is dismissed in limine.

These are the reasons of our short order dated:01-12-2020.

JUDGE