Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 01 of 2003

 

                                                                                    Present: Mr. Naimatullah Phulpoto, J

                                                Mr. Rasheed Ahmed Soomro,J

 

 

Date of hearing                    :           27.08.2019.

Date of announcement      :           05.09.2019

 

Mr. Ghulam Shabbir Shar, Advocate for the appellant / complainant.

Sardar Akber F. Ujjan Advocate for Respondents Nos. 1 to 4.

Mr. Aftab Ahmed Shar, Additional Prosecutor General.

                                                            -.-.-.

 

 

J U D G M E N T

 

 

NAIMATULLAH  PHULPOTO, J.--  Through this Acquittal Appeal, appellant / complainant Gulab alias Jamaluddin son of Muhammad Saifal Ghangro has impugned the judgment dated 03.12.2002  passed by learned Additional Sessions Judge, Kandiaro in Sessions case No. 55 of 2001 for offences under sections 302, 435, 324, 148, 149 PPC. On the conclusion of the trial vide judgment dated 03.12.2002, respondents / accused Nos. 1 to 4 namely Ghulam Muhammad, Jan Muhammad, Gulsher and Asghar were acquitted while co-accused Khan Muhammad was declared as Proclaimed Offender and his case was kept on dormant file.

2.         Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are that on 23.06.2001 at 1000 hours, complainant Gulab alias Jamaluddin son of Muhammad Saifal Ghanghro got registered F.I.R at Police station, Kandiaro, stating therein that, he used to reside in village Kirir Ghanghro, deh Peer Mard. The land of one Kouro Panah Ghanghro having area 1-17 ( one acre and seventeen ghuntas) is situated infront of the house. It is alleged that said land is being cultivated by the complainant since 25 years on harap basis. About some time back, the said land was purchased by Khan Muhammad Ghanghro from Kouro Panah Ghanghro. Complainant has got filed such civil case regarding the said land, which is still pending. Accused Khan Muhammad Ghanbhro was saying the complainant party that they should leave the said land. To which, complainant asked him that since he has filed civil case before the civil forum, and they have got right to purchase the said land, and any decision made by the Court would be accepted by the complainant party. On the day of incident viz. 23.06.2001 at morning time viz. 7.00 a.m suddenly fire flared up on the hedge of complainant party, therefore, the complainant and his brother deceased Muhammad Ibraheem, son of Wazeer Ali came out and saw accused persons namely Khan Muhammad, Ghulam Muhammad and Jan Muhammad, all sons of Bahar Ghanghro, were armed with guns, and accused Gulsher and Asghar both sons of Ghulam Muhammad were armed with pistols. Meanwhile, accused Khan Muhammad challenged the complainant and disclosed that they have set the hedge of complainant on fire and none should come near to them. As such, land pertains to them. All accused persons were standing in the land of complainant. Meanwhile accused persons, in order to commit the murder of complainant and P.Ws, straight away fired at complainant party with their respective weapons. With the result, a gun shot fire of accused Khan Muhammad hit to Muhammad Ibraheem and fire of shot gun hit to P.W Wazeer, fired by accused Ghulam Muhammad. They raising cries, fell down. Complainant took the shelter of wall, meanwhile, on the gun reports P.Ws Muhammad Umer son of Muhammad Sulleman Ghanghro and Shah Nawaz son of Gul Muhammad Ghanghro and other co-villagers came at the spot, and restrained the accused persons. Thereafter, accused went away along with their weapons towards their houses. Thereafter, complainant saw that Muhammad Ibraheem had received fire arm injury at his chest, was bleeding and dead.  P.W Wazeer had received injrueis on left leg and right arm. Complainant leaving the said P.Ws at dead body and injured, went to police station for lodging the report. It is alleged in the FIR that accused persons due to dispute over the land, has murdered the brother of complainant namely: Muhammad Ibraheem, caused injuries to injured Wazeer Ali, set the hedge of complainant on fire surrounded the land. FIR was recorded on 23.06.2001 at 10.00 a.m vide Crime No.23/2001 at Police Station Kandiaro under sections 302, 324, 435, 148, 149 PPC.

3.         On the conclusion of the investigation, challan was submitted against the accused under sections 302, 324, 337-F(iii),148, 149 PPC.

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

5.         At the trial, prosecution examined seven (07) PWs and prosecution side was closed.

6.         Statements of accused Ghulam Muhammad, Jan Muhammad, Gulsher and Asghar were recorded under Section 342, Cr. P.C in which accused claimed false implication in this case and denied the prosecution’s allegation.

7.         Learned trial Court after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 03.12.2002 acquitted the accused for the following reasons:

“          From perusal of the mashirnama of place of occurrence, the blood stained earth and two empty cartridges also creates doubt. As such, from the place of occurrence only two empty cartridges were recovered, whereas, the Medical Officer has deposed that injuries caused to the injured was the result of two fires, and third fire was hit to deceased. Therefore, it is quite unbelievable and doubtful that how only two empty cartridges were secured from the place of wardhat. Besides this, all witnesses have admitted that there were so many other persons gathered on the place of incident, but despite of that none was joined from these persons who gathered at the place of incident to attest the memo except the kith and kin of complainant party. The relationship of the witnesses, including the complainant with the deceased have also on record. As such, deceased Muhammad Ibraheem was son of the complainant, so also, injured witness Wazeer is son of the complainant. P.W Shah Nawaz is nephew of complainant. Whereas, Imam Bakhsh and Umaruddin are his maternal cousins. Therefore, it is quite clear that the P.Ws who are said to have witnessed the occurrence, are closely related to the deceased, were interested and inimical witnesses and their evidence does not inspire the confidence, on account of major contradictions in their evidence, and their presence at the place of occurrence at the relevant time is not proved by the prosecution beyond reasonable shadow of doubt. Our Honourable Superior Courts have held in this respect, in the case law reported in P. Cr. L.J. 1999 Lahore page 2032.

            From perusal of the mashirnama of place of incident, the blood stained earth and empty cartridges were recovered by police on 23.6.2001, and the same were sent for their examination and report to the Chemical examiner on 30.7.2001, after inordinate delay of about one month and seven days of the occurrence. Whereas the shot gun was recovered from accused Ghulam Muhammad on 1.7.2001, and it was sent to the Ballistic expert on 24.8.2001 after inordinate delay of about one month and 24 days of its recovery. Therefore, the delay in sending the parcels to the Laboratory is highly suspected and fatal to the case of prosecution, because during that period anything could have happened to the articles. In the case of Waryam and another versus the State as reported in 1985 P. Cr. L. J. Lahore page 165-B, the positive report of the Ballistic expert was held to be of no consequence, when the crime weapon and empty cartridges remained in the custody of police for about two months before they were sent to the expert. Therefore, the reports of the experts are doubtful and excluded from the consideration. Such view is also held in the case law reported in P.L.D. 1998 Lahore page 676-E.

            From perusal of the evidence of complainant and P.W Wazeer. They have deposed that P.W Shah Nawaz had also reached at the spot and witnessed the occurrence. But the said P.W was given up by the prosecution, for the reasons best known to it. By giving up said important witness of the case, the case of prosecution is doubtful and unbelievable. Therefore, the ocular evidence suffered from the material contradictions and without independent corroboration in the circumstances, so also, medical evidence did not support the ocular testimony, coupled with the dishonest investigation by the Investigating Agency, which has rendered the case of prosecution doubtful and unbelievable. The reliance is placed on the case law reported in Criminal Law Judgments 2002 Cr. L. J. Karachi page 279.

            It is settled principle of law that the prosecution is not bound to setup the motive in the case, but once the prosecution has setup motive, it is bounden duty and obligatory for the prosecution to prove the same. The motive in the case is that accused persons had purchased the land from one Kouro Ghanghro, through registered sale deed and it had resulted the death of deceased Muhammad Ibraheem as alleged in the F.I.R. On the piece of evidence, I have already discussed earlier that since the accused persons were in the peaceful possession, and this thing is also admitted by the complainant Gullab and P.WWazeer, therefore, they had no motive to commit the offence. The prosecution has miserably failed to prove the motive against the accused persons, beyond any reasonable shadow of the doubt. Neither, any document in this regard is produced by the prosecution. The reliance is placed on the case law reported in P. Cr. L. J. 1993 Lahore page 2466-B.

            So far the recovery of crime weapons viz. shot gun is concerned. It is stated by the I.O and mashir that there is no specific marking on the shot gun. Whereas, they have admitted that there is an old coin fitted on the shot gun and it was not mentioned in the mahsirnama. Mashir has deposed tht since the shot gun was having wooden butt, therefore, he can say that it is the same gun which was recovered from the accused. Accused Ghulam Muhammad was arrested on 25.06.2001 and shot gun was recovered from him on 1.7.2001 after the inordinate delay of about 6 days of his arrest. Besides this, the mashir Abdul Haque is closely related to the deceased and complainant. The I.O has failed to comply with the provisions of section 103 Cr.P.C. Besides this, the said shot gun was kept at the police station for about two months after the recovery. Therefore, the recovery of gun is quite doubtful and unbelieveable. The reliance is placed on the case law reported in SCMR 1983 page 963-E.

From perusal of the above major contradictions, so also, the case laws cited by learned counsel for accused, I have come to the conclusion that the case of prosecution is unbelievable and doubtful. Besides this, it is settled principle of law if a dent is casted to the prosecution’s case benefit of doubt arises in the case of prosecution, it should be extended to the accused as not a concession, but as his right. In the instant case, there are major contradictions in the evidence of prosecution witnesses, the ocular evidence is belied by the medical evidence, the place of occurrence is not same as put forth by the prosecution, the delay is intentional and deliberate on the part of prosecutions, so also, a dishonest and malafideous investigation was conducted by the Investigating Officer, as discussed above. Thus, the accused persons have succeeded to cast doubt on the case of prosecution and prosecution has miserably failed to prove the same against the accused persons. The reliance is placed on the case law reported in P.Cr.L.J 1999 Karachi page 598-D.”           

8.         Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

9.         Learned advocate for the appellant / complainant mainly contended that impugned judgment of the trial Court is based on misreading and non-reading of evidence. It is also argued that trial Court has disbelieved strong evidence without assigning sound reasons, and prayed for converting the acquittal to the conviction.

10.       Mr. Aftab Ahmed Shar, Additional Prosecutor General assisted by Sardar Akber F. Ujjan Advocate for respondents argued that trial Court has properly appreciated the evidence and acquittal of the accused / respondents is neither perverse nor based upon misreading of evidence. They have supported the judgment of the trial Court. Learned counsel for the respondents / accused relied upon the case law reported as Raham Ali and 3 others vs. The State ( 1976 P.Cr.L.J 17), Naumanullah and others vs. The State and others (2019 YLR 1131), Muhammad Javed vs. The State and another (2019 YLR 1208), Allah Ditta vs. The State and another (2019 P.Cr.L.J 172) and Mansoor alias MANSAB vs. The State (1992 MLD 200).

11.       In the present case, presence of the complainant at the time of incident was highly doubtful for the reasons that evidence of complainant Gulab  alias Jamaluddin and injured PW namely Wazeer is materially contradicted to each other on material particulars of the case. Complainant Gulab has deposed that absconding accused Khan Muhammad fired from his pistol which hit to the deceased Muhammad Ibraheem and injured Wazeer also fell down but on the same point, injured Wazeer has deposed that respondent Ghulam Muhammad fired from his gun at him. So far the recovery of the gun from Ghulam Muhammad is concerned, the incident took place on 23.06.2001 and the gun was recovered from respondent Ghulam Muhammad on 01.07.2001 and it was sent to Ballistic Expert on 24.08.2001. Complainant Gulab in the cross examination has replied that accused fired at the injured Wazeer and deceased from the distance of 45/50 paces but Medical Officer in his cross examination had replied that fires were made from the distance of 20 yards. According to injured PW Wazeer, he sustained one fire arm injury but Medical Officer in the cross examination has replied that injured had sustained two shots. Evidence of injured PW Wazeer in above circumstances is not trust worthy and confidence inspiring.  Admittedly, no one had seen any of the accused while setting on fire  the hedge, though they have claimed to be the eye witnesses of the incident. There was three hours delay in lodging of the FIR when Police station was at the distance of 3/4 kilometers, no plausible explanation has been furnished. Evidence of PW Umeruddin is hearsay evidence, so far the recovery from accused Ghulam Muhammad is concerned prosecution has failed to produce evidence with regard to safe custody of the gun at Police station and safe transmission to the Ballistic Expert. SHO of Police Station Kandiaro had taken the weapon to Ballistic Expert. Neither he has been examined nor Incharge of the Malkhana, to prove the safe custody. Evidence of P.Ws is contradictory to each other on so many material aspects of the case. Ocular evidence is also contradictory to the medical evidence.

12.       It is settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. These powers must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused.

13.       It is also settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In case of Zaheer Din v. The State (1993 SCMR 1628), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases-law on, the question of setting aside an acquittal by this Court. They are as follows:--

(1)        In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well accepted presumptions: One initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.

(2)        The acquittal will not carry the second presumption and will also thus lose the first one if on pints having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(3)        In either case the well-known principles of reappraisement of evidence will have to be kept in view while examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observations of some higher principle as noted above and for no other reason.

(4)        The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. ”

14.       In the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others(2019 SCMR 1315), Hon'ble Supreme Court has held 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.”

15.       Learned counsel for the appellant / complainant has not been able to point out any serious flaw or infirmity in the impugned judgment. View taken by the learned trial Court is a possible view, structured in evidence available on 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, impugned view is found on fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled.

16.       This Criminal Acquittal Appeal is without merit and the same is dismissed. These are the reasons of my short order announced on27th August 2019.          

                                   

                                                                                                J U D G E

                                                                            JUDGE

Irfan/PA