Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. D –30 of 2013
Cr. Acq. Appeal No. D –33 of 2018
Date of hearing : 12.11.2019.
Mr.
Ubedullah Ghoto, Advocate for the appellant / complainant.
Mr.
Aftab Ahmed Shar, Additional Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J.–Through these Acquittal Appeals, appellant Sadique
Ali Shah son of Fateh Ali Shah brother /legal heir of deceased Syed Mazher Ali
Shah has impugned the judgment dated 26.02.2013 passed by learned Additional
Sessions Judge, Ubauro in Sessions case No. 395 of 2004 for offences under sections
302, 324, 34 and 295-B PPC, Crime No. 224/2004 of Police Station Daharki whereby
respondent / accused Abdul Qayoom alias Chingoo was acquitted by the trial
Court, whereas case of absconding
accused namely: Abdul Shakoor and Abdul Malik alias Kako was kept on dormant
file. After acquittal of Abdul Qayoom, absconding accused surrendered before the
trial Court and faced trial in the aforesaid crime and after regular trial in
Sessions case No.395/2004 vide Judgment 25.01.2018 respondents /accused Abdul
Sahkoor and Abdul Malik alias Kako were also acquitted by learned Additional
Sessions Judge-II Ghotki. The legal heir of deceased Syed Mazher Ali Shah
namely Syed Sadique Ali shah has also filed another appeal against acquittal
Appeal No. D-33 of 2018 dated 22.02.2018 after acquittal of the respondents
/accused Abdul Shakoor and Abdul Malik alias Kako. By this single Judgment, we
intend to decide aforesaid appeals against acquittal.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are that complainant Abdul Wahid son of Abdul Aziz bycaste Dahar came at police
station Daharki and lodged FIR, wherein he alleged that about 03 years back one
Abdul Jabbar son of Abdul Khalique Dahar was murdered and in revenge of that murder
one Abdul Rehman son of Abdul Qadir was killed by Abdul Khalique and others, in
that case said Abdul Khalique and others were challaned, due to that Abdul
Shakoor and others were annoyed with complainant party and used to say them
that as to why they are looking after and cultivating their lands and helping
them in such case. On the fateful day, he along with his brother Wazeer Ali
aged 55 years, Syed Mazher Ali Shah son of Syed Abdul Fateh Shah aged about 32
years, Hafiz Abdul Hafeez son of Ghulam Muhammad Banglani aged 42 years, Syed
Fateh Ali son of Ibraheem Ali Shah, Ghulam Hussain Shah son of Syed Kabir Shah
and Muhammad Ibraheem Arbi son of Dhani Bux Dahar after offering the prayer of
“Taravih” were coming outside of Masjid, while electric bulbs and tube lights
were on. It was about 2030 hours, they found accused 1) Abdul Shakoor, 2) Abdul
Malik alias Kako both sons of Haji Abdul Qadir Dahar and 3) Abdul Qayoom alias
Chingoo son of Abdul Fattah Dahar, armed with klashanikovs who are brothers and
nephew of DSP Abdul Ghaffar Dahar, came there from their house situated
adjacent to Masjid and made their entry in the Masjid. They while coming made
straight fires upon complainant party with intention to kill them. In FIR
complainant further alleged that fires made by accused Abdul Shakoor hit his
brother Wazir Ali, the fires made by accused Abdul Malik hit Mazher Ali Shah and the fires made by Abdul
Qayoom hit Hafiz Abdul Hafeez Banglani, who raised cries and fallen in the
Masjid. Thereafter all accused made their escape good. He further alleged that
they saw his brother Wazeer Ali had sustained fire arm injuries on his waist,
abdomen, chest, left shoulder and right arm whereas deceased Mazher Ali had
sustained fire arm injuries on his both arms, back, left axilla and right hand
toe, the blood was oozing from their injuries and they had died at the spot they
also saw injured Hafiz Abdul Hafiz had sustained fire arm injury on his
forehead and finger of left hand and from the injuries blood was oozing.
Thereafter, he got removed injured Hafiz Abdul Hafiz Banglani to Taluka
Hospital Daharki, for his immediate treatment and leaving P.Ws at dead body,
went to police station Daharki where he lodged FIR.
3. On the conclusion of the investigation,
challan was submitted against all accused showing them absconders and after
completing codal formalities they were declared Proclaimed Offenders.
Thereafter one of the absconding accused namely Abdul Qayoom was arrested and
was sent up to stand trial.
4. Trial Court framed the charge against arrested
accused Abdul Qayoom at Exh.5 he pleaded not guilty and claimed to be tried. At
the trial, prosecution examined six (06) PWs and prosecution side was closed.
5. Statement of accused Abdul Qayoom was
recorded under Section 342, Cr. P.C in which accused claimed false implication
in this case and denied the prosecution’s allegation. He did not examine himself
on oath nor produced any witness in his defense.
6. Learned trial Court after hearing
learned counsel for the parties and assessment of the evidence, by assigning
sound reasons, acquitted the accused Abdul Qayoom vide judgment dated 26.02.2013,
for the following reasons.
“ The most important
witness complainant Abdul Wahid alleged in FIR that on the night of incident,
they found accused complainant Abdul Shakoor made fire with KK which hit his
brother Wazir Ali, the fires made by accused Abdul Malik hit Mazhar Ali Shah
and fires made by accused Abdul Qayoom
hit Hafiz Abdul Hafeez Banglani, who raised cries and fallen in the Masjid.
Thereafter, all the accused made their
escape good, but at the time off recording evidence he deposed that accused
Abdul Shakoor, Abdul Malik and Abdul Qayoom came in to Masjid and they were
armed with Kalashnikovs. They on coming in the Masjid started firing with
Kalashnikovs. Abdul Shakoor fired at Hafizullah Banglani and fires of accused
Abdul Malik hit Mazhar Ali Shah, after firing they run away. He himself belied
his own version as given in FIR so also the version of other eye witnesses. He
further deposed that he has compromised with the accused regarding with murder
of Wazir Ali as such he did not intend to proceed with the case against accused
Abdul Shakoor. Both eye witnesses have supported their earlier statements as
given before police, but complainant and injured eye witness have given their
different version, as the injured witness Hafiz Hafizullah deposed that about
2/3 years back this incident had taken place he was taken away in village Hafiz
Suleman for reciting Holy Quran and Taravih Nimaz at that village due to
Ramzan. According to him it was about 8-30 pm, he alongwith Wazir Ahmed, Mazhar
Ali Shah were sitting in the Masjid and at that time electricity had gone and
they were going to disperse, at that time three persons came and started firing
at them. The testimony of both eye witnesses, Complainant and injured witness
is not considered to be safe enough to record conviction and as such, they
cannot be held to be trust worthy to convict the present accused solely on
their evidence, as the ocular evidence
is pregnant with doubts settled
principles laid down by the Honourable apex court has respectfully held
in case of Badshah Rehman alias Badshah vs. The State and another reported in
2011 P.Cr.L.J 113 by Honourable Pishawar High Court in plasitum ‘F’. It is also established principle of criminal
jurisprudence that single infirmity,creating reasonable doubt in prudent mind
is sufficient for giving benefit or doubt to accused. Wisdom in this regard has
been sought from the case of Riaz Maseeh alias Mithu v. the State 1995 SCMR
1730, Saeedullah v. Shah Nazar and others 2001 P.Cr.L.J. 1740 and Jan Alam v.
the state and another 2004 P.Cr.L.J. 68."
It
has been held by Honourable Lahore High Court in case of Abdul Rehman alias
Gagi and 2 others vs. the state reported in P.L.D 2011 Lahore 92, that
"Prosecution had to prove its case beyond any shadow of doubt; and if any
doubt would arise in the circumstances of the case, its benefit would have to
go to accused. Prosecution case being full of doubts, accused were entitled to the
benefit of the same not as a matter of grace, but as a matter of right."
Another
most important factor in this case is circumstantial evidence which is produced
through Investigating officer SIP Nadir Ali Bhatti (Exh.22), who on 19.10.2004 after receipt of
FIR bearing crime No.224/2004 offences u/s 302, 324 PPC conducted
investigation. According to him, he visited the place of wardat where he saw
dead bodies of Mazhar Ali Shah and Wazir Ali Dahar, and from the place of
occurrence he secured blood stained earth, Sindi cap, one Towel and seven
empties of 7.62 bore lying at some distance from dead body of Mazhar Ali Shah.
He also secured blood stained earth and nine empty bullets of 7.62 bore at some
paces from the dead body of deceased Wazir Ali. According to him at same
distance he saw blood lying on the earth, he collected blood and three empty
cartridges from that place and prepared in quest report of both deceased
persons, then he handed over dead bodies
to his poliçe staff for conducting post mortem, therefore, on pointation of
complainant, he saw marks of bullets
available inside the Masjid, on walls as well as frame of
"Sura-ul-Asir" and surat-ul-Qadir" and on cupboard in which
"Holy Quran" was lying. He also secured four empty bullets lying
scattered in the Masjid. He prepared such Mashirnama in presence of Zainul
Abidin Shah and Jalal din Shah and then went to Taluka Hospital Daharki where
he noted injuries of injured Hafiz Abdul Hafeez Banglani in presence of mashirs
Shabir Ali Dahar and Mihar Ali Dahar and prepared such mashirnama, which he
produced at Exh.22/A, then they came back at police station. On 20.10.2004 HC
Muhammad Punhal brought clothes of deceased Mazher Ali Shah regarding hand over
dead body to Fateh Ali Shah, he prepared such mashirnama in presence of same
Mashirs, which was produced at Exh.22/B and PC Abdul Qadir brought clothes of
deceased Wazir Ali Dahar and receipt regarding handover dead body to Abdul
Wahid. He secured the same and prepared such mashrinama in presence of Mashirs,
which was produced at Exh.22/C, thereafter, he handed over case papers to SIO
Ali Hyder Rind for further investigation. In its corroboration prosecution has
only led evidence of Mashir Jalaluddin Shah (Ex.20) who only supported the
Mashrinama of place of wardat (Ex.22/A) and another Mashir is HC Muhammad
Punhal Abbassi, (Ex. 12) who corroborated the version of I/O regarding
production of last worn clothes of deceased Mazher ali Shah (Ex.12.B) and
handing over dead body of deceased Mazher Ali Shah. The prosecution has not
examined PC Abdul Qadir, who produced last worn clothes of deceased Wazir Ali
Dahar, and mashirs Shabir Ali Dahar or Mihar Ali Dahar, to substantiate that
Investigation Officer had actually noted injuries of injured Hafiz Abdul Hafeez
Banglani and drawn such Mashirnama (Ex.22/A) or not, these Mashirs are not
examined by the prosecution only on the fact that when injured himself has not
supported the prosecution, then their examination is not necessary. Thus these
laps on account of circumstantial evidence rendered the prosecution case highly
doubtful. The accused in his statement recorded U/S 342 Cr.P.C has denied the
allegations. In view of above circumstances the recovery of articles from place
of incident were got attested through Jalaluddin Shah who is relative of
deceased Syed Mazher Ali Shah is one of the interested witness.
Nothwithstanding that the property so recovered from the place of incident was
not got attested through an independent Mashir despite of admitted presence at
scene of occurrence, therefore, I am of the humble view that the circumstantial
evidence so collected by I/O is neither believeable nor trust worthy but
entirely doubtful. It is a settled law that “ single infirmity if create
reasonable doubt in the mind of a reasonable prudent person regarding the truth
of charge would make whole case doubtful. Accused being most favourable child
of law and every benefit of doubt would go to him regardless of fact whether he
had taken such plea or not”. Reliance can be placed on 2002 P.Cr.L.J (Karachi)
450, 2002 PCr.L.J (Karahci 51 and 2012 Y.L.R 2026 Sindh. It is held by
Honourable apex Court in case of Muhammad Akram v. The State reported in 2009
SCMR 230 that “--- Benefit of doubt---Principles—For giving the benefit of
doubt it is not necessary that there should be many circumstances creating
doubt-----single circumstance creating reasonable doubt in a prudent mind about
the guilt of the accused makes him entitled to its benefit, not as a matter of
grace and concession, but as a matter of right.”.
For the aforesaid reasons, circumstances
and in view of case laws referred above, I am of the considered opinion that
prosecution has miserably failed to prove the case against the present accused
Abdul Qayoom beyond any shadow reasonable doubt and the contradictory evidence
of I/O and Mashirs inspiring no confidence, therefore, I answer the point No.2
& 3 as doubtful.”
7. After acquittal of accused Abdul
Qayoom, absconding accused Abdul Shakoor and Abdul Malik surrendered themselves
before trial Court. Trial Court framed charge against both accused in Sessions Case No.395 of 2004 at Exh.32.
They pleaded not guilty and claimed to be tried. At the trial, prosecution
examined ten (10) P.Ws and thereafter side of prosecution was closed.
8. Statements
of accused Abdul Sahkoor and Abdul Malik alias Kako were recorded U/S 342
Cr.P.C, in which accused claimed false implication in this case and denied the prosecution’s
allegations. They did not examine themselves on oath nor led any evidence in
defense.
9 . Learned
trial Court after hearing learned counsel for the parties and assessment of the
evidence vide Judgment dated 25.01.2018 acquitted accused Abdul Shakoor and
Abdul Malik alias Kako for the following reasons.
“
Complainant Abdul Wahid deposed that about 11 years back at about 0830 pm, he,
his brother Wazir Ahmed, Syed Mazhar Ali Shah, Haliz Habibullah Banglani having
offered Isha prayer, they came out from the Masjid, three unidentified culprits
did straight fires upon the persons, who were coming out from Masjid. At that
time he was inside the Masjid. The above named persons left the Masjid. On
firing he came out from Masjid and saw his brother Wazir Ahmed and Syed Mazhar
Ali Shah were murdered and Hafiz Hafeezullah Banglani was lying in injured
condition. Hafiz Hafizullah Banglani has not disclosed the name of any person,
therefore, he went at P.S. and lodged FIR against Abdul Shakoor, Abdul Malik
and others. He deposed that accused present in Court were not same. In
cross-examination he deposed that he had not identified accused present in
court at the time of incident but Hafiz Hafeezullah Banglani disclosed their
names and on his instance he had given the names of accused in FIR.
PW
Hafiz Hafizullah has deposed that on 19.10.2004 at 8:30 pm he alongwith Jamait
coming out from Masjid, meanwhile three persons, their faces were muffled came
at the outer door of Masjid, they all armed with KKs shots fired upon him,
Mazhar Ali Shah and Wazir Khan, again deposed that prior to them the Jamait
left the Masjid and when he, Wazir and Mazhar Shah were coming out from Masjid,
three persons were standing outer door of the Masjid, he could not identify the
persons who fire shot with their KKs upon them. Due to such incident he had
sustained fire arm injuries on forehead and left arm and he fell down and
became unconscious. Wazir Ahmed and Mazhar Shah also sustained fire arm
injuries and they also fell down. He went unconscious. The villagers brought
him in the Hospital as in door patient after passing 5/6 days he came into
senses. After 15/20 days doctors discharged him from Hospital. Police not
recorded his statement u/s 161 Cr.P.C neither he further know about this case.
He has not implicated the accused present in the Court.
PW Ghulam
Hussain Shah has deposed that on 19.10.2004 at 0830 . pm, in his presence
accused Abdul Shakoor, Abdul Malik and Abdul Qayoom all armed with KKs came and
started firing at them, fire of Abdul Shakoor hit to Wazir Ali, fire of Abdul
Malik hit to Mazhar Ali and fire of Abdul Qayoom hit to Hafeezullah, they all
fallen down, while accused after firing went away. Then they saw injured
persons received multiple injuries on their bodies which are mentioned in the
Mashirnama of injuries. They have been died. Hafeezullah sustained injuries and
was lying injured. Complainant taken away injured to Daharki Hospital and
lodged such FIR against the accused. They were made to sit near dead body.
Police recorded his statement. He implicated the accused present in Court.
So
far as, the circumstantial evidence is concerned perusal of record reflects
that statement of ASI Khair Muhammad recorded at Exh.46 according to him PW
Muhammad lbrahim alias Arbi has expired before recording his evidence, said ASI
also stated that he came to know that Inspector Ali Hyder Rind expired due to
his natural death.
Tapedar
Ghulam Fareed examined who testified that he went at place of wardat and
prepared such map which was produced in evidence as Exh.19-A.
ASI
Nadir Ali in his evidence supported entire investigation conducted by him,
regarding the visiting the place of incident, seeing dead bodies, securing
blood stained earth, Sindhi cap. one towel and seven empty bullets of 7.62 bore
and nine empty bullets lying beside the dead body of deceased Wazir Ali,
secured three empty cartridges, prepared inquest report of both deceased
persons, dispatched dead bodies to Hospital for their postmortem reports, he
also saw marks of bullets inside the Masjid on walls, as well as on frame of
Surat-ul-Asir and Surat-ul- Qadir and on cupboard in which Holy Quran was
lying, he also secured four empty bullets from Masjid then he prepared such
Mashirnama in presence of Mashirs namely Zaul Abidin Shah and Jallal Din Shah,
which he saw Exh.20-A. He further deposed that thereafter, they returned back
and went to Taluka Hospital Daharki, where he noted the injuries of injured
Hafiz Hafeezullah Banglani in presence of Mashirs Shabir Ali and Mihar Ali Dahar,
prepared it, which he saw as Exh.22-A. He further deposed that on 20.10.2004 he
was available at P.S. Daharki where HC Muhammad Punhal brought the clothes of
dead body of deceased Mazher Ali Shah and receipt regarding handing over dead
body to Fateh Ali Shah. Thereafter, he prepared such Mashirnama in presence
Mashirs, which he produced it as Exh.22-B. He further deposed that on the same
day PC Abdul Qadir brought dead body of deceased wazir Ali and receipt
regarding the handing over dead body to Abdul Wahid, he secured the same and
prepared such Mashirnama in presence of same Mashirs. He saw Exh.22-C, he then
handed over the case papers to SIO Ali Hyder Rind. The evidence of I.O
supported by Mashir of place of wardal Syed Jalal Din Shah, according to him,
Danishtnama of both the dead bodies were also prepared in their presence, which
he saw Exhs.20-A to 20-C and deposed to be same so also attested by him and
co-Mashir.
Perusal
of record reveals that SIP Gul Muhammad Bozdar, reportedly died, due to his
natural death as per statement of process server HC Husain Bux Exh.51 dated
31.10.2017. Scarp bearer PC Abdul Qadir, examined, according to him, he after
having conducting postmortem of deceased Wazir Ali handing over its dead body
to Abdul Wahid complainant and obtained such receipt from him, already produced
on record as Exh.21-A.
ASI
Manzoor Ahmed being well conversant with the signature and handwriting of late
SIP Gul Muhammad Bozdar as Exh.52, he saw FIR as Exh.9/A according to him, same
is in the handwriting of SIP Gul Muhammad Bozdar and bearing signature of that
SIP. ASI Manzoor Ahmed also examined being well conversant with the signature
and handwriting of late SIO/Inspector Ali Hyder Rind, he saw 161 Cr.P.C
statements of PWs u/s 161 Cr.P.C as Exhs.24/B to D.
I
have carefully considered the arguments advanced before me and perused the
entire evidence available on record. Since the complainant in his IR stated
regarding murder of his deceased brother Wazir Ali, deceased Mazhar Ali Shah
and regarding injuries on the person of injured Hafiz Abdul Hafeez. lt is
clearly slated by complainant in his evidence that on the night of incident his
brother Wazir Ahmed, Syed Mazher Ali Shah, Hafiz Hafeezullah Banglani offered
Isha prayer and when they came out from the Masjid, three unidentified culprits
did straight fires upon the persons, who were coming out from Masjid. At that
time he was inside the Masjid. The culprits left the Masjid. On firing he came out from Masjid and saw his
brother Wazeer Ahmed and Syed Mazhar Ali Shah were murdered and Hafiz
Hafeezullah Banglani as lying in injured condition. According to him, Hafiz
Hafizullah Banglani did not disclose the name of any person, therefore, he went
at P.S. and lodged FIR against Abdul. Shakoor, Abdul Malik and others. He
deposed that accused present in court were not same. Moreover, in
cross-examination he further deposed that he had not identified accused present
in court at the time of incident but Hafiz Hafeezullah Banglani disclosed their
names and on his instance he had given the names of accused in FIR. PW Hafiz
Hafizullah Banglani has supported the version of complainant and clearly stated
that he went unconscious. The villagers brought him in the hospital as in door
patient after passing 5/6 days he came into senses. After 15/20 days doctors
discharged him from hospital. Police not recorded his statement u/s 161 Cr.P.C
neither he further know about this case. He has not implicated the accused
present in Court. Both these star witnesses have been declared hostile by
learned state counsel and cross-examined but nothing favourable to the
prosecution came on record. They did not connect the present accused with the
alleged murder of two deceased persons and causing injuries to injured witness
Hafiz Hafizullah Banglani.
There
appears sole evidence of one witness Ghulam Hussain Shah, according to him, he
witnessed the incident and corroborated with his statement before police, but
his evidence is not shatter with the ocular account as advanced by complainant
and injured witness, rather resiled their earlier statements recorded before
police. Moreover, no incriminated articles have been recovered from the
possession of accused. The circumstantial evidence as discussed above inspiring
no confidence. In the circumstances, discussed above, I am of the considered
view that the prosecution has failed to prove it's case against present accused
beyond any reasonable shadow of doubt and it is well settled proposition of law
that for giving benefit of doubt to an accused it is not necessary that there
should be many circumstances creating doubt. If a simple circumstance creates
reasonable doubt in a prudent mind about the guilt of accused, then he will be
entitled to such benefit not as a matter of grace and concession but as a matter
of right. This dictum is laid down in the case of Tariq Pervez vs. The State (1995 SCMR 1345). Hence point under
discussed is answered not proved as "DOUBTFUL".
10.
Mr. Ubedullah Ghoto
learned advocate for appellant mainly contended that eye witnesses namely Syed
Fateh Ali Shah and Syed Ghulam Hussain Shah had deposed against the respondents
and their evidence is corroborated by medical evidence despite that trial Court
without appreciating the evidence in its prospective recorded acquittal. It is submitted
that acquittal recorded by the trial Court was not legally justified and the
impugned judgments are perverse and require interference of this Court. In
support of he has relied upon the cases of Nazir Muhammad v. The State and another
(2004 P.Cr.L.J 1684), Muhammad Akram vs. The State (2006 SCMR 1567), Sher
Muhammad alias Shera vs. The State (PLJ 1997 Cr.C [Quetta] 102), Khalil Ahmed
and others vs. The State (2012 P.Cr.L.J 1308), The State through Mehmood Ahmed Butt
vs. Sharafuddin Sheikh and another (2013 SCMR 565), Allahdino and 2 others vs.
The State (2018 P.Cr.L.J 200), Syed Tahir Shah and others vs. The State (2018
P.Cr.L.J 242), Muhammad Siddique vs. The
State (2018 SCMR 71).
11. Mr.
Aftab Ahmed Shar, Additional Prosecutor General argued that complainant Abdul
Wahid and injured /PW Hafizullah have not supported the case of prosecution and
stated that some unknown assailants had fired upon deceased persons. He further
argued that injured Hafizullah has also deposed that light was off at the time
of incident and Additional P.G thus supported the judgment of the trial Court
which are based upon proper appreciation of the evidence and the same are
according to settled principles of law.
12. It
is 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. ”
13. 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.”
14. We
have carefully heard learned counsel for the parties and perused the impugned
Judgments. The evidence of complainant Abdul Wahid and PW/injured Hafizullah is
most relevant for just decision of the case. In the second trial Injured PW
Hafizullah (P.W 5) has deposed that present incident took place at about 08.30
pm, at that time he along with Wazeer Ahmed, Mazher Ali were sitting in the
mosque, at that time electricity was off, thereafter, firing started he went
unconscious. He did not know anything of the matter that who had fired and he
has not supported the case of prosecution. Evidence of complainant was also
recorded during second trial, he has also not supported the case of
prosecution. So far other eye witness namely Ghulam Hussain Shah is concerned, his
presence in the mosque at the time of incident was doubtful for the reason that
there was indiscriminate firing and empties have been secured from the place of
vardat. Complainant did not receive any scratch which clearly shows that he was
not present at the place of vardat. Trial Courts in the impugned judgments has
assigned sound reasons for disbelieving the prosecution evidence. We have come
to the conclusion that prosecution failed to prove its case and Judgments of
the trial Courts are neither perverse nor arbitrary and the same require no interference
of this Court. View taken by the learned trial Courts 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.
15. This Criminal Acquittal Appeals are
without merit and the same are dismissed.
J U D G E
J U D G E
Irfan/PA