Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S – 137 of 2019
Date of hearing : 22.11.2019.
Mr. Muhammad Imran
Khan, Advocate for appellant / complainant.
Mr. Shafi Muhammad
Mahar, Deputy Prosecutor General.
J U D G M E N T
NAIMATULLAH PHULPOTO, J.– Respondents (1) Abdul Hakeem son of Murad
Ali, (2) Aashique son of Murad Ali (3) Kamal @ Hajan son of Faqeer Muhammad,
(4) Ghulam Rasool son of Faqeer Muhammad, (5) Akram @ Akri son of Faqeer Muhammad
were tried by learned Additional Sessions Judge Moro in Sessions Case No.08/2017
(The State v. Abdul Hakeem and others) for offences under Sections 395, 506/2,
337‑A(i), F(i), L(ii), 337-H(ii), 147,148,149 PPC. After regular trial,
respondents No.1 to 5 have been acquitted by the trial Court vide judgment
dated 19.07.2019, for the following reasons:
“7. Having considered the evidence led by the aforesaid
witnesses as well as contradictions and admissions of the witnesses, it is
pertinent to mention here that the medical medical officer in his medical
certificate has opined the injury No.1 as Shujjah-i-Khalifa, Injury No.2,
3 & 4 as 337L(II). Injury No.5,6,7,8 &
9 as Jurh Gyair Jaifah Damiah which are non cognizable while injury 10
was' kept under observation for expert dental opinion and after receiving the
report from dental surgeon the M.O opined that as per report of dental surgeon
he is of the opinion that, "43
canine and 1st pre-molar maxillary right side teeth are chronic
diseased noted”,
meaning thereby that the complainant was suffering from such chronic disease.
It is worthwhile to mention herein that though the complainant challenged the
final medical certificate before the medical board but such result of medical
board did not come on record so in these circumstances it is to be presumed
that sanctity of final MLC whether the same was redundant or remain intact,
thus, in absence of finding of board it can easily be presumed that final
medical certificate which issued by M.O is in operation and it is abundant
clear that from the evidence of prosecution witnesses that both parties are on
dispute over the landed property though the complainant himself has admitted
that his dispute over landed property is going on with the accused persons and
complainant during his cross examination had admitted that one of the accused
Abdul Hakeem Leghari had also moved an application to the DSP against him
regarding his illegal occupation over the land and such aspects of the case
also makes the case of prosecution not free from doubt. There is also another
aspect of the case that the PWs Irshad Ali and Riaz Ali were present at the
time of incident and in their presence accused persons caused butt, danda and
hatchet blows to the complainant and PW Irshad Ali by leaving
the complainant at his own mercy
went away to his house whereas the evidence of author of FIR HC Muhammad Waris Dahar shows that
complainant came alone at P.S and complaint himself disclosed that he along-with passerby person went to
P.S for obtaining the letter for
treatment and also went to Taluka Hospital Moro by likewise person meaning thereby the presence of
PWs Irchard Ali and Riaz Ali at the
scene of offence becomes doubtful
as PW Riaz stated in his cross examination that he brought the complainant at
P.S wherefrom they obtained letter but complainant during his cross examination stated that he went along
with passerby person to P.S for
obtaining the letter for treatment and passerby persons had brought him
at hospital but at any juncture the
complainant did not name the witness
Riaz who was accompanied with him during course of taking letter and
bringing him at hospital, thus, either
complainant is telling lie or PWs are indulged in miss-concealment of facts, therefore, it is crystal
clear that the case of prosecution suffers from reasonable doubts and flaws which has created sufficient
doubt regarding the alleged incident
and even the availability of the witnesses at the place of incident. It is settled principle of law
that onus of proving the charge is always lies upon the prosecution but from
the perusal of evidence of material PWs it appears that same is not
satisfactory evidences, hence these deficiencies in the case of prosecution are
so grave that the essentials of sections mentioned in the charge could not be
stretched in the circumstances of the case and the whole case of prosecution
suffer from reasonable doubt, so keeping in view the evidence recorded by the
prosecution side, the reservation of the accused regarding their false
implication could not be ruled out and it is also come on record that
complainant and accused party have property dispute with each other and accused
Abdul Hakeem during his statement U/s 342 Cr.P.C has brought on record the document which manifests the
dispute between parties over the landed
property, hence, in these circumstances and in view of the aforesaid reasons, I
am of humble view that no satisfactory/tangible evidence came on record which connects the above named accused with
the alleged charge. In reported cases
of Honorable Apex Courts viz. 1995 SCMR 1345 and 1996 P.Cr.L.J 181, it
is held that for giving benefit of doubt
to an accused it is not
necessary that there should be many circumstances creating doubt. If a
simple fact creates doubt in prudent
mind regarding the guilt of
accused, then he is entitled to such benefit, not as a
matter of grace and concession but a matter of right so in view of the
facts and circumstances mentioned above the case of prosecution became
doubtful against the accused and the accused persons are entitled for the
benefit of doubt. Hence I have left
no option but to reply this point as doubtful with the above mentioned reasons,
so for what have been discussed above, I am of humble view that prosecution has failed to bring home the
guilt of above named present accused, hence point No.1 is answered as doubtful/
not proved.”
Point No.2
Keeping in view the reasons discussed in point No.1, I have come to the conclusion that
prosecution has failed to prove the case/charge against the above named present
accused beyond the shadow of reasonable doubt, hence no other option available except to acquit the present
accused. Therefore, I am extending the benefit
of doubt to the Abdul Hakeem S/O Murad Ali Leghari, Ashique S/o Murad Ali
Leghari, Kamal @ Hajan S/O Fakir Muhammad Leghari, Ghulam Rasool S/O Fakir
Muhamad Leghari & Akram @ Akri S/O Fakir Muhammad and acquit them under section 265-H (i) Cr.P.C from the charge
leveled against them by the prosecution.
Accused Abdul Hakeem S/o Murad Ali Leghari, Ashique S/o Murad Ali Leghari. Kamal @ Hajan S/o
Fakir Muhammad Leghari, Ghulam Rasool S/o Fakir Muhammad Leghari are present on bail their bail bonds stand cancelled and sureties are
discharged while accused Akram @ Akri is produced in custody; let his acquittal intimation be sent to concerned
jail to release him forthwith if he is no more required in any other
custody case of any other Court of law. While accused Khadim Hussain is absconder and his case is kept on
dornant file till his arrest or
otherwise.”
2. Mr.
Muhammad Imran Khan, learned advocate for the appellant argued that there were
minor contradictions in the evidence of the prosecution witnesses and trial
Court failed to appreciate the evidence according to the settled principles of
law. It is further stated that delay in lodging of the FIR had also been
explained and prayed for converting the acquittal to the conviction.
3. Mr. Shafi Muhammad Mahar, Deputy Prosecutor General
supported the judgment of the trial Court. He has argued that there was
inordinate delay of 11 days in lodging of the FIR and there are major
contradictions in the evidence of the prosecution witnesses and trial Court has
rightly recorded the acquittal in favour of the respondents and after acquittal
they have double presumption of the innocence. He prayed for dismissal of this
acquittal appeal.
4. After
hearing the learned counsel for the parties, I have perused the evidence
available on the record. Learned trial Court, in the impugned judgment has
highlighted the infirmities in the prosecution case. Trial Court has held that presence
of PWs Irshad Ali and Riaz Ali at the time of incident was doubtful and the
prosecution could not establish their presence at the time of incident. There
was inordinate delay in lodging of the FIR for which no plausible explanation
has been furnished. Material contradictions in the evidence of prosecution
witnesses have been highlighted by the trial Court in the impugned judgment.
Counsel for the appellant could not satisfy the Court that judgment of the
trial Court is perverse or arbitrary. At the trial, prosecution could not
succeed to prove it’s case. It is by now well-settled that scope of the
acquittal appeal is quite narrow and limited. While hearing the acquittal
appeal, this Court is not supposed to re-appreciate the evidence, but only Court
has to see whether judgment of the acquittal is perverse or arbitrary. In this
case, impugned judgment is based upon the sound reasons and requires no
interference. Rightly, reliance is placed upon the case of Zulfiqar Ali v.
Imtiaz and others (2019 SCMR 1315), wherein Hon’ble
Supreme Court 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. ”
5. For the above stated reasons, this Acquittal Appeal is
without merit and the same is dismissed.
J
U D G E
Irfan/PA.