Judgment Sheet.

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D-150 of 2019

Date of hearing : 07.11.2019.

Mr. Ghulam Murtaza Korai, Advocate for Appellant.

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

-.-.-.

J U D G M E N T

Naimatullah Phulpoto, J. Through this Acquittal Appeal, appellant / complainant Nisar Ahmed son of Haji Abdul Sattar has impugned the judgment dated 23.08.2019 passed by learned 1^st Additional Sessions Judge / Model Criminal Trial Court, Sukkur in sessions case No. 337/2016 for offences under sections 302, 324, 34 PPC. On the conclusion of trial vide judgment dated 23.08.2019 respondent/accused Mujahid Hussain Shah was acquitted of the charges.

2.                     Brief facts of the prosecution case as reflected in the impugned Judgment are that on 03.11.2015 at 1830 hours complainant Nisar Ahmed lodged FIR alleging that Haji Abdul Sattar aged about 50/51 years was his father. Prior to this incident, a girl who was relative of Syed Mujahid Hussian Shah, had contracted love marriage with a boy of Shambani community. Accused Mujahid Hussain Shah was pressurizing the father of complainant for return of said girl but his father had refused, on which accused annoyed upon father of complainant and used to say that he will see them. On 28.10.2015 complainant along with his father Haji Abdul Sattar, relative Haji Rehmatullah had gone to RD-186 stop. After completing their work while they were returning towards their village on their motorcycle which was driven by his father and when at about 5.00 pm, crossed the house of Mujeeb Shambani, where two 125-motorcycles crossed them and two persons were sitting on each motorcycle, and came infront of complainant party and stopped their motorcycle. Complainant party stopped their motorcycle and alighted from it. Two culprits also alighted from their 125 motorcycles. Complainant party identified them as Syed Mujahid Hussain shah, Abbass Shah and two other culprits turned down their motorcycles. Then accused Mujahid Hussain Shah and Abbass Shah took out pistols from the fold of their shalwar and pointed upon the father of complainant and told him that he has not returned their girl, therefore, they will kill him. Thereafter, both the accused made straight firing upon the father of complainant, which hit him who raised cries and fell down. Then both accused ran away on their motorcycles towards eastern side. Thereafter complainant saw that his father received fire arm injuries on right side of his shoulder, chest, left side of shoulder, left arm and injuries were bleeding. Then complainant brought the injured at Police Station, obtained letter for treatment and went to hospital at Rohri and then went to Police station Salehpat and lodged FIR vide crime No. 114/2015 under sections 324, 34 PPC.

3. On the conclusion of the investigation, challan was submitted against the accused Mujahid Hussain Shah under sections 324, 34 PPC while accused Abass Shah was shown absconder. He was declared Proclaimed Offender.

4. Trial Court framed the charge against accused for offence under sections 302, 324 PPC. He pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined eleven (11) PWs and prosecution side was closed.

6. Statements of accused 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.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence, by assigning sound reasons in point No.2 of the impugned judgment, acquitted the accused vide judgment dated 23.08.2019, for the following reasons.

“ POINT NO. 2. 

In the instant case, the prosecution possessed evidence of two eye witnesses to establish the ocular account i.e. Complainant Nisar Ahmed, the son of deceased and PW Haji Rehmatullah. 

The first and foremost witness of the prosecution was complainant Nisar Ahmed, who is a son of deceased. He states that he and PW Haji Rehmatullah were accompanied by his deceased father at the time of incident. Two accused namely Abbas Shah (absconder) alongwith his father Mujahid Shah (in custody) alongwith two unknown accused had trapped them. Present accused Mujahid Shah and his Abbas Shah opened direct fires upon his deceased father Abdul Sattar, before their eyes and then drove away. The motive to commit such murder statedly was a girl of accused family was abducted by a caste fellow of deceased. The deceased was asked by accused to restore the hand of such girl, to which he failed to do so. The accused in such a grudge and ill intention had committed his murder. Two accused being a son and father are said to have opened direct fires upon the deceased in presence of complainant. The complainant who is a real son of deceased has not resisted to save the life of his old father.

WHEREAS PW-2 Haji Rehmatullah has deposed that two persons on one motorcycle being Syed Mujahid Hussain shah and his son Abbas Shah alongwith two unknown accused had come at spot. The present accused and his son Abbas Shah gave hakals to the deceased and then opened fires upon him. The careful perusal of above statement shows that PW Rehmatullah stated that after offering a Zuhr prayer they remained available in the mosque till 04:30 p.m. The complainant did not utter a single word for their presence in their mosque. Present eye witness claims the accused had extended Lalkara to the deceased, but this fact is also not disclosed by the complainant. The complainant and his witnesses did not receive a single scratch over their bodies. They even did not disclose to have attempted to resist the deceased, at the time of his murder. The silence of complainant and his relative witnesses creates doubt with regard their availability at the spot. The FIR was lodged with delay of about five days with no plausible explanation. The statement u/s 161 Cr.PC of PW Rehmatullah was recorded after a month of incident. The empty secured from the place of incident has not matched with the weapon allegedly recovered from present accused. Accused Mujahid Hussain has already been acquitted in a connected case u/s 23(1)(a) Sindh Arms Act, 2013, vides a Judgment dated 17.01.2018. The claim of learned counsel for accused appears to be a correct that accused was arrested under suspicion and was kept in custody but his arrest was disclosed subsequently when his father protested against his arrest and such protest was reported in the newspaper. The Newspaper daily Kawish dated 24.11.2015 bears such news, No single witness of the incident except the son and relative/friend of deceased are shown in the FIR. 

The evidence of police officials is a formal in nature no single material was collected by I.O to connect the accused with the crime, their evidence is thus of formal in nature. 

The evidence brought on record is full of clouds and doubts; it was upon the prosecution to produce the chain of evidence to connect the accused with the crime. The evidence so produced is not of a such caliber to be believed, it is not corroborated by independent piece of evidence. I am therefore, satisfied that the prosecution has miserably failed to establish the case against the present accused. Resultantly, the point under discussion is answered as doubtful.”

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

9. Learned advocate for the appellant/complainant mainly contended that as per findings of the trial Court, prosecution has failed to prove the unnatural death of the deceased, was erroneous and deceased had died because of the fire arm injuries. He has further submitted that trial Court has failed to appreciate the evidence according to the settled principles of law. It is further submitted that ocular evidence was corroborated by the medical evidence and it was fit case for conviction but trial Court did not read the evidence properly and prayed for converting acquittal order to the conviction.

10. Mr. Abdul Rehman Kolachi D.P.G supported the judgment of the trial Court and argued that there were number of infirmities in the prosecution case and respondent has rightly been acquitted by the trial Court. He further argued that trial Court has properly appreciated the evidence and acquittal of the accused / respondents is neither perverse nor based upon misreading of evidence. He has supported the judgment of the trial Court.

11. 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 the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

12. 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.”

13. We have examined the evidence of the prosecution witnesses on the touch stone of article 129 of Qanoon-e-Shahadat. Trial Court while discussing the point No.2 in the Judgment has mentioned that complainant and his witnesses did not receive single scratch at the time of incident. Complainant, who is son of the deceased remained calm and did not make effort to rescue the father and his conduct clearly shows that he was not present at the time of incident. It is quite surprising that the father of the complainant was murdered by the accused persons but complainant and his eye witness remained silent which is against the human conduct. The conduct of the complainant / son of deceased is to be judged at the touch stone of Article 129 of the Qanun-e-Shahadat Order, 1984, which is reproduced below:-

“129. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

14. 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.

15. This Criminal Acquittal Appeal is without merit and the same is dismissed. These are the reasons of our short order announced on 7^th November, 2019.

J U D G E

J U D G E

Irfan/PA