Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 64 of 2017

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Date of hearing : 27.08.2019.

Mr. Allah Bux Gabol, Advocate for the appellant / complainant.

Mr. Abdul Sattar G. Luhrani, Advocate for respondent / accused No. 2.

Syed Sardar Ali Shah, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Muhammad Bakhsh alias Bakhshal son of Muhammad Sharif Sahito has impugned the judgment dated 09.03.2017 passed by learned Additional Sessions Judge, Kandiaro in Session Case No. 65 of 2010 for offence under Section 302, PPC. On the conclusion of the trial, vide judgment dated 09.03.2017, accused / respondent No. 2 namely Khalid son of Ahmed Ali Sahito has been acquitted.

2. Brief facts of the prosecution case are that complainant Muhammad Bux alias Bakhshal Sahito lodged FIR alleging therein that on 04.02.2010 at 08:00 p.m. at shop of his son Zahid Hussain (now deceased) situated in Manjuth, Deh Manjuth, Taluka Kandiaro, accused Khalid, Ghulam Murtaza and an unknown accused with pistols appeared. It is alleged that respondent / accused Khalid was annoyed with deceased for Nikah with Mst. Basheeran. It is alleged that Khalid fired a pistol shot, hitting to his son Zahid Hussain on left side of his chest in presence of PWs Khuda Bux and Manzoor, who fell down. The accused then decamped. They raised cries which attracted PW Aziz and other co-villagers. The deceased died within their sight. He narrated the facts to the witnesses and lodged the FIR at P.S Tagar, District Naushahro Feroze. It was recorded vide Crime No.01/2010 for offences under Sections 302, 34, PPC on 04.02.2010 at 21:00 hours.

3. After usual investigation, challan was submitted against respondent / accused Khalid only under Sections 302, 34, PPC.

4. Trial Court framed the charge against accused Khalid at Ex.02. He pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined six (06) prosecution witnesses and prosecution side was closed.

6. Statements of accused Khalid was recorded under Section 342, Cr.P.C at Ex.12 in which accused claimed false implication in this case and denied the prosecution allegation.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 09.03.2017 acquitted the respondent / accused for the following reasons:

“ The accused is alleged to have become annoyed on the basis of solemnizing Nikah of Mst. Basheeran with deceased Zahid without either showing his affair with her before the Nikah or assigning any cogent reason in support of the same. There seems no logic of his becoming annoyed when the accused was already a married person having children and he is not alleged to be interested to contract second marriage with Mst. Basheeran who is shown major and minor by the prosecution witnesses, as such his alleged motive seems to be substanceless. The I.O has neither recorded the statement of Nikah Khawan to prove the alleged salinization of Nikah nor the prosecution has examined the same nor evidence of any independent person is produced to show the alleged motive of the accused but there are mere words of complainant party which are not sufficient to believe the same, I am therefore, of the view that the prosecution has miserably failed to prove the alleged motive of the accused.

The accused has been admittedly acquitted in off-shoot case of 13(e) A.O by the learned 3^rd Judicial Magistrate, Kandiaro vie judgment dated 19.8.2010 dis-believing the recovery of un-licensed pistol from his possession. This judgment seems to have attained its finality in view of non-challenging the same by the State. The recovery further seems to be doubtful in view of recovering the same in presence of interested closely related mashirs of the complainant without showing any plausible reason of non-associating any independent person with the same though police could easily do so in view of alleging the accused to have agreed to produce the same during interrogation. There was also possibility of foisting the same in view of its recovery on 19.2.2010 after six days of his arrest i.e. 13.2.2010 which fact has destroyed the whole structure of the prosecution case in view of considering the recovery to be corroborative piece of evidence.

The alleged eye-witnesses and mashirs are closely related to the complainant as such they seem to be highly interested persons, therefore, it shall not be safe to rely upon their testimonies when the complainant has failed to cite the name of any independent person despite gathering of number of co-villagers on the spot as per their versions as well as non-recording statements of such persons by the I.O when they do not seem to be a true witnesses in the light of making inconsistent statements and there is possibility of their being deposed falsely.

The police has also placed the name of accused Ghulam Murtaza in column 2 of challan after having found him as innocent while dis-believing his participation which fact has also damaged the case.

The complainant and P.Ws seem to have falsely claimed their presence on the spot in the light of non-receiving any sort of harm as well as non-disclosing the cause of their being spared by the accused who could though treat them in same manner when the deceased had not allegedly solemnized the Nikah on his own without consent of complainant/father of Zahid.

The complainant and P.Ws in F.I.R and 161 Cr.P.C statements have neither claimed the availability of Moon/Electric light nor they have claimed the accused previously known to them nor they have disclosed the source of being identified the nominated accused nor they have clarified as to how they identified the accused in dark hours, hence, there is strong possibility of mistaken identity of the accused in such circumstances.

Reverting to the evidence adduced by the prosecution I would like to re-produce the part of the evidence which has rendered the credibility of the witnesses doubtful in view of making their conflicting statements. The complainant has only shown appearance of accused Khalid at the spot without alleging him to be accompanied with co-accused Ghulam Murtaza and an unknown person as shown by him in the F.I.R, however, he has shown the appearance of three accused in cross-examination without mentioning the name of Ghulam Murtaza. The complainant and PW Aziz have deposed about the non-availability of light on account of load shedding which fact is falsified by the PW Manzoor while admitting availability of the light in view of non-load shedding. The complainant has deposed that there were only two shops adjacent to the shop of deceased in Manjuth while his this version is falsified by the PW Manzoor while claiming that there were number of shops adjacent to the said shop. The complainant and PW Manzoor have deposed about providing the first aid to deceased Zahid by Doctor Sohrab while the PW Aziz had neither stated so nor the M.O has confirmed the statements of complainant and P.W Manzoor made in this regard on the contrary he (M.O) has falsified their statements. The complainant and P.W Aziz have described Mst.Basheeran as major being 19 years old at the time of Nikah denying the suggestion of minor while their version is falsified by the PW Manzoor while deposing her age as 12 years at that time. The complainant and his witnesses have alleged the accused to have made one shot while Medical Officer has found the four injuries as a result of two shots. The complainant seems to be not a reliable person in view of his denying about filing of criminal misc. application No.200 of 2010 before Honourable Sessions Judge, Naushahro Feroze produced by the accused without claiming its filing by a fake person showing himself as Khuda Bux wherein he has specifically alleged the I.O to have not conducted the investigation honestly while showing the place of vardat in village Ghulam Muhammad Sahito instead of Manjuth which is 2 and half kilometer away from Manjuth and happening of the incident inside the shop of deceased.

The aforesaid discussed aspect of the case makes the prosecution case highly doubtful though the prosecution was supposed to bring strong, trustworthy, beyond reasonable doubt and credible evidence against the accused in order to obtain conviction on record. It is also settled principle of law that there should not be number of circumstances for extending benefit of doubt to accused who is entitled to be given the same in case of arising lightest doubt in respect of happening of the incident in a prudent mind.

In the light of foregoing discussion, I am of the humble view that the prosecution has failed to establish its case against the present accused beyond the shadow of doubt, hence, plea of accused regarding his innocence seems to be true. This point accordingly is answered as doubtful. ”

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

9. Learned counsel for appellant / complainant argued that there was strong ocular evidence against respondent / accused corroborated by medical evidence and recovery of crime weapon and empty. It is further argued that complainant who is father of deceased had no motive to falsely implicate the respondent / accused in the murder of his son. It is submitted that prosecution had proved motive against the respondent / accused at trial. Learned counsel for appellant / complainant argued that reasons assigned by trial Court for acquittal of respondent / accused were not cogent. Lastly, it is submitted that acquittal of respondent / accused may be converted to conviction. In support of contentions, reliance is placed upon the cases reported as Riaz Hussain v. The State (2001 SCMR 177), Fateh Muhammad v. Mehmood Khan and 3 others (1998 MLD 1107), The State v. Abdul Ghaffar (1996 SCMR 678), Amal Sherin and another v. The State through A.-G., N.‑W.F.P (PLD 2004 Supreme Court 371), The State v. Khan Muhammad alias Khanan and others (2005 P. Cr. L. J 8110), Muhammad Ilyas v. The State (PLD 2001 Supreme Court 333), Ghulam Abbas v. The State (2008 SCMR 1352) and Ihtshamuddin v. The State and others (2002 SCMR 269).

10. Mr. Sardar Ali Shah, learned DPG for the State argued that according to ocular evidence single fire was shot to the deceased but per medical evidence there were two fires. He further submitted that medical evidence was contradictory to the ocular evidence. He further submitted that PW Manzoor had deposed that electricity light was available while PW Abdul Aziz had contradicted him and deposed that electricity was not available at the time of incident. Learned DPG further submitted that respondent / accused was arrested on 13.02.2010 and after six (06) days, he produced crime weapon and according to DPG the learned trial Court has rightly disbelieved the recovery. DPG further argued that mashir had not seen the recovery of empty made by I.O from the place of occurrence. Learned DPG further submitted that according to medical evidence fire was made upon deceased from his side, whereas, ocular evidence reflects that injuries were sustained by the deceased from his front. Learned DPG lastly argued that trial Court has properly appreciated the evidence and by assigning sound reasons, acquitted the respondent / accused. Learned DPG has supported the impugned judgment and prayed for dismissal of Acquittal Appeal.

11. Mr. Abdul Sattar G. Luhrani, learned counsel for respondent / accused argued that prosecution case was highly doubtful and trial Court had rightly acquitted the respondent. It is further argued that at the time of recording statement under Section 342, Cr.P.C, the respondent / accused had produced a copy of an application under Section 22-A & B Cr.P.C, which shows that complainant had filed the same before the Court of learned Sessions Judge, Nauhahro Feroze in which he had mentioned that the incident took place in village, not at mobile shop of deceased. In support of his contentions, learned counsel for the respondent / accused has relied upon the case law reported as Muhammad Auchar v. Muhammad Sharif and 12 others (2017 P. Cr. L. J 163) and Mehro Khan v. Anwar and 2 others (2017 P. Cr. L. J 244).

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 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. ”

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. In the present case, presence of the eyewitnesses at mobile shop of deceased at 08:00 p.m. due to their unnatural human conduct has become highly doubtful, in view of the provisions of Article 129 of the Qanun-e-Shahadat Order, which is to the following effect:

“ S. 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–– ”

Complainant is the father of the deceased. If he would have been present, certainly, he would have made some efforts to rescue his son or at least efforts would have been made by him and other PWs to catch hold the accused, but it was not done. Complainant in his evidence has deposed that incident had occurred on 04.02.2010 at 08:00 p.m. at the shop of his son, who is deceased in this case, but source of light has not been disclosed by him. Complainant has further mentioned that there were three accused persons, but single fire was made by accused Khalid. PW Manzoor has also deposed that accused Khalid fired upon the deceased, but in the cross-examination, replied that at the time of incident electricity supply was available. PW Aziz has deposed that accused Khalid fired upon deceased Zahid Hussain in his shop at 08:00 p.m., but in the cross-examination replied that there was no electricity and it was darkness. Medical Officer in his evidence has deposed that deceased received four (04) firearm injuries in the result of two (02) fires, which clearly shows that ocular evidence is contradictory to the medical evidence. Presence of the eyewitnesses at the time of incident was doubtful. There was no source of light, on which accused was identified. As regards to the motive, prosecution has failed to prove it at trial. There were several circumstances in the case, which created doubt in the case of prosecution. Trial Court has rightly disbelieved the prosecution evidence. Scope of acquittal appeal is considerably narrow and presumption of double innocence is attached to the order of acquittal.

15. This Criminal Acquittal Appeal is without merit and the same is dismissed. These are the reasons of our short order announced on 27^th August 2019.

J U D G E

J U D G E

Abdul Basit