Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 21 of 2014

Date of hearing : 23.09.2019.

Mr. Shabbir Ali Bozdar, Advocate for appellant / complainant.

Mr. Nusrat Hussain J. Memon, Advocate for respondents / accused No.1 and 3.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Noor Muhammad son of Dost Ali has impugned the judgment dated 27.02.2014 passed by learned II^nd Civil Judge & Judicial Magistrate, Ghotki in Criminal Case No.113/2013 for offences under Sections 337-A(i), 337-F(v), 337-L(ii), 34, PPC. On the conclusion of the trial vide judgment dated 27.02.2014, respondents / accused namely Shahid Hussain alias Shahid, Fazal Muhammad alias Fazal, Tariq Ali and Muhammad Saleem alias Saleem were acquitted.

2. Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“ The brief facts of the case are that on 25.05.2013 at about 1300 hours the complainant Noor Muhammad Kolachi has lodged the F.I.R. stating therein that about 5/6 years back S.I.P., Budho Khan Kolachi has issued threats and blackmail to his brother from passing of street, on 25.04.2013 complainant along with his brother namely Gul Muhammad and his maternal cousin namely Abdul Hameed were going to Ghotki for work at about 1700 hours when they reached near Kachehri Road at Friends Photo Studio, accused everyone namely Shahid armed with iron bar, Saleem, Tarique, Fazal all armed with lathies and Mst. Hidayat empty handed appeared there, accused Mst. Hidayat instigated other companions / accused to teach lesson to Gul Muhammad, on such instigation accused Saleem caused lathi blow on right leg of P.W. Gul Muhammad who fell down, accused Shahid caused iron bar blow on the back side of heard to P.W. Gul Muhammad, accused Tarique caused lathi blow on the right leg at knee joint to P.W. Gul Muhammad while accused Fazal caused lathi blow on right hand to P.W. Gul Muhammad, thereafter they went away while using filthy language and complainant shifted the injured to Police Station Ghotki-A, Section, police referred the injured and they went to taluka Hospital Ghotki, after giving him first Aid, Medical officer further referred him to Sukkur for his better treatment, thereafter the P.W., was admitted under treatment at hospital. Thereafter petition was filed before Honourable Sessions Court, Ghotki against accused and Honourable Court ordered for registration of F.I.R. ”

Thereafter, complainant went to P.S A-Section, Ghotki and lodged the FIR vide Crime No.106/2013 for offences under Section 337‑F(v), 114, 147, 148, 149, PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under the above referred sections.

4. Trial Court framed the charge against accused Shahid Hussain alias Shahid, Fazal Muhammad alias Fazal, Tarique Ali and Muhammad Saleem alias Saleem at Ex.02. They pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined five (05) prosecution witnesses namely Noor Muhammad (complainant), Gul Muhammad (eyewitness / injured), SIP Ali Nawaz (Investigation Officer), Abdul Ghani (mashir) and Muhammad Hassan Shah (Medical Officer), and then prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr. P.C at Ex.14 to 17, in which accused claimed false implication in this case and denied the prosecution allegation. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 27.02.2014 acquitted the accused for the following reasons:

“ The P.W-01 complainant Noor Muhammad and P.W./injured Gul Muhammad have deposed as per F.I.R. and the statement recorded on 25-05-2013. The injured has stated about 04 injuries on his person and such version has also been supported by the complainant. They have completely disowned the reporting the incident on the day of occurrence wherein the injured has given the names of 03 accused who were shown armed with lathies while the contents of F.I.R., statement of the complainant recorded by the police, deposition of the complainant and injured reveals about 05 accused who were shown armed with lathies and iron bar so also the instigation on the part of let of accused Mst. Hidayat. The N.C. report, mashirnama of the injuries and police refer letter reveal about 03 injuries on the person of the injured Gul Muhammad while deposition of the complainant, injured Gul Muhammad, contents of the F.I.R. and the statement of the complainant recorded by police reveal about 04 injuries. It has also been brought on the record by the defence and admitted by both the complainant and P.W./injured Gul Muhammad in their cross examination that their brother Noor Ahmed filed the petition before the Honourable High Court of Sukkur wherein at para-7 of petition reveal about the names of 02 accused Saleem and Tariq, who had assaulted upon the injured.

If the Court disbelieves the first version of prosecution to the extent that the N.C. report, mashirnama of the injuries, police refer letter were managed by the I.O. of the case in collusion with one S.I.P. Budho who is inimical to the complainant as admitted by the prosecution, then question comes in the prudent mind as to why one of the brother of the complainant and injured has not given the names of the other accused in the petition which was filed before the Honourable High Court Sukkur.

Even otherwise if it is believed the second version of the prosecution that injured has not got registered the N.C. report then it is fact that incident was taken place on 25‑04-2013 and the F.I.R. was lodged on 25-05-2013 with the delay of about 01 month. In this regard I place reliance on: 2009 S C M R 230. Wherein it is held that “in lodging of F.I.R. after in ordinate delay of six months of the abduction and recovery of his son, had cast heavy doubt on the veracity of the F.I.R.” The case in hand there is inordinate delay in lodging of F.I.R. for about 01 month to the injuries and said delay has not been plausibly explained, thus I am of the view that it casts heavy doubt on the veracity of the alleged F.I.R.

It has also been brought on the record that criminal cases were pending between the parties being crime NO.165 of 2009 and 166 of 2009. It has also been admitted by the prosecution witnesses that there was enmity between the parties over matrimonial affairs.

The complainant replied that they were purchasing vegetable and standing at vegetable cart while eye witness/injured replied that they were purchasing grocery items from shop. The complainant and injured have also admitted that the place of incident was thickly populated area and the public gathered at the spot. It is admitted position that the prosecution has not brought on record the independent witness of the occurrence. In this context, I also place reliance on: 2009 S C M R 230. Wherein it is held that “not a single independent witness from the locality was produced to support the story”.

I.O. of the case categorically stated about the registration of the N.C., preparation of mashirnama of injuries and police refer letter while the mashir denied the contents of the mashirnama of injuries to the extent of one injury. The mashir had also admitted that other people were available at the spot and police did not ask other person to be witness of the incident, he also admitted that complainant and injured are his brothers, he also stated that I.O. of case obtained his one signature on the unwritten paper at P.S.

The medical officer deposed as per medical evidence and supported the version of the prosecution to the extent of 04 injuries, he also admitted that police refer letter reveal about 03 injuries on the person of the injured. He also denied that the injuries could be caused due to accident.

The prosecution has also failed to show enmity or partiality on the part of the I.O. of the case. Mere stating that one S.I.P. Bhudo was inimical to injured does not mean partiality on the part of the I.O. in collusion with said police personal. It is also established that some of the documents have been admitted by the prosecution witness and some are denied which are admitted/produced by the same I.O. of the case, this also brings the case of prosecution doubtful. It is also admitted fact that nothing incriminating viz. lathies and iron bar were secured from the possession of the accused or from the place of incident. It is also admitted fact that blood stained cloths were also not brought on record by the prosecution which were admittedly lying with the prosecution witnesses.

In view of the above discussed reasons I am of the opinion that the case is an outcome of hostility existing between the parties over the matrimonial affairs, passing of street and criminal cases. All the witnesses are interse. Prosecution had not examined any independent witness of the occurrence. Ocular evidence is not supported with medical Evidence. Prosecution evidence suffered from glaring contradictions and material discrepancies. In this context I place reliance on: 2001 P.Cr.L.J. 594 (Karachi).

Il is the settled law that the single circumstance creates the doubt in the prosecution case, the same is sufficient to go in favour of the accused as a matter of right, not as a grace.

Accordingly the under discussion points for the determination stand disposed of as not proved as doubtful, in the interest of justice. ”

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

9. Learned counsel for the appellant / complainant submits that FIR was delayed as IO for mala fide reasons refused to register the FIR and it was recorded on the directions of the learned Additional Sessions Judge / Ex-Officio Justice of Peace. It is further argued that Investigation Officer has spoiled the case of prosecution. Learned counsel for the appellant / complainant submits that in fact ocular evidence was not contradictory to the medical evidence but Investigation Officer extended favour to the accused persons. Lastly, it is submitted that prosecution had proved its case against the respondents and trial Court while ignoring settled principles of the law recorded acquittal in favour of the respondents.

10. Learned DPG referred to the evidence of injured Gul Muhammad and argued that so far the injuries sustained by the injured Gul Muhammad are concerned, there is discrepancy. Police prepared mashirnama showing three (03) injuries suffered by the injured but doctor has stated that there were four (04) injuries on the person of the injured. Learned DPG submits that prosecution could not resolve this controversy or ambiguity at trial. Learned DPG submits that trial Court has rightly appreciated the evidence and acquitted the accused. It is also submitted that scope of the acquittal appeal is narrow and limited.

11. Mr. Nusrat Hussain Memon, learned counsel for the respondents has also argued that prosecution has failed to establish the case and argued that trial Court rightly acquitted the respondents.

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. In the present case, there was delay of about one month in lodging of the FIR for which no plausible explanation has been furnished. It has come on record that mashirnama of injuries of the injured Gul Muhammad was prepared; he had sustained three injuries but Medical Officer opined that he had four injuries. Trial Court has also highlighted in the judgment that this is the case of two versions; one version given before the police and another version set out in the Constitutional Petition; both versions are different with regard to number of accused and injuries caused to injured Gul Muhammad.

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 in the earlier part of the day.

J U D G E

Abdul Basit