Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S – 79 of 2019
Date of hearing : 09.08.2019.
Mr. Ali Ahmed
Vistro, Advocate for the appellant / complainant.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant /
complainant Irfan Ali son of Shahnawaz has impugned the judgment dated
04.05.2019 passed by learned Sessions Judge, Naushahro Feroze in Session Case
No.90 of 2019 for offences under Sections 319, 320, 279, 427, PPC. On the
conclusion of the trial vide judgment dated 04.05.2019, respondents / accused
No.1 and 2 namely Dr. Salman Khanzada and Shahnawaz were acquitted.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are that complainant Irfan Ali lodged his report at P.S Tharushah on 05.02.2019
at 1500 hours alleging therein that father of the complainant namely Shahnawaz aged
about 40‑42 years (now deceased) left home by a motorcycle for Tharushah
on 05.02.2019. Complainant along with his maternal uncle Yar Muhammad also left
home by a motorcycle on 05.02.2019 at 1100 hours. The father of the complainant
reached at the bridge of Sakhi Dad Wahi. In the meanwhile, it is alleged that
motorcycle of respondent / accused Shahnawaz Bhurt appeared from the Eastern side
and collided the motorcycle of the father of the complainant, who sustained serious
injuries and was admitted in RHC Tharushah. It is alleged that dispenser Yameen
Almani told the complainant that duty doctor was Dr. Salman Khanzada.
Complainant asked the dispenser to call the doctor for first-aid treatment.
Dispenser replied that doctor would reach within a few minutes. In the
meanwhile, it is stated that due to bleeding, father of the complainant
succumbed to the injuries in the hospital. Complainant went to the police
station and lodged FIR against respondents Dr. Salman Khanzada and Shahnawaz
under Sections 319, 320, 279, 426, 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 both the accused. They pleaded not guilty and
claimed to be tried.
5. At
the trial, prosecution examined eight (08) PWs and prosecution side was closed.
6. Statements
of accused Dr. Salman Khanzada and Shahnawaz were recorded under Section 342, Cr.
P.C in which accused claimed false implication in this case and denied the prosecution’s
allegation.
7. Learned
trial Court after hearing learned counsel for the parties and assessment of the
evidence vide judgement dated 04.05.2019 acquitted the accused for the
following reasons:
“ It is alleged that on 05.02.2019 at
1100 hours near bridge of Sakhi Dad Wahi Miner to RHC Tharushah Taluka Bhiria
accused Shah Nawaz Bhurt drove a motorcycle on a public way in a manner so
rashly or negligently as to endanger human life or to be likely to cause hurt
or injury to any person and hit it to deceased Shah Nawaz Channa who expired
due to such injuries. In support of such allegation of charge, prosecution
examined complainant Irfan Ali, P.Ws Muhammad Nawaz, Yar Muhammad, Muhammad
Yaseen.
Complainant
Irfan Ali in his evidence at Ex.5 has deposed that deceased Shah Nawaz was his
father, who left home on 5.2.2019 by a motorcycle for Tharushah. He along with
his maternal uncle Yar Muhammad also left home by a motorcycle on the same date
viz. 05.02.2019, at 11:00 a.m. his father reached near bridge of Sakhi Dad Wahi
distry. Meanwhile a motorcyclist Shah Nawaz Bhurt came from eastern side and
hit his motorcycle with his father. His father sustained grievous injuries who
was brought to RHC Tharushah where he succumbed to injuries while P.W Yar
Muhammad is maternal uncle of complainant Irfan Ali, has deposed that his
brother-in-law Shah Nawaz left home by a motorcycle on 05.02.2019 for Tharushah
and he alongwith his nephew Irfan Ali (complainant) also left home by a
motorcycle and an accused Shah Nawaz Bhurt hit his motorcycle with deceased
Shah Nawaz Channa who succumbed to injuries in RHC Tharushah due to lapse of
long time and much bleeding there.
In
their cross-examination, complainant Irfan Ali and P.W Yar Muhammad have
contradicted each other because of complainant Irfan Ali in his
cross-examination has deposed that he saw accident from the distance of about
200 paces while P.W Yar Muhammad has deposed that an alleged incident was seen
by him from a distance of about 50 paces meaning thereby they were not
available there. Complainant Irfan Ali in his evidence has failed to explain
that why and for what reasons P.W Yar Muhammad had come to his house who is
admittedly resident of village which is at the distance of about 12 to 13 K.Ms
away from the place of vardat. Although, P.W Yar Muhammad has replied
voluntarily in his cross-examination that he had stayed as a guest in the house
of deceased, but neither in the contents of FIR nor in statements Under Section
161 Cr.PC of P.Ws nor during investigation, such position was disclosed that
P.W Yar Muhammad had stated as a guest in the house of complainant Irfan Ali.
He being closely related to complainant as well as deceased Shah Nawaz,
therefore his presence at an alleged time of incident is not proved but it
creates doubt in a prudent mind. Not only this but it is also doubtful that why
and for what reasons complainant and P.W Yar Muhammad had proceeded on a
separate motorcycle after departure of deceased alone on a motorcycle and
surprisingly it is also doubtful that at a very specific time and place they
had come and saw an alleged incident with their eyes. Learned defence counsel
has put a cross-question to both of them that they were not present at an
alleged time of incident and deceased was shifted to Rural Health Centre by
co-villagers of the area. Although this has been denied by them but an
investigation officer SIP Muhammad Mithal in his cross-examination has admitted
that injured persons were taken to the Hospital by co-villagers before his
arrival to the vardat. He has admitted that he did not record statement of any
co-villager. He has never deposed that an alleged injured was brought to the Hospital
by complainant or P.W Yar Muhammad. Not only this but learned defence counsel
has put a question to complainant in his cross-examination that they had
protested against the Medical Officer and such news were flashed in the
newspaper daily “Sindh” dated 06.02.2019, which has been admitted by him. In
this regard, learned advocate for an accused Shah Nawaz has contended that
neither complainant nor P.W Yar Muhammad were present at an alleged place of
incident and they are not eye witnesses in the case. They had never seen an
alleged incident. They had only come to the Rural Health Centre Tharushah after
death of deceased but in order to strength their case, a false story was made
by them in order to prove their presence at an alleged place of vardat and in
order the strength his contention, he has drawn attention of the court to FIR
produced at Ex.5-A which shows that an alleged time of incident is shows as
11:00 a.m. to 12:30 noon which reveals that complainant or P.W Yar Muhammad had
not assurance about exist time of an alleged incident as well as there is
inordinate delay of about three yours in lodging FIR for which no plausible
explanation is furnished by the complainant. A copy of newspaper daily “Sindhu”
dated 6.2.2019 also reveals that there was an accident of two motorcyclists and
they were seriously injured. In such newspaper there is no mention about
presence of complainant and P.W Yar Muhammad at an alleged time of incident. It
is not proved that an accused Shah Nawaz was driving a motorcycle rashly and
negligently in order to endanger human lives. It is settled law that in case of
even a slightest doubt, its benefit must go to accused not as a matter of grace
but of right. In such situation, I would like to take guidance from case of
Naimatullah Khan vs. The State through Anti Narcotic Force, Sindh (2012 YLR
215). I do hereby re-produce its plaucitum ‘c’ as under:-
“Criminal trial. Benefit of Doubt. For giving
benefit of doubt to an accused, there need not be a number of circumstantial
evidence to provide innocence of an accused; even single evidence appearing to
a prudent mind creating doubt was more than enough to acquit an accused”.
It
is a settled principle of law that even a single benefit is sufficient to
discard prosecution case and series of doubt are not necessary, but in present
case, there are series of doubts, which led evidence of prosecution not
believable and trustworthy to come on conclusion that doubt is clear from the
face of evidence. Thus, it can safely be concluded that case of prosecution was
not proved. Point No.2 is thus answered in the ‘negative’. ”
8. Complainant being
dissatisfied with the acquittal of the accused has filed this appeal.
9. Learned advocate for
the appellant / complainant mainly contended that impugned judgment of the
trial Court is based on misreading and non-reading of evidence. He has also
argued the gross negligence on the part of respondent Dr. Salman Khanzada in
treatment of deceased. It is also argued that trial Court has disbelieved
strong evidence without assigning sound reasons, and prayed for converting the
acquittal to the conviction.
10. Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General 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 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. ”
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. 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.
14. This Criminal
Acquittal Appeal is without merit and the same is dismissed. These are
the reasons of my short order announced on 9th August
2019.
J U D G
E
Abdul Basit