Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D– 101 of 2017

Present.

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Khadim Hussain Tunio.

Date of hearing : 11.12.2019.

Mr. Wazeer Ali Ghoto Advocate assisted by Mr. Wazeer Ali Mahar Advocate for appellant / complainant.

Mr. Aftab Ahmed Shar, Additional Prosecutor General assisted by Mr. Yasir Arafat Mahar Advocate for respondent No.3 and 4.

J U D G M E N T

NAIMATULLAH PHULPOTO, J.– Respondents (1) Allah Ditto son of Sher Muhammad, (2) Alim son of Sher Muhammad (3) Ali Ahmed son of Jan Muhammad (4) Noor Muhammad @ Nooro son of Manzoor Ahmed and (5) Shahbaz son of Mohabat All bycaste Khokhar were tried by learned Additional Sessions Judge-II Ghotki in Sessions Case No. 677/2011 (The State v. Allah Ditto and others) for offences under Sections 302, 148, 149 PPC. After regular trial, respondents No.1 to 5 have been acquitted by the trial Court vide judgment dated 04.05.2017, for the following reasons:

“e 15 U19

“ I have carefully considered the arguments advanced before me and perused he entire evidence available on record. 

Admittedly, as per contents of FIR the complainant party found accused 1.Allah Ditto son of Sher Muhammad, 2. Shahbaz son of Muhabat, both armed with hatchets, 3. Alam son of Sher Muhammad, 4.Noor Muhammad @ Nooro son of Manzoor, 5. Ali Ahmed son of Jan Muhammad having Lathi were standing, raised Hakal by accused Allah Ditto that Aid Ali was restrained him from standing in front of their houses issued threat that today he will be done to death. Saying so, all the accused persons apprehended and dragged Abid in "Juwar” crop and lay down him on earth. Accused Noor Muhammad and Alim caught hold arms of Abid Ali accused Ali Ahmed caught hold the legs of Abid, accused Allah Ditto inflicted hatchet blows on the right side of his neck, accused Shahbaz also inflicted hatchet blow on his head upper from ear. Abid raised cries and died at spot in the hands of accused then the accused decamped from the scene of occurrence. I have perused the evidence available on record very carefully it appears that there are material contradictions in the evidence of complainant & PWs. The complainant has deposed in cross-examination that the season was middle of summer and winter, but PW Zafar Iqbal has belied the version of complainant by deposing that the night of incident was of winter night. According to complainant the night of incident was moon night. They had three torches in their hands. Torches were of cells. One torch was with Sajid and second Torch with Zafar and third torch was with him. He was also holding spade, but he admitted such fact that he has not produced those torches so also spade to police, but above version of complainant has been belied by PW Zafar Iqbal, he has deposed that night was dark night. They all identified the accused on torch lights. They saw and identified the accused at the distance of half acre. It is fact that when accused party caught hold their cousin they did not fought with them due to fear or not made request to accused not to #drag their cousin. Accused only threatened them but did not hit them even they had not fired in air. The complainant has deposed all accused dragged deceased Abid up to 2/3 paces but PW Zafar Iqbal has belied such version by  deposing that the accused dragged deceased up to one Jareb and murdered him. The complainant and PW Zafar Iqbal both have admitted that at the time of incident the "Juwar” crop was about four feet, it is out of imagination of a prudent mind that complainant and PWs were at the distance of one Jareb and the incident took place inside the "Juwar" crop, how they had seen the accused at night time. PW Zafar Iqbal deposed that they took the dead body on cot and brought at house. The cot was brought by Sajid. The dead body was bought at their house at about 09.00/10.00 pm (night). Police came at their village about 09.00/10.00 am. Moreover PW Zafar Iqbal has admitted that after consultation with complainant he given the statement before police u/s 161 Cr.P.C. The complainant has denied a suggestion that they brought the dead body at hospital and police came there. The complainant has deposed that due to pacca land the foot prints were not visible there. The motive of incident was not disclosed by the complainant and PW Zafar Iqbal in their evidence. Moreover, even if the complainant party was supposed to be present at the venue of incident, as to why they remained mum, or not released the deceased from the clutches of accused persons, the complainant has deposed that he did not make any request to accused to forgive his son, even according to him, at the time of incident his son raised cries. The complainant has further admitted that they did not intervene or request to the accused party nor raised cries to rescue his son from the hands of accused persons. It clearly indicates that the alleged incident was of unseen incident. 

The another important aspect of this case was three days delay in lodging of FIR, as the incident had taken place on 15.10.2011 and FIR was lodged on 18.10.2011, even according to complainant such information given to police on mobile cell phone on the very next day of incident, such information was not given to police instantaneously, dead body of deceased was brought by complainant at Taluka Hospital Ghotki and police had seen the dead body at Taluka Hospital Ghotki. On such point of delay the learned counsel for the accused has relied upon case law reported in 2010 P.Cr.L.J 1163 [Peshawar] I am pertinent to reproduce its dictum as under: 

" S. 302(b)---Qatl-e-Amd---Appreciation of evidence--- Delay of one hour and twenty-five minutes in lodging the FIR., remained unexplained---In absence of such explanation, it could be inferred that time spent was consumed in consultation and deliberation.” 

The Honourable apex Court in the aforesaid case law has appreciated the evidence regarding delay of one hour and twenty-five minutes, but the delay occasioned in case in hand was completely three days, without explanation it can be inferred that time spent was consumed in consultation and deliberation. The ocular version is in conflict with the medical evidence, as according to Mashirnama of inspection of dead body of deceased, which reflects in all four injuries i.e. one injury on above right ear, through and through, one injury on right side of neck, two injuries with other injury on neck, but perusal of evidence of Medical Officer, it only shows three injuries. In this respect I am of the considered view that the learned defense counsel has rightly contended that the Medical evidence did not support the ocular evidence. So far as, the circumstantial evidence is concerned SIP Abdul Hameed Rind, inspected the injuries of deceased on 16.10.2011 at 1030 hours with delayed of one day. No explanation to this count has been furnished by complainant or even 1.0. I have gone through the contents of entry No. 4 at 0930 hours on 16.10.2011 produced by him (Exh.18-B) so also accused through defense witness WHC Noor Muhammad Kolachi of PS Sarhad (Exh.26-A) which did not indicate the names of accused, place of incident, or motive of incident. The complainant and PWs brought dead body on the very day at the home and on next day of incident, informed to police as stated supra, on 16.10.2011 after having conducted postmortem brought dead body at their house and after burial ceremony of deceased they were sitting for receiving condolence and on 18.10.2011 lodged FIR at PS Sarhad with delay of three days, that too not explained by complainant or even 1.0. Even the evidence of Medical Officers, Mashir, Tapedar, scorpe bearer and Investigation Officers not connecting the accused with the alleged charge of murder. The post mortem produced by M.O. has not fully corroborated by the medical evidence. In view of above discussion and reasons the version of complainant is in conflict with PW Zahid Iqbal, medical evidence so also circumstantial evidence did not support to each other, the case laws submitted by learned counsel for the complainant are not helpful to him as the facts and circumstance of case laws are quite distinguishable from the facts and circumstances of the case in hand. However the case laws relied upon by learned counsel for accused are very much helpful and identical to the facts and circumstances of the case in hand. Material available on record suggests, case of prosecution against present accused doubtful. 

It is well settled principle of law that even slightest possible doubt if any, in case of prosecution, the benefit of same should go in favour of accused. Reliance is placed on case law Re-Saddat Vs. the State reported in 2009 SCMR 230, wherein Honourable Supreme Court of Pakistan has been pleased to hold as under: 

(c) Criminal trial

...... Benefit of doubt, principle of..... Applicability... For the purpose of benefit of doubt to an accused, more than one infirmity is not required... single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful." 

In light of above discussion Point No.2 is answered as doubtful.” 

2. Mr. Wazeer Ali Ghoto, learned advocate for the appellant mainly contended that trial Court has failed to consider the prosecution evidence according to settled principles of law. He has submitted that ocular evidence was corroborated by medical evidence but trial Court ignored it. He has further submitted that there were recoveries of incriminating material/articles, those were also ignored by the trial Court. It is submitted that delay in lodging of the FIR has been fully explained as deceased was a young man and complainant being father was busy in his funeral ceremony. Learned advocate for appellant submits that Investigation Officer failed to collect torches from eye-witnesses and conducted defective investigation. Lastly, it is submitted that acquittal order recorded by the trial Court may be converted to the conviction of respondents.

3. Mr. Aftab Ahmed Shar, Additional Prosecutor General assisted by Mr. Yasir Arafat Mahar advocate for respondents Nos. 3 and 4 argued that impugned judgment passed by the trial Court is based upon sound reasons; that there was inordinate delay of 03 days in lodging of the FIR for which no plausible explanation has been furnished. It is further argued that it was night time incident, source of identification were torches, but the same were not recovered by Investigation Officer. It is submitted that conduct of the complainant and other eye witnesses at the time of incident was highly questionable; that they made no effort to rescue the deceased. Lastly argued that trial Court has rightly recorded the acquittal in favour of the respondents and after acquittal, they have double presumption of the innocence. It is prayed for dismissal of this acquittal appeal.

4. After hearing the learned counsel for the parties, we have perused the evidence available on the record. It appears that it was night time incident and source of light were troches but those torches were not produced by complainant party before police during investigation. There was also delay of 03 days in lodging of the FIR, which remained unexplained, in absence of such explanation it could be inferred that time spent was consumed in consultation and deliberation. We have also examined the conduct of the complainant who is the father of deceased and other eye-witnesses on the touch stone of Article 129 of Qanoon-e-Shahadat,1984 and have come to the conclusion that eye witnesses were not present at the time of incident, otherwise, they would have made efforts to rescue the deceased. Trial Court in the judgment has highlighted the contradictions in the evidence of prosecution witnesses on material particulars of the case. Judgment of the trial Court is based upon sound reasons. Counsel for the appellant could not satisfy the Court that judgment of acquittal passed by trial Court is perverse or arbitrary. 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

J U D G E

Irfan/PA.