IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Misc. Application No.D-25 of 2021.

 

Before:

Mr. Justice Muhammad Faisal Kamal Alam,

Mr. Justice Amjad AliSahito.

 

 

Applicants:                           1. Sarfraz alias faraz S/O ZahidHussain Rajput,

                                                2. ZahidHussain S/O TalibHussain Rajput,

                                                3. Syed SaqlainHaider Shah S/O Syed Muhib Ali Shah Lakiyari.

                                                Through Mr. Habib-ur-Rehman Shaikh, Advocate.

 

 

The State:                              Through Zulifqar Ali Jatoi, Additional P.G.

 

Date of hearing:                    26-01-2022

Date of Order:                       02-02-2022

 

O R D E R.

 

 

 

AMJAD ALI SAHITO, J-.Through this Criminal Misc. Application, the applicants have impugned the order dated 20.09.2021 passed by learned Judge, Anti-Terrorism Court, Khairpur, on the report under section 173 Cr.P.C submitted by Investigating Officer after completion of investigation, in crime No. 271/2020 registered at Police Station ShaheedMurtazaMirani, for offences under sections 302, 120-B, 297, 435, 148, 149 PPC whereby learned Judge, Anti-Terrorism Court, Khairpur accepted the challan and issued P.O for accused.

 

2.                     Briefly stated the facts of the Criminal Misc. Application are that on 20.11.2020 complainant Waseem Ahmed had lodged FIR at Police Station ShaheedMurtazaMirani alleging that ASI Junaid Bilal is his relative, from whom some time ago Sarfraz Rajput had borrowed rupees fiftylacs which was demanded but Sarfraz had kept on hopes. On 17.11.2020 complainant along with his relatives Muhammad Shareef, Imam Dino, Ali Gohar were boarded in Mehran Car and proceeded to their village, it was 1145 hours when they reached Bhurgiri bridge where saw VIGO vehile of Junaid Bilal Wassan which crossed them, which was stopped near electric pole. Complainant party stopped their vehicle behind them. They saw on the head light of vehicle six persons alighted from said VIGO, they were identified to be 1. Sarfraz alias Faraz having cleaver in his hand  2. ZahidHussain had TT pistol, 3. Syed Saqlain with cleaver along with three unidentified persons having Kalashnikovs, they over powered upon the complainant party, it was 1200 hours.  It was further alleged in the FIR that accused Sarfraz gave hakal to Junaid Bilal that he will not spare him alive and will set his dead body on fire. Thereafter accused Sarfrazalias Faraz armed with cleaver/butcher knife hit on the head, due to which ASI Junaid Bilal raised cries and fell down and accused Saqlain Shah hit and cut both arms of ASI Junaid Bilal, then accused Sarfraz alias Faraz cut both legs of ASI Junaid Bilal. Then all three nominated accused along with one unknown associate threw amputated legs and arms infront of vehicle  and accused Sarfraz alias Faraz took out gallon of petrol and sprinkled upon him and vehicle, while accused ZahidHussain sprinkled chemical. Thereafter accused Sarfraz alias Faraz and ZahidHussain took out matches and set on fire the vehicle which spread completely and the dead of ASI Junaid Bilal Wassan got burnt to ash due to heavy fire, thereafter accused persons fled away. Complainant party informed their relatives and Shah Lateef Police, after some time police came at spot but the dead body of ASI Junaid Bilal was not identifiable which was taken and sent to Civil Hospital for post mortem ultimately above FIR was lodged.

 

3.         Learned counsel for applicants has mainly contended that learned Judge, Anti-Terrorism Court Khairpur has not applied his judicial mind and passed the order on the report under section 173 Cr.P.C submitted by Investigating officer summarily which is not speaking order and the same is liable to be set aside. Learned counsel for applicants/accused has relied upon the case of FarooqueSumar and others v. The State and others (2004 P.Cr.L.J 1023),

 

4.         On the other hand learned Additional P.G has supported the impugned order and submits that the order passed by learned Judge, Anti-Terrorism Court, Khairpur is in accordance with law which does not require for interference.

 

5.         We have heard learned counsel for the parties and gone through the material available on record.From the perusal of record it reflects that on 17.11.2020 at 2400 hours on link road near village Maitlaabove accused persons along with three unknownformed unlawful assembly and being members of criminal conspiracy in furtherance of their common object accused Sarfraz alias Faraz having cleaver in his hand  2. ZahidHussain had TT pistol, 3. Syed Saqlain with cleaver along with three unidentified persons having Kalashnikovs over powered upon the complainant party,  at 1200 hours accused Sarfraz gave hakal to Junaid Bilal that he will commit his murder and will set his dead body on fire. Thereafter accused Sarfraz alias Faraz armed with cleaver hit on his head, due to which ASI Junaid Bilal raised cries and fell down while accused Saqlain Shah cut both arms of ASI Junaid Bilal, then accused Sarfraz alias Faraz cut both legs of ASI Junaid Bilal. All three nominated accused along with one unknown associate threw amputated legs and arms infront of vehicle  and accused Sarfraz alias Faraz took out gallon of petrol and sprinkled upon him and vehicle, while accused ZahidHussain sprinkled chemical. Accused Sarfraz alias Faraz and ZahidHussain took out matches and set on fire the vehicle which spread completely and the dead body of ASI Junaid Bilal Wassan got burnt to ash due to heavy fire, thereafter accused persons fled away. The controversy involved in this case that when report under section 173 Cr.P.C was submitted by the Investigating Officer of the case before learned Judge, Anti-Terrorism Court, Khairpur who after hearing the parties, accepted the final challanand P.O was issued against the accused.

 

6.         From perusal of record available before us it reveals that after completion of investigation, report under section 173 Cr.P.C was submitted by the Investigating officer and the learned  Judge, Anti-Terrorism Court has taken cognizance under section 173 Cr.P.C.    Section 173 Cr.P.C provides that after completion of investigation, the Incharge of Police Station shall submit report to Public Prosecutor before the Magistrate empowered to take cognizance of the offence on it and if he finds that there is sufficient evidence against the accused then he has power to take the cognizance of the offence. Further, if the Magistrate is of the view that proper investigation has not been conducted and requires further investigation then he can direct the officer incharge of Police Station to make further investigation.In view of Section 190 Cr.P.C, if, a Magistrate after taking cognizance of offence if an offence is triable exclusivelyby a Court of Sessions, without recording any evidence sent the case to the Court of Sessions for trial.

 

7.         In case of Muhammad Akbar v. State (1972 SCMR 335), it has been observed by the Honourable Court that; 

"Even on the first report alleged to have been submitted under section 173, Cr.PC, the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(i)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC-425). "

 

 

8.          In the instant case a brutal murder was committed as alleged by complainant that  accused Sarfraz alias Faraz caused cleaver on head of ASI Junaid Bilal who fell down while raising cries then  accused Saqlain Shah cut down both arms of ASI Junaid Bilal and accused Sarfraz alias Faraz Rajput also  cut down both legs from thigh with cleaver and separated with the help of three unidentified persons then they thrown the pieces of body i.e  arms and legs, upper body in the said vehicle, thereafter accused Sarfraz alias Faraz took petrol from VIGO and put on the vehicle, then accused Sarfraz and Zahid took out match boxes and set on fire upon vehicle and due to petrol, fire took control upon the vehicle and within the sight of witnesses vehicle and dead body of ASI Junaid Bilal burnt due to set on fire.  It is obvious that taking cognizance shall not prejudice right of accused but rests the burden upon the prosecution to prove its charge without any harm to presumption of innocence of the accused involved in the offence. Even otherwise, it is by now settled that cognizance is taken against offence and not against the offender.  In such situation, the learned Judge Anti-Terrorism Court Khairpurwas justified to have taken cognizance of the offence against the accused persons, as such it could not be said to be illegal or perverse to be interfered with by this Court in exercise of its inherent jurisdiction. If the applicants/accusedare feeling that they being innocent have been involved in this case falsely by the complainant then they may prove their innocence by joining the trial, if so is advised to them.

9.                  For what has been discussed above, the instant Criminal Miscellaneous Application is dismissed.

 

JUDGE

JUDGE

Irfan/PA

 

 

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

 

Criminal Acquittal Appeal No.S-41 of 2021.

 

Appellant:                     The Prosecutor General Criminal Prosecutor Service, Department Govt. of Sindh, Karachi.

                                      Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.

Respondent:                  Habibullah son of KarimBux Lund.

 

Date of hearing:            10-02-2020.

Date of Judgment:        10-02-2020.

 

J U D G M E N T

 

 

AMJAD ALI SAHITO, J-.      Being aggrieved and dissatisfied with the impugned judgment dated 18-07-2019, passed by learned1st Additional Sessions Judge/MCTC NaushehroFeroze in Sessions Case No. 850/2014 Re. The State Vs. Habibullah Lund, offence u/s 23(i) (a), Sindh Arms Act, 2013, Crime No. 66/2014 registered at police Station Mithianiwhereby the respondent was acquitted of the charge.

2.      The brief facts of the prosecution case are that on 29-10-2014 complainant SIP/SHO Din Muhammad Leghari lodged the FIR alleging therein that on the said date he along with his subordinate staff namely Aijaz Ali, PC Amir Bux, PC Mehar Ali and DPC Muhammad Saleh left Police Station vide entry No. 09 at 1350 hours in Government vehicle for investigating of Crime No. 64/2014, offence u/s 302, 337H(ii), 147, 148, 149, 504 PPC. The private mashirs namely GhulamRasool Lund and Abdul Khalid Lund were also accompanied with them. When they reached near village Dittal Lund, where they received spy information that accused Habibullah Lund wanted in the above rcime was going by the road side to his village Bhorti.  On receipt of such information, they proceed towards the pointed place and reached at link road Bhorti near Mango garden of Abdul HaqueBhurt, where at about 1530 hours they apprehended the said persons. On enquiry, the said persons disclosed his name as Habibullah son of KarimBuxbycaste Lund r/o village DittalLumd Taluka Kandiaro. During his personal search one 30 bore pistol along with five live bullets in its magazine was recovered from his possession, to which accused disclosed that he used the same in commission of murder of Khan Muhammad. Such pistol, magazine and bullets were sealed at the spot, then such mashirnama was prepared at the spot in presence of above mashirs. Then accused and case property were brought to police station, where complainant has registered the FIR against the accused on behalf of the state.

3.     The learned trial after observing all formalities and recording evidence of the complainant party as well as statements of accused, acquitted the respondent through the impugned judgment.

4.      Learned Additional Prosecutor General for the Statesubmits that though all the witnesses have supported the case but the learned trial Court has erroneously acquitted the respondent without appreciating their corroborative evidence. He prayed for setting aside the impugned judgment so also awarding conviction and sentence to the respondent.

5.      I have heard learned Deputy Prosecutor General, Sindh representing the State and have gone through the evidence as well as impugned judgment available on record. The criterion of interference in the judgment against acquittal is not the same as against the cases involving a conviction. The scope of interference in an appeal against acquittal is narrow and limited for the reasons that 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.

6.      From perusal of material brought on record, it appears that complainant in the FIR has disclosed that both the private mashirs along with them, when they left police station for investigation of main crime No. 64/2014 while he during the cross examination, the complainant SIP Din Muhammad has deposed that on 29-10-2014 he sent WPC Sikandar who went to Mithiani Town from where brought both the private mashirs at police station. Complainant during his cross examination has deposed that Munshi prepared mashirnama of arrest and recovery on the spot at his dictation while mashirGhulamRasool has deposed during his cross examination that memof of arrest and recovery was prepared by SHO Din Muhammad Leghari. It is also surprising to note that the complainant SIP Din Muhammad has not deposed anywhere as to whether he has sent the recovered pistol to Forensic Science Laboratory in order to know its working condition, even the FSL report has not been produced during the trial before the trial Court, which single thing creates uncertainty in the prosecution case. In view of above the prosecution evidence is doubtful as it is found contradictory and inconsistency on material particulars without being corroborated by independent evidence, which creates reasonable doubt.

7.      I have also carefully perused the record of the caseand have no hesitation to observe that impugned judgment is speaking one and elaborate which does not suffer from any illegality, gross irregularity, infirmity, hence, it does not require any interference by this Court. It is settled law that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the cases of TARIQ PERVEZ v. THE STATE(1995 SCMR 1345), MUHAMMAD SAEED v. THE STATE (2008 P.Cr.L.J. 1752), GHULAM MURTAZA v. THE STATE (2010 P.Cr.L.J. 461), MOHAMMAD MANSHA v. THE STATE (2018 SCMR 772).

8.      It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because the presumption of double innocence is attached in the later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, and arbitrary in nature or based on a misreading, non-appraisal of evidence or is artificial, arbitrary and lead to a gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference in the judgment of acquittal gives rise to a strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order/Judgment of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of MUHAMMAD IJAZ AHMAD v. FAHIM AFZAL(1998 SCMR 1281) and JEHANGIR v. AMINULLAH AND OTHERS (2010 SCMR 491).It is also a settled principle of law as held in a plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice. 

9.      Suffice it to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which is based on sound and cogent reasons that do not warrant any interference by this Court. The appellant has miserably failed to establish extraordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial Court may be interfered with by this court.

10.    This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed.

JUDGE

Nasim/P.A