IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Acq. Appeal No. D-04 of 2021
&
Cr. Acq. Appeal No. S-05 of 2021
Before:
Mr. Justice Naimatullah Phulpoto,
Mr. Justice Khadim Hussain Tunio,
Appellant : The State, through
Mr. Ali Anwar Kandhro, Additional
Prosecutor General.
Respondent : Ali Bux s/o Wahid Bux Brohi,
Date of hearing & order: 05-10-2022
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O R D E R
Naimatullah Phulpoto, J.- The appellant/Additional Prosecutor General Sindh has filed the appeals against acquittal of the respondent Ali Bux Brohi in Sessions Case No. 215/2019 as well as in offshoot Sessions Case No.140/2019.
2. Brief facts leading to the filing of the acquittal appeals as mentioned in the impugned judgment, are as under:-
"Present accused, his son Ahsan Ali and his paternal nephew Ali Jan have been shown as accused who in furtherance of their common intention committed Qatl-i-Amd of Mst.Noorzadi and Anwar Ali on the pretext of karo and Kari by causing them firearm injuries.
Deceased Mst. Noorzadi is the daughter of present accused Ali Bakhsh, sister of absconding accused Ahsan Ali and cousin of another absconding accused Ali Jan, while deceased Anwar Ali was by caste Pahore and was not related with the accused party."
3. The trial court on the conclusion of the trial acquitted the respondent/accused while mentioning the reasons in the para Nos.15 and 16 of the impugned judgment dated 02.09.2020. Relevant paragraphs are reproduced as under:-
"15. It has also come on record that complainant party was spy information in advance so also on their reaching at near place of scene accused made fire shots upon deceased in their presence. How sorry the affairs of the State particularly of the complainant party that they were 06 in numbers and were duly armed with sophisticated weapons and left the deceased at the mercy of accused to commit their murder within their sight without using the arms and ammunition upon accused to save the lives of deceased or any other effort to which show that they have followed the accused in order to arrest them. The story as narrated by the PW-1 complainant and PW-2 while reiterating the same version of FIR and statement under section 161 Cr.PC in their examination-in-chief appears to be parrot like, while managing to reproduce the hearsay account into ocular account after present accused being father of deceased Mst, Noorzadi returned back to his home from Karachi after happening of the incident. To me, it appears that story is afterthought, managed in order to cover the murders committed within the jurisdiction of PW-1 complainant. Even otherwise, the version as put forwarded further appears to be managed as no efforts were taken by PW-I complainant to have asked or advised to Bajhi, brother of deceased Anwar Ali and Mst. Lal Khatoon, grandmother of deceased Mst. Noorzadi who on very day of incident received the dead bodies of deceased under receipts at Ex.22&Ex.23.
16. As notice above, I am of the considered view that ocular version as put forwarded by P.W-3 and P.W-4 is found not trustworthy to be believed for a prudent mind. "
4. In connected/offshoot case, acquittal was ordered by trial Court vide judgment dated 02.09.2020, for the following reasons:-
“15. In addition to the above contradictions, recovery was said to have been made from accused in the month of March at broad day timings at 1300 hours at three ways. Was it not possible for PW-1 complainant to have taken any efforts for procuring the attendance of private mashirs? Both mashirs were associated by him who were sub-ordinate to him. It is also now become settled law that evidence of police officials is as good as private PWs but evidence of police officials needs greater and careful scrutiny as they used to give such type of evidence in order to show their efficiency to their superior officers so also the fingers are being put upon them that they do such nature of job at behest of the complainant of main murder case. As reflected from the above material contradictions it can safely be stated that mashirs were made by the complainant who were sub-ordinate to him in order to give evidence in line with him but evidence of PW-1 complainant is totally inconsistent with PW-2 mashir. Therefore, PW-1 complainant while totally ignoring the mandatory provisions of Section 103 Cr.P.C has made the mashirs who were sub-ordinate to him, hence it is very much possibility of foisting of the case property upon accused in order to strengthen main murder case.”
5. Learned Additional Prosecutor General has contended that trial court failed to appreciate the evidence according to settled principles of law and judgments of the trial court are perverse in law.
6. We have perused the impugned judgments and re-appraisal of the evidence shows that prosecution case was based on spy information. On spy information the police officials proceeded to the house of the respondent, saw the respondent and absconding accused while committing murders of Mst. Noorzadi and Anwar Ali. The trial court while disbelieving the prosecution story has observed that ocular evidence as deposed by P.Ws 3 and 4 was untrustworthy and no prudent mind would believe it. The re-appraisal of the evidence shows that prosecution story was unnatural and unbelievable, for the reasons that it does not appeal to mind that respondent/accused waited for police to witness the occurrence. Police officials failed to associate private persons as mashirs. As regards the consideration warranting the interference in the appeal against acquittal and an appeal against conviction, in the case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585), Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-
“14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”
7. Learned Additional Prosecutor General could not satisfy the court that as to how the impugned judgments of the trial court are perverse in the law. There is no gross misreading of evidence, resulting in miscarriage of justice. Findings of acquittal recorded by trial Court are neither arbitrary nor perverse. Therefore, both the criminal acquittal appeals are without merits and same are dismissed in limine.
J U D G E