IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Crl.
Acquittal Appeal. No.D- 154 of 2016
Present:-
Mr.
Justice Yousif Ali Sayeed, J.
Mr. Justice Zulfiqar Ali Sangi, J.
Mr. Abdul Sattar N Soomro, Advocate for appellant.
Mr. Illahi Bux Miatlo,
advocate for accused/ respondents
Mr.
Khalil Ahmed Mairtlo, D.P.G.
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Date of hearing: 24.10.2023.
Date of judgment: 24.10.2023.
J U D G M E N
T
ZULFIQAR ALI SANGI, J; Through
captioned acquittal appeal the appellant/complainant Wali Muhammad son of Ahmed
by caste Soomro, has impugned the judgment dated 16.02.2015, passed by Anti
Terrorism Judge Sukkur, Special Case No. 105/2009 (Re-Wali Muhammad vs. Mir Muhammad @ Miro and others) culminating
from a direct complaint for offence punishable u/s 365-A, 395, 457 PPC &
7-ATA, whereby the respondents Mir Muhammad @ Miro, Maroof and Muhammad Moosa
were acquitted by extending benefit of doubt. Being aggrieved by the aforesaid judgment of acquittal, appellant
filed captioned Criminal Acquittal Appeal.
2. The crux of prosecution case, as unfolded
in the direct complaint filed by complainant/appellant Wali Muhammad is that on
23.03.2007, accused Mir Muhammad and Maroof were duly armed with Kalashnikovs
and four other accused were with open faces duly armed with pistols. The
complainant knew the accused by face but their names were not known to him. The
accused entered in the house of complainant at 03.00 a.m, after breaking the
compound wall. The complainant along with PWs Ali Gul, Ali Dost, Yaseen and
other family members woke up on the barking of dogs and identified the said
accused persons on the light of bulbs as they were well acquitted to the
complainant as their village was at the distance of 3 kilometers away from the
village of the complainant. Thereafter, all the accused made complainant party
hostage at the show of weapons and made dacoity of two buffaloes so also
abducted Yasin son of Wali Muhammad (complainant) for ransom and took away
abductee and buffaloes. In the meantime, accused Mir Muhammad and Maroof
demanded ransom amount of Rs.200,000/- from com the complainant for release of
Yasin (abductee) and threatened if he disclosed the fact to anybody or made any
complaint, the abductee Yasin would be done to death. On 23.03.2007, at 11.00
a.m, the complainant went at PS Khanpur Mahar where one ASI by caste Gadai was
present, to whom complainant narrated the facts and requested him to register
FIR, who replied that SHO is busy due to duty of 23rd March
(Pakistan Day) and said him to come on next day. Thereafter, on the next date
24 the March, complainant went at PS, where he met with SHO and narrated the
facts and request him to register the case but he said that he will have get
permission from his superior for registration of case, then he would register
FIR. Then complainant took Holy Quran to Zamindar of locality as well as
accused persons three times firstly on 02.04.2007, secondly on 09.04.2007 and
thirdly on 13.04.2007, but accused Mir Muhammad @ Morio and Maroof refused to
release the abductee Yasin without ransom amount of Rs. 200,000/- Ultimately, the
complainant arranged ransom amount of Rs.150,000/- and came at the accused
persons along with Holy Quran and paid the amount to the accused Mir Muhammad
and Maroof on 17.04.2007, at 08.00 a.m, in presence of Ali Gul and Ali Dost,
after accepting the ransom amount of Rs.150,000/- the accused Mir Muhammad and
Maroof released the abductee Yasin on the same date at 08.00 p.m. Thereafter,
abductee Yasin disclosed that he was confined at the house of Muhammad Moosa. On
18.04.2007, both accused sent the message for payment of Bhung for return of
buffaloes through PW Ali Gul. On 19.04.2007, complainant went to PS at 05.00
p.m, and met with SHO and requested him to register FIR but he abused the
complainant and refused him to register the case. Then the complainant had
filed Crl, Misc. Application for registration of FIR in Court of learned
Session Judge & Ex-Officio Justice of Peace Ghotki and obtained the order
and went at PS Khanpur Mahar, where his FIR was not registered then the
complainant moved contempt application against the concerned SHO, thereafter,
the FIR was lodged but SHO with malaf fide intention did not apply Section 7 of
ATA, 1997, in the FIR and finaly submitted challan before the learned
Magistrate Ghotki under section 380 PPC. The complainant challenged such
proceedings pending before Court and lastly approached this Court in Crl.
Revision Application No.03 of 2009 and the same was disposed of by leaving the
complainant at liberty to file direct complaint vide order dated 22.01.2009 and
the same was filed.
3. After Preliminary enquiry the complaint was
brought on regular file and necessary documents were supplied to the accused. The
charge was framed against the accused to which they pleaded not guilty and
claimed for trial.
4. At the trial, PW-01 Wali Muhammad (complainant),
PW-02 Ali Dost (eye witness) and PW-03 Ghulam Yasin (abductee) were examined.
They produced the relevant documents. The counsel for complainant then filed
application for closing the side.
5. Statements of respondents/accused were
recorded u/s 342 Cr.P.C wherein they claimed their false implication in this
case and denied the prosecution allegations. They neither examined themselves
on Oath nor led any evidence in their defence in disproof of the prosecution
allegations.
6. Trial court after hearing the learned
counsel for the parties and on assessment of evidence, by judgment dated 16.02.2015,
acquitted the accused/respondents as stated above. Hence, this Acquittal appeal.
7. Mr.
Abdul Sattar N. Soomro, learned advocate for the appellant contended that the
learned trial court has passed the impugned judgment without application of
judicious mind; that the offence is heinous one as all the accused persons were
well-acquainted to the complainant at their village hostage complainant party on the show of
weapons, made dacoity of two buffalos
and also abducted Yasin son of complainant for ransom and took away
abductee and buffalos on the pointation of deadly weapons; that the complainant
has witnessed the incident is sufficient to convict the accused. He further
contended that the trial Court did not appreciate the evidence according to the
settled principles of law. He also submitted that this acquittal may be
converted into conviction.
8. Conversely,
Syed Sardar Ali Shah, Additional Prosecutor General for the State assisted by
Mr. Illahi Bux Jamali, while
controverting the submissions of learned Counsel for the appellant, supported
the impugned judgment and submitted that the trial Court has rightly
appreciated the evidence and passed well reasoned and speaking judgment, which
does not require interference by this Court. They lastly concluded that the
prosecution has failed to prove the guilt of the respondents to the hilt, as
such the trial Court had no option but to acquit the respondents of the charge,
therefore, they prayed that instant acquittal appeal may be dismissed.
9. We
have heard learned counsel for the appellant, counsel for respondents and the
Addl.P.G, for the state and have gone through the material available on the
record with their able assistance.
10. We
have carefully examined the evidence of prosecution witnesses and the impugned
judgment. The trial court also assessed the evidence and found the same
unreliable, untrustworthy and of no confidence. Bare
perusal of impugned judgment reveals that “complainant in his evidence has
deposed that Mir Muhammad and Maroof kidnapped his son Yasin Ali @ Ghulam
Yaseen whereas Ghulam Yaseen (abductee)
deposed in his examination-in-chief that he identified of two persons having
K.Kovs as Mir Muhammad and Moosa Shar. Furthermore, eye witness Ali Dost
deposed that, they saw on the light of
bulbs, six persons were inside the house, however, in his cross examination he
deposed that cattle pond was at the distance of 40/50 paces away from their
house. It becomes doubtful whether the buffalos were taken away from the cattle
pond near the house or from the house. The complainant Wali Muhammad deposed
that on 18.04.2007 accused sent a man for payment of Rs.50,000/- may be paid
and then they would return the buffalos whereas in FIR lodged by the
complainant for the same crime, he stated that accused demanded Rs.25000/-. Under
such circumstances we are of the view that the prosecution has failed to
produce reliable, trustworthy and confidence inspiring evidence before the trial
Court. There were several other circumstances in the case which had created
reasonable doubt in the case. In the cases of circumstantial evidence strong
evidence is required for convicting the accused, which is lacking in this case.
It is settled law that the appreciation of evidence in the case of appeal
against conviction and appeal against acquittal are entirely different as held
in the case of Ghous Bux v. Saleem and 3 others (2017 P.Cr.L.J 836). In the
case of Muhammad Mansha Kousar v. 4 Muhammad Asghar and others (2003 SCMR 477)
the Supreme Court observed as under:-
“That the law
relating to reappraisal of evidence in appeals against acquittal is stringent
in that the presumption of innocence is doubled and multiplied after a finding
of not guilty recorded by a competent court of law. Such findings cannot be
reversed, upset and disturbed except when the judgment is found to be perverse,
shocking, alarming, artificial and suffering from error of jurisdiction or
misreading, non-reading of evidence… Law requires that a judgment of acquittal
shall not be disturbed even though second opinion may be reasonably possible”.
Similar
view was reiterated by the Supreme Court in the case of Muhammad Tasaweer v. Zulkarnain
and 2 others (PLD 2009 SC 53), in the following words:-
“Needless to
emphasize that when an accused person is acquitted from the charge by a Court
of competent jurisdiction then, double presumption of innocence is attached to
its order, with which the superior courts do not interfere unless the impugned
order is arbitrary, capricious, fanciful and against the record.”
11. For
the foregoing reasons and keeping in view the dictum laid down in the cases
(supra), we do not see any weight in the arguments advanced by learned counsel
for the appellant/complainant and do not find any illegality in the impugned
judgment of acquittal; as such the acquittal appeal is hereby dismissed along
with listed applications.
J
U D G E
J U D G E
Ihsan/*