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.

          *******************

 

 

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/*