IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Crl.
Acquittal Appeal. No.D- 10 of 2022
Present:-
Mr.
Justice Yousuf Ali Sayeed, J.
Mr. Justice Zulfiqar Ali Sangi, J.
Date of hearing: 05.12.2023
Date of judgment: 05.12.2023
Mr. Abdul
Salam Shaikh, advocate for appellant
Mr.
Imran Mobeen Khan, APG
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J U D G M E N T
ZULFIQAR ALI SANGI, J; Through
captioned acquittal appeal the appellant/complainant Muhammad Hassan Solangi has
impugned the judgment dated 25.03.2022 passed by 1st Additional
Sessions Judge Naushehro Feroze, in Sessions case No. 394/2016 (Re-Dhani Bux and others) culminating
from FIR No. 111/2015 for offence punishable u/s: 302, 324, 201, 148 PPC,
whereby the respondents Dhani Bux @ Phoro son of Ali Hassan, Ghulam Abbas son
of Faqeer Muhammad, Meer son of Raheem and Riaz Ali son of Mehar Solangi were
acquitted by extending them benefit of the 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 FIR lodged by the appellant/complainant Muhammad Hassan is that on
05.12.2006, complainant forbidden Raheem Brohi, who along with his family
shifted to his leased land not to graze cattle/sheep at his farmland and
further asked him that his family should not use the hand pump for drinking
water, to which he became annoyed with him. On 10.12.2015, complainant’s son and
maternal nephew namely Rashid Ali and Athar Ali @ Mitho respectively, stayed at
his farm/leased land to look after the crushing machine installed thereof for
the purpose of crushing sugarcane. The complainant after bringing night meal to
them, returned and afterwards they both went to sleep. When complainant along
with Mazhar Ali and Ali Raza came to them on next day in morning, he found his
son Rashid Ali lying injured and unconscious who was bleeding from ear and nose
and his maternal nephew Athar Ali was found missing having blood on his bed.
Complainant party saw footprints of six persons there. The injured Rashid Ali
was taken to Darbelo Hospital for treatment, who was seriously injured,
therefore, referred to Civil Hospital Naushehero and then JMPC Karachi. The
complainant party tracked the footprints which led them towards the house of
Raheem Brohi where Abdul Kareem son of Raheem Brohi, Mir Hassan son of Ramzan
Brohi, Nadir son of Wahid Bux Brohi met who asked that as to why they
restrained them from using hand-pump and grazing cattle in farmland, then they
returned and went to search Athar Ali. On 14.12.2015, the children of their
village informed complainant that some foul smell was there in debris of banana
leaves in the land of Wadero Adam Memon and the dogs were there around said
place. Complainant, his witnesses along with villagers went there and found
dead body of Athar Ali was lying whose neck was cut with some sharp cutting
weapon and some incised wound on other parts of his body. Such information was conveyed
to police who came and after completing formalities shifted the dead body to
Hospital for postmortem. After postmortem of deceased Athar Ali, complainant went
to police station and lodged FIR against accused Raheem Brohi, Abdul Kareem
Brohi, Mir Hassan Brohi, Nadir Brohi and two un-known persons, subsequently, injured
Ali could not survive and succumbed to his injuries on 23.12.2015.
3. During investigation, complainant
appeared at police station before the I.O on 03.02.2016 and got recorded his
further statement wherein he exonerated nominated accused Raheem Bux, Abdul
Karim, Mir Hassan Brohi and Nadir Brohi and on the basis of such statement,
accused named above were discharged U/S 169 Cr.P.C. Subsequently, on 29.06.2016
complainant along with PWs Ali Raza and Mazhar Ali appeared before IO and got
recorded another further statement wherein they introduced and implicated
respondents/accused Dhani Bux @ Porho, Ghulam Abbas, Meer and Riaz Ali all by
caste Solangi as accused, in the commission of offence.
4. After usual investigation, the case was
challaned. By completing legal formalities, the trial Court framed the charge
to which accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove the
case, the prosecution has examined 10 witnesses who all produced certain
documents and items in support of their evidence. Thereafter, the side of the prosecution was
closed.
6. The accused/respondents were examined in
terms of Section 342 Cr.PC, wherein they had denied the allegations leveled
against them and pleaded their innocence.
7. Trial court after hearing the learned
counsel for the parties and on assessment of evidence, by judgment dated 25.03.2022,
acquitted the accused/respondent as stated above. Hence, this acquittal appeal.
8. The learned counsel for the appellant
contended that prosecution has proved its case beyond a reasonable doubt against
present accused by producing reliable and trustworthy evidence; that all the
PWs were subjected to the test of cross examination despite nothing favourable to
accused could be extracted from them; that death of the deceased has been fully
established by Medical Officer in his evidence meaning thereby ocular account
was fully supported by medical evidence; that the offence is heinous one as the
son and nephew of the complainant were brutally murdered by the
respondents/accused by causing injujries to them through sharp cutting
articles; the learned trial court has passed the impugned judgment without
application of judicious mind. Lastly, contended that the trial Court did not
appreciate the evidence according to the settled principles of law, therefore,
this acquittal appeal is liable to be allowed.
9. Conversely, learned Additional Prosecutor
General for the State argued that there is no any eyewitness of the incident; that names of the
respondents/accused does not transpires in FIR, however, they were implicated through
supplementary statement which was recorded on 29.06.2016, after the delay of 7
months and 19 days; that no source of information in respect of the involvement
of accused in the commission of offence has been disclosed; that there is no
direct or indirect evidence available on record through which guilt of accused
could be deduced, that there are major contradictions in
the evidence of prosecution witnesses; that the trial Court has rightly
appreciated the factual as well as legal aspects of the case while acquitting
the respondents/accused. Lastly, he submitted that respondents/accused were
rightly acquitted by the trial Court and prayed that appeal of appellant/complainant
may be dismissed.
10. We have heard learned Counsel for the
appellant/complainant, learned A.P.G for the State and have examined the record
carefully with their able assistance.
11. We have carefully perused the prosecution
evidence and impugned judgment passed by the trial Court dated 25.03.2022. It
is observed that the incident is an unseen incident. It is apparent from FIR the
complainant nominated the accused Raheem Brohi, Abdul Karim Brohi, Mir Hassan
Brohi and Nadir Brohi on the basis of foot prints but during investigation he
appeared before the IO and got recorded his further statement wherein he
exonerated nominated accused, resultantly they were discharged U/S 169 Cr. P.C.
Thereafter on 29.06.2016, after
the delay of 7 months and 19 days he recorded another supplementary statement wherein
he disclosed the names of the present respondents /accused without disclosing source
of information except alleged admission of accused which has no sanctity under
the law.
This improvement clearly shows that supplementary statement was made after due
consultation and deliberation to falsely involve the accused. In case of Muhammad
Rafique and others v. The State and others (2010 SCMR 385), the Supreme
Court has held that “Improvement made by
complainant had created serious doubt about his veracity and credibility.
Complainant had made his supplementary statement after due consultation and
deliberation to falsely involve the accused. Other eye witnesses had also
improved their statements in Court on various material points”. In this
case the appellant/complainant has recorded his supplementary statement with
consultation and due deliberation hence, the credibility of further statement
of complainant in this case does not arise at all. To sustain conviction in an
offence of capital punishment evidence of unimpeachable nature was required
which was not available in this case. Prosecution failed to produce reliable
evidence before trial Court. Trial court for sound reasons disbelieved
prosecution evidence. There were several circumstances in the case which had
created reasonable doubt in the prosecution case. In the cases of
circumstantial evidence strong evidence is required for convicting the accused,
which is lacking in this case. Even complainant party has failed to prove
sinister motive against accused/respondents to strengthen his case.
12. Moreover, 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). Judgment of acquittal should not be interjected until
findings are perverse, arbitrary, foolish, artificial, speculative and
ridiculous. The scope of interference in appeal against acquittal is narrow and
limited because in an acquittal the presumption of innocence is significantly
added to the cardinal rule of criminal jurisprudence as the accused shall be
presumed to be innocent until proved guilty. In other words, the presumption of
innocence is doubled as held by the August Supreme Court of Pakistan in the
case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court
554).
13. It is well settled that High Court can only
interfere in an appeal against acquittal if the view of learned trial judge is
either manifestly perverse on facts or vitiated in law. If the view taken by
the trial judge can reasonable be said to be arrived at, this court does not
substitute it with its own view as held in the case of The State v. Abdul Khalique and
others (PLD 2011 Supreme Court 554). Moreover, principles for
appreciation of evidence in appeal against acquittal are different from the
appeal against conviction.
14. For the above stated reasons, there is no
merit in the instant appeal against acquittal of the respondents/accused. Acquittal
recorded by trial Court in favour of respondents/accused named above in
impugned judgment dated 25.03.2022 is based upon sound reasons, which require
no interference. As such, the appeal against acquittal being without merits is
dismissed.
J U D G E
J U D G E
M. Ali/steno