IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Acquittal Appeal No. S-  41 of 2024.

Appellant:                             Sahib Khan Malik, through Mr. Inam-u-Rehman Abro, Advocate.

Respondents:                        1.         Raham Ali.

                                                2.         Mehrban.

                                                3.         The State.

Date of hearing:                    03.05.2024.

Date of judgment:                03.05.2024.

Date of reasons:                   04.05.2024.

Judgment

Shamsuddin Abbasi, J-.     This acquittal appeal is directed against the Order dated 15.4.2024 passed by learned Civil Judge and Judicial Magistrate Tangwani, in Criminal Case No.47 of 2023 re; State v. Raham Ali and another, arisen out of F.I.R No. 07 of 2023 Police Station Ghulam Sarwar Sarki, registered for offences punishable under Sections 337-A (i), 337-F (i), 337-H (2), 506 (2), 147, 148 and 149 P.P.C, whereby the learned trial Court has acquitted the accused/ respondents No.1 and 2 (Reham Ali and Mehrban) in terms of Section 249-A Cr.P.C. The appellant/ complainant being aggrieved and dissatisfied with the impugned order has filed instant appeal.

2.         The facts of case of the prosecution are described in para 2 of the impugned judgment and for the sake of convenience the same are reproduced as under:

            “Brief facts are mentioned in F.I.R that, complainant had a dispute with Raham Ali, Farman Ali, Rizwan Ali, Mehrban Ali and Ghamthar Ali, all by caste Malik over the issue of Karap. On 10.3.2023 at 08.00 a.m., complainant along with his brother Nawab Khan and son Kamran Ali Malik get together boarded on motorcycle for leaving him to School; when reached at Sui-Wall at about 08.30 hours; saw and identified accused every one Raham Ali, Farman Ali, Rizwan Ali, Mehrban Ali and Ghamthar Ali all by caste Malik, who caused injuries to complainant on his lower eye, so also right and left calf and issued threats of dire consequences, who raised cries on such cries passerby attracted there and on seeing them, accused Raham Ali made aerial firing in order to create fear and terror. Thereafter, all the accused fled away while issuing threats of murder. After the incident complainant went to police station, obtained letter for medical treatment went to RHC Tangwani, after treatment went to P.S and lodged F.I.R. After usual investigation SHO P.S Ghulam Sarwar Sarki submitted challan.”  

3.         It appears from the record that on completion of usual investigation, the case was sent-up by the police showing accused/ respondents No.1 and 2 as absconders. The co-accused Farman Ali faced the trial and ultimately he was acquitted of the charges vide judgment dated 17.6.2023 after full-fledged trial and case of accused/ respondents No.1 and 2 was bifurcated. Ultimately, the respondents No.1 and 2 joined the trial.

4.         The record further reflects that accused/ respondents No.1 and 2 filed an application under Section 249-A Cr.P.C before learned trial Court and vide Order dated 15.4.2024, the learned trial Court has allowed the same by acquitting the accused/ respondents No.1 and 2, which has been impugned through this appeal by the complainant.

5.         Learned counsel for appellant/ complainant mainly contended that, impugned order of acquittal of accused is patently illegal, erroneous, factually incorrect and resulted into miscarriage of justice, as such it is liable to be set aside; that learned trial Court failed to appreciate that there was sufficient evidence with prosecution connecting the accused/ respondents No.1 and 2 and that the observations of learned trial Judge are not based upon correct appraisal of material available on record. He lastly contended that the impugned order may be set-aside and the accused/ respondent may be remanded back for trial.

6.         A perusal of the impugned order reflects that the learned trial Court inter alia found that:-  

a. Apparently, the accused was challaned under Sections 506 (2), 337-H (2), 337-A (i), 337-F (i), 504, 114, 147, 148, 149 P.P.C.

b. During trial the prosecution had examined all material evidence, whereas co-accused Farman Ali son of Raham Ali by caste Malik of this case had already been acquitted by this Court under Section 245 (i) Cr.P.C, vide judgment dated 17.6.2023 on the basis of benefit of doubt, after appreciating every aspect of the prosecution case.

c. The present accused was declared absconder, therefore, his case was bifurcated and judgment was not pronounced against him.

d. All the witnesses of the case are same, as already examined by trial Court and if the accused is charged with the offence and trial commences their evidence will be the same against the accused, who was already acquitted from the case.

e. Therefore, dictates of justice and equity demands that on the evidence the co-accused had acquitted while relying upon the same evidence the present accused cannot be convicted.

f. There is no remote possibility of conviction of accused on the material available on record. Thus, there is no likelihood of conviction of accused in this case. Therefore, further proceedings would be abuse of process of Court.

7.         The learned trial Court in view of the aforesaid facts and circumstances, rightly believed that there was no probability of the accused/ respondents No.1 and 2 to be convicted of any offence and acquitted them from the charges while exercising powers conferred by the provisions of Section 249-A Cr.P.C.

8.         It appears that, as per case of prosecution, all the accused persons including respondents No.1 and 2 were attributed mostly the same role. And, it is matter of record that, in first round of proceedings the co-accused Farman Ali was acquitted by the learned trial Court vide its judgment dated 17.6.2023 by disbelieving and discarding evidence of prosecution witnesses. It is also matter of record that acquittal of co-accused Raham Ali has not been challenged by the complainant before any forum, which has already attained finality. Therefore, the trial Court seems to have rightly acquitted the accused/ respondents No.1 and 2 by invoking provisions of Section 249-A Cr.P.C. It is settled law that, if the evidence of eye witnesses have been disbelieved against some accused persons attributed effective roles then the same evidence of same set of eye witnesses cannot be believed against another accused person attributed a similar role unless such eye witnesses receive independent corroboration.

9.         The Hon’ble Supreme Court of Pakistan, in case of Imtiaz alias Taj v. The State and others (2018 SCMR 344) has held as under:

            “The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and a reference in this respect may be made to the cases of Ghulam Sikander v. Mamaraz Khan (PLD 1985 S.C 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2009 SCMR 6).

10.       When called upon to show any other illegality and infirmity in impugned order, particularly the points noted above, the learned counsel for the appellant/ complainant could not be able to point out any such infirmity and illegality.

11.       For the foregoing reasons and keeping in view the dictum laid down in case of Imtiaz alias Taj v. The State and others (supra), I, do not see any weight in the arguments advanced by learned counsel for appellant/ complainant and do not find any illegality in the impugned acquittal order, therefore, the instant appeal being devoid of merits was dismissed in limine vide short order dated 03.05.2024, and these are reasons for the same.

                                                Judge

Ansari