THE
HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal
Appeal No.8 of 2019
Present: Mr. Justice Omar Sial
Mr. Justice Shamsuddin
Abbasi
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Appellant : Gul Muhammad son of Ahmed Khan through Mr. Mahmood Akhtar Qureshi, advocate
Respondents : Habib Syed and Rasheed Khan
through M/s Raja Masood
Ahmed Qazi & Ubedullah
A. Abro, advocates
The
State through Mr. Muhammad Iqbal Awan,
Additional Prosecutor General Sindh
Date of Hearing : 16.04.2026
Date
of announcement : 30.04.2026
JUDGMENT
Shamsuddin Abbasi, J.- Respondents,
namely, Habib Syed and Rasheed
Khan were tried by learned Additional Sessions Judge-IV, Karachi West in
Sessions Case No.405/2014, arising out of FIR No.66 of 2013, registered at P.S.
Jackson, for offences under Sections 302, 324, 34, PPC. After regular trial,
the respondents were acquitted of the charge vide judgment dated 03.12.2018.
2. Appellant/complainant Gul Muhammad, being dissatisfied with the impugned judgment
has filed this criminal acquittal appeal. Notice was issued to the respondents
as well as Prosecutor General Sindh.
3. Learned counsel for
appellant/complainant mainly argued that the impugned judgment of acquittal is
capricious and arbitrary and is against the law; that reasons given by the
trial Court are speculative and artificial in nature; that the findings arrived
at are based on misinterpretation of evidence and the conclusion drawn has
resulted in miscarriage of justice; that delay in lodging of FIR has been fully
explained; contradictions as pointed out by the trial Court were minor in
nature and acquittal recorded by the trial Court was unwarranted and it is
perverse in law.
4. Moreover, learned Additional Prosecutor
General Sindh has argued that the trial Court has rightly recorded the
acquittal in favour of the respondents as there was
delay in lodging of FIR for which no plausible explanation has been furnished. He
further argued that evidence of the eyewitnesses has been found by the trial
Court doubtful and there were material contradictions in the evidence of the
prosecution witnesses. Lastly, it is argued that the scope of the acquittal
appeal is quite narrow and limited and that the appeal is without merits.
5. After hearing the learned counsel for
the parties, we have carefully perused the acquittal judgment passed by the
trial Court. Learned trial Court has fully discussed each and every aspect of
the case and while appreciating evidence came to the conclusion that there was
delay in lodging of FIR for which no plausible explanation has been furnished;
that none reporting of incident in time to the Illaqa police by anyone from the
complainant party although they are six brother who used to sit on said shop on
different timings as disclosed by PW-2 in his deposition; none disclosure of
names of accused persons to police immediate after the incident despite the
fact that complainant had full opportunity to disclose the names of accused
when he was asked by PW-3 to record his statement and the attitude of the
complainant in this regard against normal human conduct clearly reflects that
present FIR against present accused was lodged after due deliberation and
consultation to drag them in this case in continuation of a series of earlier
FIRs/cases and none of the case had been proved against them. Learned trial
Court has mentioned the anomalies and weaknesses in the prosecution case made
the prosecution case doubtful. Attention of the learned counsel for the
appellant has been drawn to those contradictions but he could not satisfy the
Court. Trial Court has rightly held that there are several circumstances in the
prosecution case which have created reasonable doubt. A single doubt is
sufficient for recording the acquittal. Reliance has rightly been placed on the
case of Tariq Parvez vs. The State (1995 SCMR 1354).
6. Learned trial Court has recorded the
acquittal of the respondents for the following reasons:
“14. From the above record, two things, have been
clearly established first, that after the incident Illaqa
police was not informed by complainant party immediately. Second, PW-3 ASI Sabir who after receiving wireless message from the MLO had
visited hospital was not told any of the details of incident by present
complainant even the complainant who could have easily disclosed the names of
present accused kept silence which clearly showing the attitude of complainant
against normal human conduct. The complainant might had refused to record his
detailed statement due to his pre-occupation in treatment of his father but new
had stopped him from discloser of names of actual culprits involved in the
incident, if he was present and had actually seen the accused at the place of occurrence.
15. The
complainant (PW-1) and his brother Sakhi Jan (PW-2) both
have admitted that it was long standing enmity between them and the accused persons
and they had lodged number of FIRs against accused persons. They further
deposed that in one of their PIR No.267/2010, they had alleged rape of their
nice baby Sumaira aged about 7 years by father of
accused. Thereafter, they lodged another FIR No.380/2010 against same accused
persons for setting ablaze their mint truck whereafter
they lodged another FIR No.430/2010 for firing at their house. Then they lodged
FIR No.59/2013 against accused for throwing cracker (hand Grande) at their shop
and then they have lodged the present FIR.
16. In view
of the above, none reporting of the incident in time; and none discloser of
names of accused persons to police immediate after the incident in spite of the
fact that complainant had full opportunity and case to disclose their names
when he was asked by PW-3 to record his statement, and the attitude of
complainant in this regard against normal human conduct clearly reflects that
present FIR against present accused was lodged after due deliberation and
consultation to drag them in this case in continuation of a series of earlier
FIRs/cases and none of the case had been proved against them.
17. In his
evidence, complainant has produced a photocopy of one application addressed to
IGP Sind (Exh.5/1) allegedly made by his deceased father having some mark of
ink thereon giving impression of 3 thumb of the deceased cannot be considered
as valid evidence in absence of any other supporting corroborative piece of evidence
of moving this application to IGP Sindh and the same appears to have been
managed just to strengthen this case against accused.
18. Another
aspect, which cannot be lost of sight is that complainant and his brother both
have deposed that on firing of accused persons, mohalla
peoples had gathered at the place of incident. The mohalla
peoples were known to them but they cannot give their names who came to the
place of incident as they could not properly recognized them is again speaking
volumes of truth coming from the mouth of these star witnesses. It is really
surprising that despite the fact that peoples who had gathered at the place of
incident were well known mohalla people of
complainant and his brothers but they could not be recognized by them to
disclose their names. It is a matter of record that only complainant and his
brother have appeared as witness in this case and no other independent witness
from the vicinity was associated and produced before the Court.
19. During
his cross-examination, the 1.0 SIP Mukhtiar li Tanoli (PW-5) clarified that he had recorded the statement
under section 161 Cr.PC of one Roshan
Deen from the vicinity but did not make him as
witness in the charge-sheet for the reason that complainant party had launched
a protest by getting their men assembled at Netty
Jetty bridge and they further threatened him for committing suicide in front of
police station, in case, if he would have made Roshan
Deen as one of the witnesses in this case. Even, the
complainant party went up to the level of DIG in this regard. Considering this
difficulty of 1.0 to make any one who was appearing material witness in this
case, this Court, played its inquisitory role to
bring the truth on surface and after hearing both the sides, passed an order for
producing Roshan Deen as
Court witness.
20. In
compliance of the Court's Order, CW-1 Roshan Deen appeared in the witness box and deposed as follows:
"I was familiar with the deceased Haji Ahmed Khan
of this case for the last about 20 years; as for sometimes, he was also an
employee at KDLB (the place where witness works) as such I knew him very well.
On the day of incident, I was sleeping in my house. It was about 09:00 to 09:15
a.m. time. I further state that Haji Ahmed Khan had his shop of flour/Aata in my mahalla at that time.
I woke up after hearing fire reports in the street. I came to the ground floor
in the street where son of the deceased namely Kamal told me that his father
had sustained firearms injuries and he was injured at that time to whom they
had taken away to hospital. On my reaching there neither I saw the culprits
involved in this murder nor the injured deceased Haji Ahmed Khan available.
Whatever I had heard, it was from the mouth of Kamal"
21. In his
cross-examination, L.O deposed that he had asked the complainant to produce his
brother Kamal for recording his statement but complainant did not produce him.
Even, he (1.0) approached to the residence of Kamal but it was replied that
complainant did not want to make his brother Kamal as witness in this case.
22. The
insistence of complainant not make any person (Roshan
Deen) as witness up to the extent that in case of
making him as witness they would commit suicide in front of P.S or refusing to
get the statement of his real brother Kamal recorded in this case who as per
deposition of CW-1 Roshan Deen
was one of the persons available at the place of incident and could have made
discloser of the incident, appeared to the complainant detrimental to his story
of alleged involvement of accused in this case; were resisted to keep them away
from this case, is clearly showing mala fide on the part of complainant.
23. Coming
to the fateful day, the complainant deposed that on reaching at the place of
incident, accused Rasheed Khan armed with Pistol
started firing on all of them due to which his deceased father sustained three
bullet injuries. Three other co-accused along with Rasheed
Khan also opened fire. They were sitting on plastic chairs with space of about
3 feet from each other inside their shop of having area of 17 x 30 feet. There
is a footpath of about 6/7 feet in between road and their shop. The accused
fired from the distance of 4/5 feet by coming on footpath, by leaving their
motorcycles at road. Their deceased father was sitting in the chair behind the
table. During his cross-examination, complainant admitted that no mark of
bullet was found on table of his father. 1.0 admitted that he did not find
marks of bullets shots at any place, neither on any bag or walls. 1 have seen
the three photographs Exh.3/C-1 to 3/C-3 of place of occurrence taken on same
day and these photographs easily defining crime scene, where no place to hid is
available and it cannot be said that one could save himself going on back side
of any flour bag. On the contrary, on view of these photographs of crime scene,
inference can reasonably be drawn that at the time of incident, the person
available in the shop was only deceased Haji Ahmed Khan otherwise, there
existed no possibly of saving any other person from indiscriminate firing of
four accused persons. In these circumstances, I am of the considered view that
prosecution has miserably failed to prove its case against present accused
beyond shadow of doubts hence, these points are replied as doubtful and
negative.
24. In view
of the above discussion, I am of the considered view that prosecution has
failed to bring home guilt of accused beyond shadow of doubt. Accordingly, the
accused Habib Syed son of Mian
Syed and Rasheed Khan son of Sarbuland
Khan are acquitted from the charges of this case u/s 265-H (1) Cr.PC by extending them benefit of doubt. Accused Habib Syed is present on bail. His bail bond stands
cancelled and surety discharged. Co-accused Rasheed
Khan is produced in custody. Let such intimation of his acquittal be sent to
superintendent prison with directions to release him forthwith if not required
in any other case. The case of absconding shall remain on dormant file.”
6. The scope of interference in appeal
against acquittal is most narrow and limited, because in an acquittal the
presumption of innocence is significantly added to the cardinal rule of
criminal jurisprudence that
an accused shall be presumed to be innocent until proved guilty. In other
words, the presumption of innocence is doubled as held in the case of The State v. Abdul Khaliq and
others (PLD 2011 Supreme Court 554). Relevant portion is reproduced as under:-
“From the ratio of all the above pronouncements and
those cited by the learned counsel for the parties, it can be deduced that the
scope of interference in appeal against acquittal is most narrow and limited,
because in an acquittal the presumption of innocence is significantly added to
the cardinal rule of criminal jurisprudence, that an accused shall be presumed
to be innocent until proved guilty; in other words, the presumption of
innocence is doubled. The courts shall be
very slow in interfering with such an acquittal judgment, unless it is shown to
be perverse, passed in gross violation of law, suffering from the errors of
grave misreading or non-reading of the evidence; such judgments should not be
lightly interfered and heavy burden lies on the prosecution to rebut the
presumption of innocence which the accused has earned and attained on account
of his acquittal. It has been categorically held in a plethora of judgments
that interference in a judgment of acquittal is rare and the prosecution must
show that there are glaring errors of law and fact committed by the Court in
arriving at the decision, which would result into grave miscarriage of justice;
the acquittal judgment is perfunctory or wholly artificial or a shocking
conclusion has been drawn. Moreover, in number of dictums of this Court, it has
been categorically laid down that such judgment should not be interjected until
the findings are perverse, arbitrary, foolish, artificial, speculative and
ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason
that on the re-appraisal of the evidence a different conclusion could possibly
be arrived at, the factual conclusions should not be upset, except when
palpably perverse, suffering from serious and material factual infirmities. It
is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court
being the final forum would be chary and hesitant to interfere in the findings
of the Courts below. It is, therefore, expedient and imperative that the above
criteria and the guidelines should be followed in deciding these appeals.”
7. For the
above stated reasons, there is no merit in the appeal against acquittal.
Finding of the innocence recorded against the respondents/accused by the trial
Court are based upon sound reasons which require no interference at all. As
such, the appeal against acquittal is without merit and the same is dismissed.
J U D G E
J
U D G E
Gulsher/PS