HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.51 of 2011

Present: Mr. Justice Naimatullah Phulpoto

JUDGMENT

Date of hearing: 31.08.2012 .

Appellant: Abdul Ghani through Mr. Shaikh Amanullah Advocate .

Respondent: Mr. Mohan Lal D.D.P.P for State .

NAIMATULLAH PHULPOTO, J.-Through this acquittal appeal, appellant/ complainant Abdul Ghani has impugned the judgment dated 11.07.2011 passed by learned Additional Sessions Judge, Kandiaro in S.C.No.240/2006 State Vs. Ganj Bakhsh alias Ganjoo and another, whereby the learned trial court acquitted accused vide judgment dated 11.07.2011.

2. Brief facts leading to the filing of the instant appeal are that complaint has claimed that he was owner of the Tractor No.QAF-852 model 1978. The same was sold by him to accused Shah Bux in presence of P.W. Allah Ditto and accused Ganj Bux in the sum of Rs.180,000/-. It is alleged that accused Shah Bux paid Rs.10,000/- to him and promised for payment of the remaining amount within the period of 10 months. It is further alleged that accused Ganj Bux stood surety for remaining payment. It is alleged that on 22.10.2002, accused Ganj Bux alongwith co-accused Shah Bux went to the complainant and informed him that his Tractor has been taken away by the police suspecting to be the stolen property and demanded original documents from the complainant. It is stated that complainant supplied the original documents of tractor to the accused persons. On 17.05.2006 complainant alongwith P.Ws Allah Ditto and Qaimuddin was present at Lemon garden where it is alleged that both accused Ganj Bux alias Ganjo and Shah Bux appeared on a motorcycle. It was 4:00 PM, complainant made demand from accused for the payment of the remaining amount on which accused Ganj Bux instigated absconding accused Shah Bux, who made straight fire upon the complainant but it was missed. Complainant raised crises and accused while sitting on the motorcycle drove away. Complainant went to P.S Mehrabpur, where he lodged FIR of the incident vide Crime No.57/2006, under sections 324/114/34 PPC against accused persons.

3. During investigation accused Ganj Bux alias Ganjo was arrested but the police had failed to arrest co-accused Shah Bux and challan was submitted under the aforesaid sections. Case was sent up to the Court of Sessions and it was made over to learned Additional Sessions Judge, Kandiaro for trial. Accused Shah Bux was declared proclaimed offender, the case was ordered to be proceeded against him under section 512 Cr.P.C. Proceedings under section 187-188 Cr.P.C were concluded. Charge against accused Ganj Bux alias Ganjo was framed at Ex.03, to which accused pleaded not guilty and claimed to be tried.

4. At the trial, prosecution examined complainant Abdul Ghani at Ex.04, P.W-2 Qaim Din at Ex.05. P.Ws Allah Ditto and H.C Barkat Ali were given up. I/O was examined at Ex.07. Thereafter, prosecution side was closed. Statement of the accused Ganj Bux was recorded under Section 342 Cr.P.C at Ex.09, in which accused claimed his false implication in this case and denied the prosecution allegations. Accused has raised plea that he was previously residing at Shikarpur and shifted to Kandiaro and he has been falsely implicated in this case.

5. After hearing learned counsel for the parties, learned Additional Sessions Judge, Kandiaro acquitted Ganj Bux alias Ganjo while holding that prosecution has failed to substantiate accusation against the accused. Thereafter, present acquittal appeal has been preferred.

6. Mr. Shaikh Amanullah Advocate for the appellant contended that impugned judgment of the learned trial court is based on misreading of evidence, there was ocular evidence in this case and motive for the commission of the offence. It is also argued that trial court has disbelieved strong evidence without assigning sound reasons. Lastly it is argued that tangible evidence was produced reasonably connecting accused in this case.

7. Mr. Mohan Lal learned D.D.P.P for the state argued that learned trial court has properly appreciated the evidence and acquittal of accused Ganj Bux was neither perverse nor based upon misreading of evidence. He supported the judgment of the trial court.

8. It is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In case of Zaheer Din Vs. The State (1993 S.C.M.R 1628), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:-

“However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-

(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well accepted presumptions: One initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquittal will not carry the second presumption and will also thus lose the first one if on pints having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view while examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observations of some higher principle as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.”

9. Keeping in view the above guiding principles, I have scanned the prosecution evidence in this case. Complainant Abdul Ghani before trial court has deposed that he sold the Tractor to co-accused Shah Bux in the sum of Rs.180,000/-, but said Shah Bux only paid Rs.10,000/- as earnest money and promised to pay remaining amount within a period of a week and accused Ganj Bux stood surety for the payment of remaining amount. In the month of June 2006, complainant alongwith P.W Allah Ditto and Qaim Din saw both accused going on a motorcycle. Complainant party got the motorcycle of the accused persons stopped where the present accused instigated co-accused Shah Bux, who is absconding in this case, to kill the complainant. Thereafter, absconding accused fired upon the complainant but complainant was saved and the accused ran away. The complainant further deposed that he lodged the FIR of the incident. In the cross-examination complainant has admitted that fire was not repeated by the absconding accused and no injury was sustained by the complainant as he had fallen on the ground and present accused is above 70 years. It has also been admitted by the complainant that no empty was recovered from the place of vardat, however, enmity has been denied.

10. P.W-Qaim Din has given more or less the same episode of the incident that absconding accused fired upon complainant but fire was missed and that all was done at the instigation of the present accused. In the cross-examination P.W has replied that he had gone to the complainant to attend Niaz party. It has also been admitted by him that at the time of fire he was standing beside the complainant. It is also admitted that fire was not repeated and no injury was sustained by the complainant or P.W.

11. Another eye witness P.W Allah Ditto has not been examined by the prosecution. SI Shohab Akber has partly conducted investigation in this case and stated that on 08.06.2006 he had received copy of FIR of this case for initiating investigation. He visited the place of vardat on the same day at 6:00 PM shown to him by the complainant in presence of mashirs. He prepared mashirnama of vardat in presence of the mashirs namely Samoon Lashari and Faisal Thebo. On 09.06.2006, I/O recorded 161 Cr.P.C statements of P.Ws Allah Ditto and Qaim Din. Thereafter, he was transferred. In the cross-examination investigation officer has admitted that FIR of the alleged incident was recorded after 22 days of the incident. I/O has admitted that he did not recover any empty from the place of vardat, which is situated in a thickly populated area. I/O in cross examination has replied that SIO Abdul Hameed Abbasi had recommended disposal of the case in ‘B’ class, but the concerned Magistrate did not agree with the opinion/ summary of the I/O.

12. It was entire prosecution evidence, which was brought on record before the trial court. From the above evidence, it is crystal clear that prosecution case was highly doubtful. There was delay of 22 days in lodging of the FIR for which no plausible explanation has been furnished. Allegation against the accused Ganj Bux is that he instigated absconding accused to fire upon the complainant and such accusation against accused has not been substantiated through cogent and confidence inspiring evidence. Mere word of the complainant party in the background of the dispute over the payment of the Tractor was not sufficient for the trial court to record conviction in this case. I/O had also failed to collect empty from the place of vardat. On the conclusion of the investigation, the I/O had recommended the disposal of the case in cancel class. Prosecution failed to examine S.I.O Abdul Hameed, who had recommended the case for disposal in “B” class. Non-examination of investigation officer was also fatal for the prosecution. On reappraisal of prosecution evidence and scrutiny of the trial court record, it transpires that prosecution had failed to substantiate accusation or produce tangible evidence reasonably connecting the accused in this case. Finding of the trial court did not suffer from any impropriety, illegality or infirmity and the same is based on sound and cogent reasons warranting no interference by this court.

13. Therefore, I found no merit in the present criminal acquittal appeal and consequently it was dismissed. These are the reasons for the short order recorded on 31^st August 2012.

JUDGE