ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Cr.Acquittal Appeal No. 58 of 2011.
Present: Mr. Justice Shahid Anwar Bajwa
Mr. Justice Muhammad Ali Mazhar
Allah Diwayo.……………………………………………...Appellant
The State………………….. …….…….………………….Respondent
For the Appellant: Mr.Ali Gul Abbasi, Advocate.
For the State: Mr.Zulifquar Ali Jatoi, DPG.
Date of hearing: 13.12.2011
Muhammad Ali Mazhar-J. The appellant has brought this criminal acquittal appeal to assail the Judgment dated 07.09.2011, passed by learned III-Additional Sessions Judge, Mirpur Mathelo in Sessions Case No. 59/2007, arising out of Crime No.05/2007, P.S Ubauro lodged under Section 302, 143, 506/2 & 34 PPC whereby the respondent Nos.2 to 6 were acquitted.
2. The complainant Allah Dewayo lodged the FIR on 25.01.2007, in which, he inter alia stated as under:-
“I am farmer. My brother Mushtaque Ahmed aged about 34 years was residing with me and he was also a farmer. Few days ago, on the matter of children, accused Akber, Sikander, Iqbal and Ali Asghar were annoyed with my brother Mushtaque Ahmed and issuing threats that one day he will be murdered. About three months back, my brother Mushtaque Ahmed was outside the house, when at about 4.00 p.m, the above accused persons with intention of murder assaulted my brother Mushtaque Ahmed and caused brickbat and sotti blows, who raised cries and on his cries Javed Ali came there, who had also seen the accused while causing brickbat and sotti blows to my brother Mushtaque Ahmed. Accused Akber was causing brickbat blows to my brother on his head, while accused Sikander had caught hold my brother’s male organ and pressing it and accused Iqbal and Ali Asghar were causing sotti blows to him. We saw that my brother Mushtaq Ahmed was lying unconscious, we tried to take him up and serve him water, but he could not getup. We immediately brought him to Ubauro Police Station, where SHO Ubauro refused to register the FIR nor gave any letter for hospital and he pushed us out of the Police Station. Thereafter, we shifted our brother in a private hospital as such after treatment my brother regained his senses, but he was not speaking properly and continuously complaining that he is feeling pain in his head. Within three days he suffered from swelling and unable to drink or eat. As such we shifted our brother in Government hospital where the doctors told me that though your brother has injuries but till receipt of police letter, no treatment shall be provided to him, thereafter, we repeatedly approached the Police Station for registration of FIR and letter for treatment but SHO refused and threatened us to compromise with each, meanwhile, my brother died. We went to Police Station and narrated the facts that our brother has expired, who has been murdered by the above named persons and requested the police to issue letter for postmortem but police refused to issue any letter. Thereafter, the complainant moved an application before the Justice of Peace/Sessions Judge, Ghotki for issuing directions to register FIR and on his directions, FIR of the complainant was lodged after three months of the incident.”
3. The learned counsel for the appellant argued that the trial court has acquitted the respondent Nos.2 to 6 without considering the material available on record and the impugned judgment has been passed on misreading and non reading of evidence. He further argued that the ocular testimony had fully supported the case of prosecution and all the eye witnesses adduced that the accused caused injuries to the victim with brickbats and Soti blows and committed brutal murder. He further argued that so far as the postmortem and or medical evidence is concerned, complainant had stated in his examination-in-chief that he approached to the SHO and the Government hospital for treatment but they clearly refused and even after the death they did not conduct any postmortem, therefore being helpless person, the complainant buried the victim. He further argued that all prosecution witnesses were the natural witnesses and mere relationship of prosecution witnesses with the complainant and deceased is no ground for treating the witnesses interested.
4. The learned DPG simply referred to the medical evidence and argued that the impugned judgment has been passed by the trial Court after considering the entire evidence and material available on record.
5. The prosecution examined ASIP Aftab Ahmed, complainant Allah Dewayo, PWs Javed Ali, Ali Gohar and Doctor Dost Muhammad, Additional Medical Superintendent CMC Hospital, Larkana, who produced provisional exhumation and final report of deceased. The statements of accused Akber, Iqbal, Sikander, Ali Asghar and Abdullah were recorded under Section 342, Cr.P.C but all the accused denied the allegations and also stated that there was a matrimonial dispute, therefore, the complainant has involved them falsely. They neither called any defence witness nor examined themselves on oath.
6. The PW-1, Aftab Ahmed, SIO Police Station, Khenjoo stated that he received the papers of Crime No.05/2007 for investigation and he visited the place of incident on 25.01.2007, but he did not find out any incriminating article or evidence from the place of incident. He further deposed that neither the dead body was secured nor his postmortem was conducted, therefore, he made correspondence with the concerned authorities, thereafter, the body was exhumed and the postmortem was conducted and on the basis of postmortem report as well as the statements of defence witnesses, he recommended the case for disposal in ‘B’ Class on 08.08.2007. In his cross examination, he admitted that there were 40/50 houses situated in the village where the place of incident was located. He further admitted that the mashir Ali Gohar is the son of complainant and co-mashir Muhammad Umer is the brother-in-law of the complainant. He further deposed that in view of the final postmortem report issued by the medical board, there was no injury found on the dead body.
7. The complainant Allah Dewayo adduced that Police did not register his FIR on the ground that there was no visible injury on the person of Musthaque Ahmed nor there was any bleeding, therefore, they advised him to admit the victim in the Hospital for his medical treatment and he arranged the treatment of Mushtaque Ahmed privately but he succumbed to his injuries. He further stated that on the day of incident he was available at his home and Mushtaque Ahmed deceased was sitting outside of his house when accused Akber, Iqbal, Sikander and Ali Asghar came there and started commotion on which, he came out of his house and saw that Mushtaque Ahmed was lying on the ground and accused Akber was holding his hair and accused Sikander was pressing his male organ while accused Ali Asgher and Iqbal were having Soti in their hands and inflicting blows to said Mushtaque Ahmed. In the FIR the complainant stated that the injuries were caused by brickbats and sticks both while in his statement, he has stated that accused Ali Akber and Iqbal were inflicting lathi blows to his brother Mushtaque Ahmed.
8. The third prosecution witness Javed Ali appeared and stated that on the day of incident, he came towards the house of deceased Mushtaque Ahmed and saw that accused Akbar was inflicting injuries by means of brickbats to Mushtaque Ahmed. Accused Sikander was pressing his male organ and accused Ali Asghar and Iqbal were inflicting Soti blows to Mushtaq Ahmed. The statement of this PW is contradictory and incongruous. The complainant, Allah Dewayo stated in his evidence that accused Akber was holding hair of the Mushtaque Ahmed while prosecution witness Javed stated that Akber was inflicting injuries by means of brickbats. All the prosecution witnesses more or less pointed out some private Faisla reached between the parties but no such Faisla or any other documentary evidence has been produced in the evidence.
9. The ocular testimony whatever available on record shows different type of injuries, which were allegedly inflicted by the accused persons to the deceased such as injuries through brickbats, blows of Soti and pressing of male organ, which resulted the death of Musthaque Ahmed. The witnesses who adduced the ocular testimony are related to the complainant, which fact has been admitted in the evidence, therefore, the possibility of their being interested can not be ruled out. In order to ascertain whether the ocular testimony was inspiring confidence or not, we have to examine the corroborative evidence in the shape of postmortem report, which was produced by Doctor Dost Muhammad, Additional Medical Superintendent General CMA Hospital, Larkana who deposed that the Board was constituted for the exhumation of dead body of deceased Mushtaque Ahmed and such proceedings were conducted on 31.05.2007 at 11.am at Gharib Shah Graveyard, Ubauro. The grave of deceased Mushtaque Ahmed was identified by the complainant and Shaukat Ali, the cousin of deceased Mushtaque Ahmed. The doctor admitted in his evidence that during the exhumation report, which was prepared by the Board, no injury was found on any bone of the deceased. He further admitted that no injury was found on the skull of the deceased and from the exhumation report of the dead body, he deposed that the death of the deceased could be a natural death. He further admitted that there was no mark of violence on the body of Mushtaque Ahmed when the exhumation was conducted.
10. After going through the evidence relied upon by the prosecution, it can be safely concluded that ocular testimony is not inspiring confidence as it is quite strange to see the medical evidence that in spite of serious injuries allegedly inflicted upon the body of Mushtaque Ahmed through brickbats and Soti, no injury was found on his body and even the Doctor has opined that it was a case of natural death. The medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and medical examination. The medical evidence can never be primary source of evidence for the crime itself but is only corroborative which may confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapons used in the occurrence and it can not connect the accused with the commission of crime. According to MODI’s Medical Jurisprudence and Toxicology (Twenty-third Edition), Chapter-3 (Medical Evidence and Medical Witness). The medical evidence adduced by the prosecution, has great corroborative value. It proves that the injuries could have been caused in the manner alleged and death could have been caused by the injuries, so that the prosecution case being consistent with matters verifiable by medical science, there is no reason why the eyewitnesses should not be believed. The defence can make use of medical evidence to prove that the injuries could not possibly have been caused in the manner alleged or death could not possibly have been caused in manner alleged by the prosecution and if it can do so, it discredits the eyewitnesses. The doctors are experts in their own right and when they examine a person and give opinion, it does not normally mean that their opinion is not correct. In State of Haryana v Ram Singh, it was held that while it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-ŕ-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefore it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
11. The statement of the Doctor was neither disputed nor challenged by the prosecution and no attempt was made by the prosecution to ask any question in re-examination to clarify this matter. On the question of conflict between ocular and medical evidence, it was held by the Supreme Court in the case of Bagh Ali vs. Muhammad Anwar, 1983 SCMR 1992, that prosecution and not the accused is obliged to clarify the position, when there is apparent contradiction in medical report and ocular testimony, it was held that in the case of Sardar Baig v State, 1978 P.Cr.L.J 690 that if injured eye witness stands clearly belied by medical evidence, then in those circumstances, medical evidence is to be preferred and further it would be highly dangerous to rely upon evidence of such witness for the purpose of conviction. Reference can be made to PLD 1988 Karachi 521. In the case of Gul Nawab Khan v State reported in PLD 1980 Peshawar 193, it was held that generally the evidence of the Doctor is considered to be independent and more reliable and in case of conflict can be given preference over the ocular evidence. This is however, not always true and there is indeed no hard and fast rule that medical evidence has always to be preferred to ocular evidence. As a rule, the expert evidence whether medical or of ballistic expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence and is of not much significance in the presence of credit worthy evidence.
12. When the accused person is acquitted from the charge by a court of competent jurisdiction, then double presumption of innocent is attached to its order with which a superior Courts do not interfere unless the impugned order is arbitrary, capricious and fanciful. Law relating to appraisal of evidence in appeal against acquittal is stringent and presumption of innocence is doubled and multiplied after a finding of not guilty recorded by competent Court of law. Such finding can 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 and non-reading of evidence. Law requires that the judgment of an acquittal shall not be disturbed even though second opinion may be reasonably possible. Reference can be made to PLD 2009 SC 53.
13. In this case ocular evidence alone was not sufficient to connect the accused and if we consider the medical evidence in juxtaposition the presence of eye witnesses at the spot seems to be doubtful as the ocular testimony regarding the alleged injuries caused by the respondent No. 2 to 6 were neither corroborated nor in conformity with the medical evidence adduced by the Doctor. Prosecution had failed to bring home the guilt against the respondent Nos. 2 to 6 beyond any shadow of doubt. Therefore they were rightly acquitted by the trial Court and the acquittal order is based on sound and cogent reasoning with does not require any interference by this Court. It is also a well settled proposition of law that while examining defect in the order of acquittal substantial weight should be given to the finding of the lower Court whereby accused were exonerated from the commission of crime. Obviously approach with dealing that appeal against conviction would be different and distinguishable from appeal against acquittal because presumption of double innocence is attached in the later case.
14. On thorough reevaluation of evidence and the impugned judgment, we genuinely feel and convinced that prosecution could not substantiate the accusation reasonably connecting the respondent Nos. 2 to 6 with the crime in question. There is hardly any improprietory, illegality or infirmity in the impugned Judgment, which may warrant interference. This appeal was dismissed in limine by our short order dated 13.12.2011 and above are the reasons for the same.
Sukkur: Judge
Dated. 10.1.2012 Judge