ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

     Present:

                            Mr. Justice Shahid Anwar Bajwa &

                            Mr. Justice Muhammad Ali Mazhar

 

Cr. Acquittal Appeal No. D-24 of 1997

 

 

 

Lal Bux………………......……………………..…….Appellant

 

Versus

 

Dhani Bux and others.…..….…….……….…..Respondents

                       

Mr. Nizamuddin Baloch Advocate for the Appellant.

 

Mr. Khawand Bux Mahar Advocate for Respondent

No. 1 to 3

 

Mr. Zulfiqar Ali Jatoi, D.P.G for the State:

 

Date of hearing:                       08.2.2012

                       

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Muhammad Ali Mazhar J., The appellant has brought this acquittal appeal to assail the judgment dated 19.11.1997, passed by learned Sessions Judge, Naushehro Feroze in Sessions Case No. 78 of 1994, arising out of Crime No. 23 of 1994, lodged at Police Station Tharu Shah, under Sections 302, 324 & 34 PPC, whereby respondents No.1 to 3 were acquitted.

 

2. Concisely, the facts of the prosecution case, as stated by the appellant Lal Bux, are that on 9.5.1994, he lodged the FIR in which he stated that long time ago, his uncle Khan Muhammad blamed him KARO with his wife, due to which they were on inimical terms. On the day of incident, appellant, his cousins Sher Khan and Rahim Bux all were present in their houses when at about 9:30 a.m., someone called at the door. The appellant and his cousins Sher Khan and Rahim Bux came out from their houses and they saw that near their otaq, accused persons Dhani Bux having wooden piece of cot, Jumo and Sajjan were holding lathies. The accused persons stated as to why they were not making Faisela for the blame of Karap. Saying so, accused Dhani Bux inflicted injuries with wooden piece of cot to Sher Khan on his head and accused Jumo and Sajjan Panhwar caused lathi blows to Sher Khan and Rahim Bux on their head and other parts of body. They raised cries and the appellant started running. In the meanwhile, appellant’s uncle Haroon and cousin Hakim also rushed towards the place of wardat and they also saw accused persons inflicting blows. They beseeched the accused in the name of Holy Quran not to kill but they continued to cause blows to Sher Khan and Rahim Bux and they both fell down. The appellant further alleged that accused persons also tried to cause him blows but he saved himself by running away, thereafter, the accused persons left the scene of offence abusing the appellant party. The appellant with the help of above named P.Ws. brought his cousins in injured condition to P.S.Tharu Shah, where he lodged the FIR. The police referred to the injured persons to Medical Officer, Tharu Shah from where injured Sher Khan was referred to PMC, hospital Nawabshah, but in the way he succumbed to the injuries.

 

3. Charge was framed against the accused to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case examined PW/Medical Officer              Dr. Mushtaque Ali, P.W. complainant Lal Bux, P.W. Rahim Bux, P.W. Muhammad Hakim, P.W. Haroon, P.W/mashir Muhammad Daud, P.W, I.O. Ghulam Muhammad, and P.W, Tapedar Wazir Ahmed. Thereafter, side of the prosecution was closed.

 

4. Statement of respondents No.1 to 3 was recorded under Section 342 Cr.P.C. Respondent No.1 Dhani Bux also produced certified copy of judgment passed in        Cr. Case No. 21 of 1995. The said respondents did not examine themselves on oath nor led any evidence in their defence.

 

5. PW 1, Doctor Mushtaque Ali M.O RHC, Tharu Shah, deposed that on 09.05.1994 two injured Sher Khan and Raheem Bux were referred. The condition of Sher Khan was serious, hence he was dealt with first. The injured was bleeding from nose as well as ears on account of head injuries caused by some hard and blunt substance at the right temporal region. His X-Ray was taken immediately which revealed fracture of right temporal bone therefore he was referred to PMCH Nawabshah.  He examined another injured Raheem Bux and found five lacerated and one contused injury. On the same day, the dead body of Sher Khan was brought to the Hospital who died at about 2.00 P.M. Postmortem lividity was not available while rigor mortis started developing. On external examination only one injury on his person i.e contuse wound 7 cm diameter at right temporal region was found and on opening skull he found temporal bone fracture and all other organs of the dead body were normal and healthy.  The injury on the head was found to have been caused by some hard and blunt substance.  Besides above one more injury was found at the back side of left thumb being a lacerated wound 3 x 1 cm. The evidence of Medical Officer shows that only one injury was found on the head with one lacerated wound at the back side of left thumb. All the prosecution witnesses almost stated Dhani Bux gave injury with arm of cot on the head of deceased Sher Khan and other accused gave lathi blows to Sher Khan as well as Raheem Bux both. Ocular testimony is not corroborated by the medical evidence which is at variance. No lathi injury was found on the dead body of Sher Khan. The medical evidence contradicts the ocular testimony and creates doubts to its credence and trustworthiness.

 

6. PW 2, Lal Bux stated that deceased Sher Khan was his uncle and PW Rahim Bux was the brother of the deceased. He was sitting in his house he heard that   somebody was calling Sher Khan and Raheem Bux from outside. When he came out from his house, he saw that deceased Sher Khan and PW Raheem Bux came out of their house in response to the call. On seeing Sher Khan and Raheem Bux, accused Dhani Bux told them that they were not prepared for the Faisla for Karo Kari affairs; hence they would be killed. On saying so Dhani Bux gave injury with arm of cot on the head of Sher Khan and other two accused gave lathi blows to Sher Khan as well as Raheem Bux. On the commotion the complainant and his uncle Haroon and cousin Hakim also arrived there and intervened and beseeched accused in the name of Allah to desist from killing Sher Khan and Raheem Bux. To set the motive, the complainant stated that accused Dhani Bux and Jumo are brothers inter-se their another brother Khan had accused the complainant of having illicit relationships with his wife and for this reason they attempted to kill him prior to this incident and on this account the accused fought with his cousin. In the cross examination, he stated that the village consists of 7/8 houses. At the time of incident father of Sher Khan and his six sons including the deceased and PWs named above were residing together. He admitted that the village consists of all the relatives and no outsider or the person of other caste resides in their village. He further stated that the allegation of Karap was leveled against him by Khan about five years ago but he did not lodge any report against the accused person for the allegation leveled against him including the threats. He could not say how many injuries were caused by accused to deceased Sher Khan except the head injury. He further admitted that he could not count the injuries sustained by Raheem Bux. The incident continued for 15 minutes and no body from the village arrived except Hakim and Muhammad Haroon. The blood was oozing but due to ploughed land, the blood stained earth could not be taken. We have minutely considered the evidence of complainant through which it is clearly deducible that the allegation of Karap was against him but neither he was touched nor any injury was caused to him but the Sher Khan was murdered who apparently had no role to play in the matter. According to the complainant, Dhani Bux caused injury with arm of cot and other accused gave lathi blows to Sher Khan as well as Raheem Bux but no lathi blows were found on the person of Sher Khan in the Medical Evidence. The incident continued for 15 minutes and the complainant, his uncle Haroon and cousin Hakim were present at the place of incident but they did not try to overpower the accused persons who were only three in numbers and not carrying any fire arms weapons and after causing serious injuries at least 15 minutes, they were let free to escape by the complainant and his relatives from the scene which is quite abnormal and inconceivable. The village consists of 7/8 houses but except the complainant and his other relatives, no independent person/neighbor came out from his house. The evidence of complainant is not trustworthy. All the prosecution witnesses are related inter see. No independent eyewitness was associated. In the given circumstances, the presence of complainant seems to be doubtful at the place of incident.

 

7. PW 3 Raheem Bux deposed that deceased Sher Khan was his brother and PW Hakim is also his brother while Muhammad Haroon is his uncle. He repeated that his uncle Khan had accused Lal Bux for having illicit relationship with his wife and restrained him from allowing Lal Bux to visit their village. He further stated that PW Lal Bux was standing only two steps away from them. He further stated that he did not count injuries sustained by Sher Khan or even by him. He further admitted that nobody came from village except the PWs. Police recorded his statement after 5/6 days of the incident. To a question asked by the Court he replied that his statement under Section 164 Cr.P.C was recorded after 10/15 days of the incident. He further stated that PW Lal Bux was standing only two steps away from them. Again we have to see that allegation of Karap was against Lal Bux who was only two steps away but no injury was caused to him.

 

8. PW 4 Muhammad Hakim stated that he was present in his house when at about 9.30 am he heard the cries of his brothers Raheem Bux and Sher Khan and when he came out from his house he found his brothers above named that Dhani Bux Jumo and Sajjan were causing injuries to his brothers Sher Khan and Raheem Bux. In his cross examination he admitted that his uncle Khan accused Lal Bux of having illicit relationship with his wife and Faisla was made 2/3 days prior to the incident. Faisla was made on Holy Quran but he does not know its details. He further deposed that Lal Bux was standing at the distance of about 3/4 paces away from the deceased and injured when they arrived there. He further stated that he cannot say as to how many injuries were caused by the accused to the deceased and Raheem Bux. This witness has also said that Lal Bux was standing at the distance of about 3/4 paces away from the deceased and injured when they arrived there.

 

9. PW 5, Haroon stated that he was going towards the house of his brother Sajjan and when he reached near Otaq he found commotion and saw Dhani Bux, Jumo and Sajjan who were causing injuries with their respective weapons. He further stated that police did not record his statement. In his cross examination PW stated that the accusation was leveled against Lal Bux by Khan about six months prior to the incident. Lal Bux did not complain to any Nekmard nor was any Faisla made about the accusation. He further stated that Lal Bux was standing at the distance of about 8/10 paces away from the injured and accused and no body came from the village. He admitted that Sher Khan and Raheem Bux had no direct enmity with the accused except that with Lal Bux. The evidence of this PW makes it clear that the allegation of Karap was against Lal Bux who was never touched and instead of taking revenge from him, Sher Khan was murdered. He also stated that Lal Bux was away only 8/10 paces which shows that attempt could be made upon him who was actually declared Karap. It is clear from the statement that Sher Khan and Raheem Bux had no enmity with the accused, except Lal Bux who remained save throughout the fight and no attempt was made on him which seems to be irrational.

 

10. PW 6, Muhammad Daud deposed that he knows PWs Lal Bux, Hakim and Haroon and also knew the deceased Sher Khan who was his brother. He was mashir of wardat and co-mashir was Sadiq. He stated that there was no blood or foot prints as it was a hard ground, while the complainant stated that the blood was oozing but due to ploughed land, blood stained earth could not be taken. This witness further stated that accused Dhani Bux was arrested in his presence and mashirnama was prepared. He further stated that no recovery was effected from any of the accused in his presence. He produced mashirnama of recovery and stated that he cannot say if it bears his left thumb impression. The mashirnama Ex.P-15 and 16 were read out to him in open court but he stated that the contents are not correct. He stated that the contents of mashirnama P-17 are correct that accused Dhani Bux had produced one arm of the cot while Jumo                and Sajjan had produced lathies. In his cross examination he  stated that co-mashir Sadiq is his father. He further stated that Dhani Bux was arrested after 18 days of the incident and produced arm of the cot after about one week  from the date of his arrest and co-accused also produced lathies on the same date. He further stated that there was blood on the weapons produced by the accused. From this piece of evidence it is clear that no blood or foot prints were found at the place of incident. No recovery was effected from any of the accused in his presence. He denied his thumb impression on the mashirnama of recovery. He also denied the contents of mashirnama Ex.P-15 and 16. On one hand he stated no recovery was made in his presence but on the other hand he stated accused Dhani Bux had produced one arm of the cot while Jumo and Sajjan had produced lathies each of bubble tree and  blood was found on the weapons. The contradictory statement of the mashir makes the whole recovery in his presence doubtful and his evidence was rightly not found trustworthy by the learned trial court.

 

11. PW 7, Ghulam Muhammad deposed that on 9.5.1994, he was posted as ASI Police Station, Tharu Shah. He stated that on the  place of incident no foot prints were found but there was slight blood mark noted which were not secured. Mashirnama was prepared but blood marks could not be secured or sealed. On 27.05.1994 he arrested Jumo, Sajjan and Dhani Bux and on 05.06.1994 he conducted the search of the houses of the accused and prepared mashirnama. None of the weapons was stained with blood and he further admitted that since there was no blood on the weapons therefore, the same was not sealed. He further stated that both the mashirs of this case are close relatives of the deceased as Sadiq was his father and Daud was his brother. This piece of evidence shows that at the place of incident no foot prints were found but there was slight blood mark noted which were not secured. He admitted in his cross examination that none of the weapons was stained with blood. The mashir Daud stated that blood was found on weapons while IO said that there was no blood found. When the Sher Khan was brought to hospital in an injured condition, he was bleeding from nose as well as ears on account of head injuries caused by some hard and blunt substance at the right temporal region and his as X-Ray  revealed fracture of right temporal bone. The medical evidence shows heavy bleeding from head, nose and ears and according the PW case, the incident continued at least for 15 minutes. It is unbelievable that despite heavy bleeding no blood stained earth could be secured for chemical examination report which caused another dent to the prosecution case.  

 

12. The learned counsel for the appellant argued that the impugned Judgment is not sustainable. The learned trial court grossly erred and wrongly given benefit of doubt to the respondent Nos.1 to 3. It was also wrongly held that the motive was not proved while there was strong ocular testimony which requires no corroboration. It was further averred that the trial court failed to consider cumulative effect of ocular testimony, which was sufficient to establish the guilt of the above respondents. The prosecution beyond any shadow of doubt proved the case but instead of convicting the respondents above named, the learned trial court acquitted the respondents.

 

13. Conversely, the learned DPG supported the Judgment of the trial court and he further argued that there was inconsistency between ocular testimony and medical evidence and keeping in view the effect of entire evidence adduced by the prosecution, the trial court rightly acquitted the respondents.

 

14. On the contrary, the learned counsel for the respondent Nos.1 to 3 argued that there is glaring contradictions in the testimony of prosecution witnesses. The allegation of Karap was against Lal Bux and according to the ocular testimony, he was very much present at the place of incident but no injury was caused to him, which creates many doubts. It was further averred that all the prosecution witnesses are closely related to each other even to deceased and no independent witness from the village was produced by the prosecution in the court. The mashir of recovery in his statement stated that nothing was recovered in his presence. On the other hand, he stated that blood was found on the incriminating weapons but the I.O has stated that no blood was found on the weapons  recovered by him. The medical evidence is contradictory to the ocular testimony as besides one head injury and one lacerated wound at the back side of left thumb, no other injury has been pointed out in the postmortem report. He further argued that after considering the medical evidence and the evidence of prosecution witnesses, the trial court rightly acquitted the respondents, which does not deserve any interference.

 

15.   Arguments heard. An appellate court has full powers to review the evidence upon which the order of acquittal is founded and to reach to its conclusion as to whether on such evidence an order of acquittal should be reversed. A golden thread which runs through the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and other to his innocence, the view which favors to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. The principle to be followed by the appellate court considering the appeal against the conviction of acquittal is to interfere only when there are compelling and substantial reasons for doing so. It is well settled that if the view taken by trial court while acquitting the accused is possible reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the powers of the High Court in anyway curtail in appreciating the evidence on record in an appeal against acquittal but having done so, the High ought not to interfere with an order of acquittal if the view taken by the trial court is also reasonable view of evidence on record and finding recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse.

 

16. Taking into account the crux of plethora of case law developed by our own superior judiciary, the well settled principles for the appreciation of appeal against acquittal amongst others are:-

 

 

a.   That with the acquittal, the presumption of the innocence of the accused becomes double, initially, that till found guilty accused is innocent and secondly that after trial a court below confirmed the assumption of innocence.

 

b.  That unless grounds on which trial court had purported to acquit the accused were not supportable from evidence on record, the court would not interfere.

 

c.   That unless the judgment or acquittal is perverse and the reasons of acquittal are artificial and ridiculous, court would not interfere.

 

d.  That unless the conclusion recorded by a court below was such that no reasonable person would conceivably reach the same, the court would not interfere.

 

e.   That the court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose.

 

f.    Appellate Courts are loath to interfere unless it is established that, (i) misreading of evidence, (ii) lack of consideration of material evidence, (iii) reception of evidence illegally; (iv) violation of legal provisions; (v) jurisdictional defects; (vi) reliance placed on matters extraneous to the record; (vii) material witnesses for the prosecution were not recorded; (ix) the acquittal order on the face of it is contradictory; (x) the order of acquittal was passed without hearing the prosecution; (xi) the principles governing the appreciation of evidence have been violated; (xii) the acquittal judgment was based upon surmises, suppositions or conjectures; (xiii) acquittal is based upon reasons which do not appeal to a reasonable mind; (xiv) that there are gross misstatements appearing in the judgment under review.  (Ref: The code of Criminal Procedure by Shaukat Mahmood, Tenth Revised and Enlarged Edition. Legal Research Centre).  

 

 

17. Concomitantly, from the leading cases of courts of India, following general principles are deducible with regard to the powers of the appellate court in dealing with an appeal against an order of acquittal:

 

a.   In exercising powers, the appellate court will bear in mind relevant consideration such as (i) the presumption of innocence in favour of the accused, (ii) such presumption has been reinforced by an order of acquittal recorded by the trial court, (iii) trial court had the benefit of seeing witness in the witness box, (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by the trial court, (v) the right of the accused to the benefit of any doubt.

 

b.  If true reasonably probably and every balanced views are possible, the appellate court should not disturb the finding of the acquittal recorded by trial court.

 

c.   The different phraseology used in various decisions, such as to substantial and compelling reason, “good and sufficient cogent reasons”, “strong reasons”, etc are not intended to curtail powers of an appellate court in an appeal against acquittal and review the entire evidence and to come to its own conclusion.

 

d.  Fanciful remote possibilities must be left out of account. The possible view in favour of the accused must be ground merely reasonable probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim benefit of doubt. (Ref: C.K Thakker Criminal Procedure 2007.  Reference Rattan Lal and Dhiraj Lal’s Law of the Crimes 26th  Edition. Bharat Law House New Delhi).

 

18. It is the prosecution and not the accused who is obliged to clarify the position, when there is an apparent contradiction in medical report and ocular testimony then in those circumstances, medical evidence is to be preferred and further it would be highly dangerous to rely upon the evidence of such witnesses for the purpose of conviction. When an accused person is acquitted from the charge by a court of competent jurisdiction then, double presumption of innocence is attached to its order, with which, the superior courts do not interfere unless the impugned order is arbitrary, capricious and fanciful and against the record. Law relating to reappraisal of evidence in appeal against acquittal is stringent in that the presumption of innocence is doubled and multiplied after finding of not guilty recorded by a competent court of law. Such finding can not 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, non-reading of evidence. Law requires that a Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible. Reference can be made to 1983 SCMR 1992, PLD 1988 Karachi 521 and PLD 2009 SC 53.

 

19. It was held by the honourable supreme court in the case of Azhar Ali that appellate court should and will always give proper weight and consideration to the views of the trial court as to credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by his acquittal at the trial, the right of the accused to the benefit of any doubt and the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witnesses. High Court will not exercise jurisdiction under S.417, Cr.P.C. unless the judgment of trial court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. In exercising this jurisdiction High Court is always slow, unless it feels that gross injustice has been done in the administration of criminal justice, due to the incompetency, stupidity or perversity of trial court culminating into distorted conclusions. Mere difference of opinion regarding appreciation of evidence is not a good ground for setting aside an acquittal. Test of impossibility. Courts in such like difficult situations have often applied test of "impossibility" by asking question, whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place. Court would not interfere with acquittal merely because on reappraisal of evidence it comes to the conclusion different from that of the court acquitting the accused, provided both the conclusion are reasonably possible. Important test visualized in such cases is that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. (Ref: PLD 2010 Supreme Court 632).

 

20. After scanning and scrutinizing the entire evidence, we have reached to an unequivocal conclusion that the trial court rightly acquitted the accused persons and there is no case of any misreading and or non-reading of evidence is made out. It is well settled that any doubt arising in the prosecution case must be resolved in favor of accused and for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Burden to prove its case beyond reasonable doubt is purely rests upon the prosecution and such burden cannot be discharged by weakness found in the case of defence.

 

21. As a result of above discussion, the impugned judgment does not require any interference. The appeal is devoid of any merit and the same is dismissed.

 

 

Sukkur                                                            Judge

Dated. 9.5.2012                     Judge