IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Acquittal Appeal No.D-13 of 2006

 

          Present:-

                                                          Mr. Justice Aqeel Ahmed Abbasi,J

                                                          Mr. Justice ShahnawazTariq,J

 

Mr. Muhammad Iqbal Memon Advocate for appellant.

Mr. Qurban Ali Malano Advocate alongwith respondents.

Mr. Abdul Rehman Kolachi, APG for State.

 

Date of Hearing              :         17.09.2015.

 

          JUDGMENT

 

SHAHNAWAZ TARIQ,J:-Through captioned criminal acquittal appeal, appellant Muhammad Auchar has impugned Judgment dated 03.02.2006, passed by the Court of learned Additional Sessions Judge, Gambat, in Sessions Case/Direct Complaint No.54 of 1999, titled Muhammad Aucharv. Muhammad Shareef and others, whereby accused persons were acquitted by extending them benefit of doubt.

2.      Relevant facts spelt out from instant appeal are that appellant Muhammad Auchar filed Direct Complaint against respondents under sections 302,201, 204, 148, 149, PPC, which reads as under:-

“Complainant and accused party are closely related to each      other and are at inimical terms over the land and such civil litigation was pending before the Court. Due to said enmity,         he was shifted to District Larkana.  Complainant was informed that on 31.05.1998, Amanullah and Abdul Ghani were irrigating water to their crop, meanwhile, accused namedabove alongwith 10/12 unknown persons armed      with lathies came there. At about 3.30 pm, accused Muhammad Sharif was armed with Kalashinkov, Shahzado with rifle and rest of the accused with guns, and they ambushed Amanullah and Abdul Ghani and started firing uponthem. On the firing, PWs Beg Muhammad, Manzoor, Muhammad Khan, Muhammad Ali and other villagers were attracted. All the accused chased Amanullah and Abdul      Ghani and within the sight of PWs and others,they made firing on Abdul Ghani who fell down, and then they chased Amanullah, and accused Muhammad Sharif fired burst of Kalashinkov on the face of Amanullah, who died on the spot. One person from accused party namely Ghulam Sarwar also expired and some other accused received injuries by firing of their companions. Thedead bodies were taken away by the accused party to show the attack by deceased persons. Complainant came to know about the incident after 3 days of occurrencethrough newspaper and thereafter, approached     the Police for lodging of FIR, but Police kept him on false hopes, therefore, he filed Petition before the High Court, but the same was withdrawn, hence instant direct complaint”.

3.      After conducting preliminary inquiry, complaint was brought on regular file. Charge was framed against accused persons vide Ex:30 to which they pleaded not guilty and claimed their trial.In order to prove his case, appellant has examined himself vide Ex:3 and his witnesses Muhammad vide Exh:4, Manzoor Hussainvide Exh:5, Muhammad Ali vide Exh:6 and Dr. Nazir Ahmed vide Exh:7 respectively and closed the side as Exh.8.

4.      Statements of accused persons under section 342 Cr.P.C. were recorded and they denied the allegations leveled by complaint and his witnesses and asserted that they are innocent. They further averred that on the day of incident, deceased Amanullah, Abdul Ghani and others had attacked on their village due to enmity and committed murder of Ghulam Sarwar and caused firearm injuries to Shehzado. Meanwhile, police came there and during exchange of firing between police and dacoits deceased Amanullah and Abdul Ghani were killed. They did not examine themselves on oath, but they examined Ali Khan and Sikandar Ali in their defence and they have fully supported the defence plea.          After hearing the arguments of learned counsel for the parties, learned trial Court acquitted accused person vide impugned Judgment.

5.      Learned Counsel for appellant contended that trial Court did not apply its judicial mind while passing the impugned judgment which is based on the misreading and non-reading of the evidence; that police did not lodge the F.I.R on the complaint of appellant, whereupon appellant filed Constitution Petition before High Court of Sindh for registration of F.I.R but same was withdrawn with permission to file direct complaint against accused persons; that trial Court considering the minor contradictions of appellant and his witnesses, acquitted respondents from the charge; that accused Mohammad Sharif lodged F.I.R. and admitted the commission of murder of both the deceased in their self defence but the trial Court did not consider said aspect of the case; that impugned judgment is liable to be set-aside and respondents may be convicted for the charge.

6.      Learned Counsel for the respondents vehemently contended that respondents are innocent and have been falsely implicated by the complainant with ulterior motives; that learned trial Court has rightly acquitted accused persons and instant acquittal appeal is liable to be dismissed; that evidence of complainant and PWs is contradictory to the opinion of doctor as no injury was caused to deceasedby Kalashnikov nor there was any sign of blackening; that deceased persons alongwith their companions attacked on the respondents’ village and committed murder of Ghulam Sarwar and caused injuries to Shahzado;that respondents along with co-villagers resisted the aggressors in their self defence,but appellant has concealed material facts from the Court; that allegations leveled in C.P filed by complainant are contradictory to the contents of complaints which proved the malafide intention of complainant; that ocular evidence is not supported by the medical evidence.

7.      Learned APG adopted the arguments advanced by learned Counsel for respondents and supported the impugned judgment and contended that instant acquittal appeal is liable to be dismissed.

8.      We have heard learned Counsel for the parties and perused the record minutely. For appropriate decision, we wouldliketo scanthe evidence led by the complainant and his witnesses.

(i)   The relevant portion of evidence of appellant Mohammad Auchar is re-produced as under:-

“We are on disputed terms with accused over landed property such cases of civil nature are pending in Courts. My elders and elders of accused Mohammad Sharif were share-holders in disputed land. During the pendency of civil suit, accused party registered case against us so I shifted to Larkana. On 31.05.1998,at about 3.00, p.m, Amanullah and Abdul Ghaniwere rotating waterin the land when all the accused duly armed came there and made firing upon my brother and nephew and they died on the spot. At the time of incident, I was present at Larkana and after three days, I came to know about the incident through newspaper. We approached the police and were informed that complaint was already registered anddead bodies were buried prior to our reaching.I filed Constitution Petition No.S-702 of 1998in the High Court for registration of FIRbutI was directed to file direct complaint. Accused party had also filed C.P. against me regarding the murder of GhulamSarwar, who has died during the occurrence. It is fact that I am not eye witness. I had filed direct complaint on the basis of information given to me by other persons. It is fact that deceasedAmanullah and Abdul Ghani were haris of Beg Mohammad and Mohammad Bux. In direct complaint, I have named 12 accused along with 10/12 unknown persons, who had participated in the incident. It is fact that 10/12 unknown persons were not mentioned in Constitution Petition. It is incorrect to suggest that I had stated in petition that I along with Manzoor, Beg Mohammad, Amanullah and Abdul Ghani, was presenton the agricultural land. On perusal of paragraph No.2 of the petition,it is mentioned that on 31.05.1998 at 1.00 p.m. petitioner along with Manzoor and Beg Mohammad, Abdul Ghani, and Amanullah were present on the agricultural land. It is fact that I had not given names of my witnesses Mohammad Khan and Muhammad Ali in Constitution petition. It is incorrect to suggest that deceased Amanullah and Abdul Ghani along with companions attacked on the complainant party.”

(ii)      The operative part of evidence of PW Beg Mohammad is re-produced as under:-

“On 31.5.1998,at 4:00 p.m, I was sitting in my otaq. Meanwhile, I heard fire shots from eastern side and I along with Mohammad Ali,Karam Ali, Mushtaque, Jabbar and other co-villagers,wentatthe spot. We saw accused Mohammad Sharifarmed with K.K.,Shahzado with rifle, Imdad empty handed, Banal, Rafique, Bhagioand Ali Dino with guns, and they were firing shots. We also saw accused Shahan with gun and his other villagers armed with weapons coming there and firing on Amanullah, Mohammad Yakoob and Abdul Ghani. 7 accused were already available at spot and firing shots on Amanullah and Abdul Ghani.Deceased Abdul Ghani fell down 150 paces away from the place of incident, while deceased Amanullah fell down 200 paces away from Abdul Ghani. Accused Sharif fired burst of K.K by putting K.K on his head. Brother of accused Shareef namely GhulamSarwarwas also murdered at the spot. Accused party taken away the dead bodies of Amanullah, Abdul Ghani and GhulamSarwarto their village. About 200/250 persons from the locality had gathered at the place of incident. Accused Sharif is Govt. employee. The firing continued for about 45 minutes.”

(iii)  The evidence of PW ManzoorHussain is re-produced as under:-

“About 8 years back, I was sleeping in my house. At about 3:00 p.m, I woke-up by my family members on fire shots. I rushed towards the firing. I found dead bodies of Amanullah and Abdul Ghani. People of locality gathered at the place of incident. I also saw dead body of GhulamSarwar,whileShahzado received gunshot injuries.I had not seen any other person except dead bodies at the place of incident. My co-villagers had also reached at the place of wardat.”

(iv)  The evidence of PW Mohammad Ali is re-produced as under:-

“About 7 and half years back, I was present at my house.At about 3:30 p.m, I heard fire reports and went there. I saw about 20 persons standing in the land of Mohammad Buxand identified 12 of them namely Imdad, Sharif, Shahzado, Rafique, Ali Dino, Bhagio, Bagh Ali, Fareedo, Zamir, ShahanBanal, Sharif armed with K.K, Shahzado armed with rifles and other were armed with guns. We saw Amanullah and Abdul Ghani running towards eastern side, while accused were following them. Accused Sharif made K.K fires upon Abdul Ghani who fell down, thereafter they followed Amanulah and accused Sharif made K.K fire upon Amanullah who died. PWs ManzoorHussain and Beg Mohammad were also with me. There is distance of about 200 paces in between my house and place of incident. 12 accused persons had followed the deceased, while remaining 7 accused encircled them. Deceased Amanullah and Abdul Ghani were my close relatives.”

(v)   MLO Dr. Nazeer Ahmed Mangiconducted post mortem of deceased Amanullah, GhulamSarwar and Abdul Ghani on 31.5.1998, and producedtheir reportsas Exs:7-A to 7-C respectively.The relevant part of evidence of MLO is re-produced as under:-

“The injuries to deceased Amanullah and Abdul Ghani were caused by shot gun. The pellets recovered from the dead body of deceased Abdul Ghani were delivered by me to police. The fires were made from the distance of about 50 yards.There was no injury on the person of deceased caused by Kalashnikov. There was no any sign of blackening on the dead body of deceased.”

 

9.      Complainant has examined 3 witnesses to establish his case, and out of them, complainant and Manzoor Hussain were not eye witnesses of the incident. While witnesses Beg Muhammad and Muhammad Ali are close relatives of complainant and disputed with accused persons as such theyare interested witnesses, and their statements were not corroborated by anyindependent witness of the vicinity though as per eye witnesses 200/250 persons were gathered at the spot. Appellant has failed to produce anysolid evidence regarding the occurrence of incident at the land of complainant party instead of the spot wherefrom the dead bodies were recovered by the police and such mashirnama of wardatand recoveries of dead bodies, was preparedand in absence of any tangible evidence i.e. blood marks and other connected evidenceor statement of any independent witness, the allegations of shifting of corpus from the land of complaint party to the place of present incident, could not be believed, which otherwise has invalidated the allegations leveled by appellant.

10.    During cross examination, appellant admitted that deceased Amanullah and Abdul Ghani were haris of PW Beg Mohammad and Mohammad Bux. Likewise, complainant in his Constitution Petition had not stated that 10/12 other unknown culprits had participated in the commission of offence along with nominated accused persons while in direct complaint, he has alleged that there were 10/12 unknown persons along with the nominated accused, and they werefiring upon deceased. Similarly, complainant in              his Constitution Petition had stated that on 31.05.1998, at 1.00 p.m., he himself along with Manzoor Hussain and Beg Mohammad, Abdul Ghani, and Amanullah, was present on the agricultural land, while in direct complaint, he has stated that he came to know about the incident after 3 daysof its occurrence through the newspapers. Complainantadmitted that he was not the eye witness of the incident, and filed instant complaint on the basis of information provided by others persons. Complainant did not mention in his petition that Mohammad Khan and Muhammad Ali had witnessed the incident, but in direct complaint, he has stated that Mohammad Khan and Muhammad Ali had witnessed the incident.

11.    Conversely, accused Muhammad Sharif lodged FIR No.37 of 1998, at P.S Gambat in respect of same incident asserting that Amanullah and Abdul Ghani along with their companions, had attacked on their village and committed murder of Ghulam Sarwar by firearm, while Shahzado sustained bullet injuries at the hands of both deceased aggressors, and in their self defence, respondents and other co-villagers made firing and in retaliation Amanullah and Abdul Ghani succumbed to their injuries at the spot which is near to the village of the respondents.

12.    S.100 P.P.C. provides the right of private defence of the body and property of a person and simultaneously puts certain restrictions while exercising such right against the assailant. It is well settled that law provides the right of self-defence to a person apprehending danger of his life or risk of causing grievous hurt against an invader but person exercising such right must be careful in modulating his act. In case of Muhammad Yar v. The State (2012 SCMR 1014), the honourable Supreme Court has observed as follows:-

“Law authorizes a man who is under a reasonable apprehension that his life or the life of another is in danger or there is a risk of grievous hurt, to inflict death upon the assailants but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self-defence.  Person exercising the right of self-defence must be careful in modulating his acts. Self Defence must be proportionate and commensurate with the quality and character of the act it is intended to meet and anything done in excess is not protected under the law. For self-defence the most important question was whether there was any reasonable apprehension of danger to the accused and he committed the act of violence in exercise of such right”.

 

In the case of Malik Waris Khan and another v. Ishtiaq alias Naga and others (PLD 1986 SC 335), the honourable Supreme Court has observed as follows:-

“The second, and a very salutary principle is that the degree and the imminence of the apprehension of threat to one’s persons or property is not measured by the injuries actually found in the end to have been inflicted. The exercise of the right itself interrupts the infliction of the injuries. The law recognizes this right of the defending persons by keeping statutorily his right one step above that of the person invading that right e.g, it extends to causing death, inter alia, where only grievous hut is apprehended or, of causing grievous hurt where only simple hut is apprehended. (sections 100 and 101, P.P.C). Further, the right commences “as soon as reasonable apprehension of danger o the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as such apprehension or danger to the body continues”(section 102, P.P.C).

In the case of Muhammad Akram v. The State (2012 SCMR 440), the honourable Supreme Court has observed as follows:-

“It is cardinal principle of law that in such like cases of two versions, one is to be believed in toto and not in piecemeal. This proposition of law is well settled by now as reflected in the case of Safdar Ali v. Crown (PLD 1953 F.C 93) wherein it has been held that in a criminal case it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence if, after examination of the whole evidence, the Court is of the opinion that there is reasonable possibility that the defence put forth by the accused might be true, it is clear that such a view re-acts on the whole prosecution  case. In these circumstances the accused is entitled to the benefit of doubt not a matter of grace but as of right because the prosecution has not proved is case beyond reasonable doubt. The aforesaid principle has been further elaborated in the case of Nadeemul Haq Khan and others v. The State (1985 SCMR 510).  Right of self-defence is recognized by law of he land but it is to be exercised if the circumstances so warrant as every citizen is entitled to resist the attack and defend himself and his property when he or    his property is faced with danger and when immediately the state machinery is not readily available. In a such situation the citizen is entitled to protect himself and his property.”                                       

13.    Indeed, deceased Amanullah and Abdul Ghani were haris of Beg Mohammad and Mohammad Bux. Witness Beg Mohammad is step brother of appellant and at the time of incident, he was sitting  in his otaq, alongwith Mohammad Ali, Karam Ali, Mushtaque, Jabbar and other co-villagers, and on fire shot reports, they went towar4ds the spot. He witnessed that accused Mohammad Sharif armed with K.K, Shahzada with rifle, Imdad empted handed, Banal, Rafique, Bhagio and Ali Dino with guns and they were firing shots. He also saw accused Shahan with gun and his other co-villagers armed with weapons coming there and making fires upon Amanullah, Mohammad Yakoob land Abdul Ghani; 7 accrued were already available at the place of incident and making fires upon both the deceased; accused Sharif fired burst by putting K.K. on the head of Abdul Ghani; about 200/250 persons from the locality had gathered at the place of incident. He has deposed new facts controverting the averments and statement of complainant which has created doubt about  veracity of his evidence. Moreover, Karam Ali, Mushtaque, Jabbar and other co-villagers also witnessed the incident but they were not included in array of witnesses by the appellant nor any application was moved before the trial Court to call them for recording their evidence to substantiate the facts of incident. Likewise, PW Mohammad Ali is close relative of both deceased, and has deposed new facts which are controverting the averments of direct complaiant, evidence of appellant and witness Beg Muhammad. He has stated that he saw 20 persons standing one the land of Mohammad Bux and identified 12 of them and with specific arms who followed both the deceased, while remaining 7 accused persons encircled the deceased.

14.    Moreover, ocular testimony is not corroborated with the medical evidence as appellant and witnesses have stated that accused Sharif fired burst of K.K on the face of deceased Abdul Ghani and Amanullah,which was controverted by the medical report that injuries were caused to both the deceased by shot gun and recovered pellets were given to police and there was no marks of blackening and charring on the corpus, thus, defence version is more preferable to be believed that both deceased along with their companions attacked on the village of accused and committed murder of Ghulam Sarwar brother of accused Sharif and caused bullet injuries to Shahzado during the incident, consequently, accused and other co-villagers in their self-defence made firing.

15.    We have scanned the averments of direct complaint, statements of appellant and witnesses and other material available on the record prudently which emanate that they have deposed the material facts in contradictory manners by adding different facts which have created serious doubt about the truthiness of his statement and conversely has falsified his allegations. Ocular testimony is suffering from material discrepancies, glaring contradictionsand also lacking confidencewhich are controverting to the averments of direct complaint and have changed the entire facts of the incident. There are series of inconsistent stances and  improvements which have shattered the credibility of witnesses. We have adjudged versions of complainant and accused in juxtaposition and version of accused is more believable and trustworthy as incident occurred near the village of accused persons and eye witnesses have admitted that co-villagers had also participated in the incident and they made firing upon the both the deceased.

16.    It is well settled that acquittal always carries double presumption of innocence in favour of accused. Principle of appreciation of evidence in appeal against acquittal is altogether different from that of appeal against conviction. Mere difference of opinion regarding appreciation of evidence is not a valid ground for interference with an acquittal of accused. Reliance is placed on the case of Azhar Ali v. State(PLD 2010 SC 632) and Muhammad Masha Kausar v. Muhammad Asghar and others (2003 SCMR 477).

17.    For the facts and circumstances referred supra, appellant has failed to point out any illegality or material irregularity and misreading of the evidence adduced by him by learned trial Court, hence impugned judgment does not call for any interference. Consequently, instant criminal acquittal appeal stands dismissed.    

These are the detailed reasons for the short order dated17.09.2015, passed by us whereby instant criminal acquittal appeal was dismissed.

 

 

JUDGE

JUDGE

 

 

 

 

Ihsan