IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

CriminalAcquittal Appeal No.D-08 of 2013

 

DATE OF

HEARING

 

                   ORDER WITH  SIGNATURE OF  JUDGE

 

 

Date of Hearing:             03.09.2015.

Date of Order:                29.10.2015

 

Appellant Jan Muhammad present in person.

Mr. Muhammad Akram Jhamat Advocate alongwith respondents.

Mr. Zulifquar Ali Jatoi DPG for State.

                  

                   JUDGMENT

 

SHAHNAWAZ TARIQ,J:-Through captioned criminal acquittal appeal, appellant Jan Muhammad has impugned Judgment dated 19.12.2012, passed by the Court of learned Sessions Judge, Khairpur, in Sessions Case No.262 of 2002, whereby accused persons were acquitted under Section 265-H, Cr.P.C alongwith absconding accused Mst. Hasina by extending benefit of doubt.

2.       The relevant facts narrated inFIR are that appellant Jan Muhammad lodged the FIR on 14.08.2001, at Police Station ‘A’ Section, Khairpur, under Section 302, 201, 148, 149, PPC, which reads as under:-

“Complaint is that my son named Khalil Ahmed was aged about 14/15 years and about 3/4 days back my son had gone with my mother Mst. Sabhai for taking medicines from City Hospital, Khairpur due to his illness, where frommy son left my mother at City Hospital, Khairpur and went away and my mother returned back alone at home from whom I enquired that Khalil Ahmed has not come and she told that from City Hospital, Khairpur, he was taken by persons namely Mst. Haseena wife of Ali Muhammad Magsi, 2.Mst.Sakina wife of Rab Nawaz, 3.Rab Nawaz son of Ali Bakhsh, 4.Muhammad Urs son of Ali Bakhsh, 5.Abdullah son of Rab Nawaz, 6.Raza Dino son of Mevo, 7.Mevo son of Allah Wassayo, 8.Abbas Dino son of Mevo, 9.Muhammad Urs son of Khan Muhammad, 10.Raza Dino son of Rab Nawaz, 11.Muhammad Sulleman son of Gulzar, all by caste Chandia, 12.Ghlam Muhammad son of BahadurKhoso resident of TandoMasti and Mari TalukaKhairpur, 13.Imam Dino son of MevoChandio,all had revolvers in their hands and Mst.Haseena wife of Ali Muhammad Mangi is resident of Province of Balouchistan whose marriage was previously solemnized with my brother Gul Bahar and my brother had previously moved telegrams and applications to so many officers that my son Khalil Ahmed was taken to the house of Mst. Haseena by above named accused in collusion with each other due to above matrimonial dispute from City Hospital, Khairpur, and have murdered him in the Province of Balochistan and in order to conceal the deadbody, the same was thrown near Sikandar minor at seepage drain and which was recovered by the Police of P.S. Jaffarabad and his deadbody was shifted by PC/476 Muhammad Anwar Rahoojo from P.S. Jaffarabad to my house and I have brought the deadbody of my son Khalil Ahmed at P.S. I am complainant and justice be done”.

3.       After completion of investigation, Police submitted challan against 10 accused persons to face their trial before the Court of law.

4.       During the proceedings of the case, accused Raza Dino son of Mevo and accused Raza Dino son of Rab Nawaz were expired, therefore, proceedings against them were abated and accused Mst. Sakina was declared as proclaimed offender.

5.       Formal charge against accused persons was framed under section 302, 364, 506(2), 324 201, 148, 149, PPC as Exh.6 to which they pleaded not guilty and their pleas were recorded vide Exh:7 to 16 respectively.

6.       In support of its case, prosecution has examined PW-1 Dr.Saleem Ahmed Medical Officer vide Exh:17, who produced chemical report, Danishnama, medical certificate vide Exh:17-A to 17-C respectively, PW-2 complainant Jan Muhammad vide Exh:18, who produced FIR and receipt vide Exh:18-A and 18-B, PW-3Mst. Sabahi vide Exh:19, PW-4 Ali Murad vide Exh:20, who produced the mashirnama of place of vardat, PW-4 Abdul Raufvide Exh:21 who produced letter videExh: 21-A, B and C respectively, PW-5PC Subhan Ali vide Exh:22, who produced mashirnama of arrest vide Exh:22-A, PW-6DSP Ghulam Akber Waggan Investigation Officer vide Exh:23 who produced copy of order, statement of Jan Muhammad and letter of patient entry in OPD Register videExh:23-A to 23-C respectively, PW-7SIP Abdul Manan, Investigating Officer vide Exh:25 who produced the receipt, mashirnam of dead-body, Danishnama, Rahdari, place of wardat and recovery of shalwar of deceased, mashirnama of place of incident No.2, mashirnama of place where deceased was drowned and recovery vide Exh:25-A to 25-H respectively, PW-8PC Ali Muhammad vide Exh:26, PW-9PC Naseem Ahmed vide Exh:27, who produced Danishnama vide Exh:27-A, PW-10Ranovide Exh:28 who produced photocopy of his statement U/s 164, Cr.P.C, PW-11 Syed Nawab Shah vide Exh:29, who produced photocopy of his statement U/s164 Cr.P.C. PW-12Chuttalvide Exh:31, who produced photocopy of his statement U/s164 Cr.P.C statement, PW-13 Ali Hydervide Exh:32, who produced photocopy of 164 Cr.P.C statement, PW-14Gullan Shah vide Exh:33, PW-15RiazHussain Shah, Investigating Officer vide Exh:34, who produced copy of letter vide Exh:34-A, PW-16 Shah Muhammad vide Exh:35. Prosecution closed its side by way of statement vide Exh:36.

7.       Statements of accused persons U/S 342 Cr.P.C were recorded, wherein accused denied the allegationsleveled by prosecution and stated that they have been falsely implicated due to enmity with complainant and claimed to be innocent. However, accused persons neither examined themselves on oath nor led any defence.

8.       After hearing the arguments of learned counsel for the parties, learned trial Court acquitted accused persons vide impugned Judgment.

9.       Appellant Jan Muhammad contended that trial Court has not properly appreciated the ocular account, medical evidence and circumstantial evidence adduced by the prosecution against  accused persons; that trial Court while acquitting accused persons has committed serious illegality; that complainant and his witnesses have fully supported the contents of F.I.R. as  accused persons had kidnapped his son from the main gate of City Hospital, Khairpur, in presence of his mother and took him to Balochistan, wherefrom his dead-body was brought at his house by the Balochistan Police;that accusedare real culprits of the heinous crime of murder of his son, hence impugned judgment may be set aside and accused persons may be convicted for the offence.

10.     While controverting the above submissions, it is, inter alia, contended by learned counsel for respondents that they are innocent and have been falsely implicated by complainant in the alleged offence with ulterior motives; that there is no eye witness of the alleged incident which occurred in Balochistan where his son had gone to visit his maternal aunt (Khala) and drowned there in sim-nala; that parties are disputed over matrimonial affairs and only to take the revenge, complainant lodged instant FIR against entire family of the respondents; that alleged offence was investigated by three different Investigation Officers on the request of complainant, and they all had recommended the case for its disposal in “B & C” Class; that Mst. Sabhai, mother of deceased, is an interested witness, who had managed a false story at the behest of complainant; that allegedly PW Mst. Sabhai had made any hue and cry at the time of alleged abduction of deceased from the main gate of City Hospital, Khairpur,but no one attracted, which is unbelievable; that complainant reported the matter to policeafter recovery and arrival of the dead-body of the deceased, therefore, learned trial Court after considering all the material facts and circumstances has rightly acquitted the accused persons.

11.     Learned DPG supported the arguments advanced by the learned counsel for respondents and contended that the incident is un-witnessed and there is no direct evidence available on record to connect the respondents with the commission of alleged offence; that prosecutionexamined 16witnesses in support of its case but none of them had witnessed the incident except PW Mst. Sabhaiand her evidence is full of contradictionswhich could not be believed; that impugned judgment is just and proper.

12.     We have heard the appellant in person, learned counsel for the respondents as well as learned DPG for the State and scanned the material available on record, which emanate that allegedly deceased Khalil Ahmed and his grandmother Mst.Sabhai after medical treatment reached on the main road near the main gate of City Hospital, Khairpur, 13 accused persons including two woman folk, all armed with pistols, got off from the bus and kidnapped Khalil in same bus.

13.     At this juncture, we would like to have a glance over the relevant portions of evidence of prosecution witnesses as follows:-    

(i)       PW-2Complainant Jan Muhammad has repeated same facts regarding the alleged incident and further deposed that dead body was recovered by Jaffarabad police from the Sim-nala of Jaffarabad. He stated that accused Mst. Hasina was married with his brother Gul Bahar but subsequently she was taken away by her relatives and was re-married with one Ali Muhammad Magsi and such complaint and telegrams were made by his brother Gul Bahar against the parents of Mst.Hasina. He admitted that he did not disclose the fact of abduction of his son to anybody in the locality where he is residing. Police Station ‘A’ Section is 2/3 furlongsaway from the City Hospital. He approached police station but his FIR was not registered and then he made complaint to SP on 11.08.2001. He admitted that thereafter he filed Constitution petition before the High Court of Sindh but he had not mentioned the fact of refusal of police to lodge FIR and complaint made to SP in his petition. His wife Mst. Sherbano alias Bano, Mst. Hasina and Mst. Sakina are daughters of Imam Bux Chandio. He admitted that theirmatrimonial affairs with accused persons were subsequently discontinued.

(ii)      PW-3 Mst. Sabhai has stated that on the day of incident, she took her grandson Khalil Ahmed for medical treatment andafter the treatment, when they reached at the main door of City Hospital, accused, including women, armed with revolvers, got off from the bus andabducted her grandson, taking him away in the same bus. In cross examination, she stated that at the time of abduction, she raised cries but no one was attracted from the hospital or town. She admitted that wife of complainant and mother of deceased, had already expired prior to the incident. She denied that Mst. Hasina took the deceased being son of her sister to Balochistan for visiting where she is residing. She denied that deceased went to Sim-nala for taking bath and was drowned.

(iii)     PW Ali Haider Khoso deposed that he did not know who killed the deceased Khalil Ahmed. Complainant came to know that deceased died in Sim-nala at Jafferabad, Balochistan. He deposed that on 10.08.2001, his son was ill, therefore, he brought him to City Hospital for treatment and was regularly attending the hospital from 10.8.2001 to 13.08.2001, but he did not hear about the abduction of Khalil Ahmed.

(iv)     PW 4 Ali Muhammad acted as mashir of place of wardhat and produced such mashirnama. He admitted that complainant is his younger brother and their house is at the distance of 2 furlongs from the main gate of City Hospital.

(v)      PW-5 PC Subhan Ali acted as mashir of arrest of accused and produced such mashirnama at Exh:22-A.

(vi)     PW-6 DSP Ghulam Akber Waggan conducted further investigation of the case and deposed that he recorded statements under section 161 Cr.P.C. of Sabir Hussain Shah owner of medical store of City Hospital, Shah Jehan Dispenser, Abdullah Junejo Compounder and Mureed Abbass Rickshaw Driver and they all had stated that no such incident had occurred as alleged by the complainant. He deposed that Medical Officer of City Hospital has stated that no such entry was available in OPD Register/record of hospital that Mst. Sabhai and deceased Khalil Ahmed had taken medical treatment. He recorded statement of one Rano under Section 161 Cr.P.C who stated that he alongwith Mst. Sabhai and Khalil Ahmed went to Balochistan and there was a hottest day and they went to Sim-nala where Khalil Ahmed was drowned. He recorded statements of Bachal Shah bus driver, Gulab Khan, bus conductor Muhammad Ali Ujjan and Starter Siddique Phulpoto and they had stated that no incident had taken place in the bus. He had recommended to DIG through SSP, Khairpur for disposal of the case in ‘C’ Class.

(vii)    PW-7 P.C Ali Muhammad acted as mashir of inspection of dead body and produced such mashirnama. On 20.08.2001, he alongwith co-mashir PC Ghulam Mustafa went to Jaffarabadwhere ASI Abdul Munam Larik inspected the place of wardhat situated at Sim-nala Jaffarabad and prepared such mashirnama which he produced.

(viii)   PW-1 Dr. Saleem Ahmed, MLO Civil Hospital, Khairpur conducted postmortem of corpus on 14.08.2001.On external examination, he found the following injuries on dead body:-

“The face of the dead body was found with swelling, eyes were protuberant swelling with sub conjunct type, bleeding from nostril,mouth was closed, tongue was not protuberant. Rigor mortis start to disappear and putrefaction of dead body has started, scalp was swelling membrane red and swollen brain red and swollen. Skull and vertebrae were found normal and healthy. Right lung and left lung were normal and healthy and water was not found in both lungs. Restorgans were normal and healthy. The death of deceased was occurred due to smooth ring asphyxia phenomenon and not due to drowning.In column of information, I mentioned that the cause of death of deceased is not certain. There was no ligature mark on neck but swelling was present. No marks of violence were found on the body.”

(ix)     PW SIP Abdul Munam lodged FIR which he produced vide Exh:18-A and received dead-body. He produced mashirnama of inspection of dead body, inquest report, mashirnama of place of wardhat and mashirnama of cloths of deceased. On20.08.2001, he proceeded to Jaffarabad, Balochistan, where police officials pointed out the place of wardhat and disclosed that the incident had taken place in Sikander Sim-nala, where from they recovered dead body and completed required formalities. He recorded statements of police officials posted at Police Picket near the place of incident and police officials informed that deceased was swimming in Sim-nala and drowned. He recorded statements of witnesses under section 161, Cr.P.C. Further investigation was transferred to DSP Ghulam Akber Waggan, Incharge CIA. He admitted that during the investigation, PWs had not supported the version of complainant.

(x)      PW-15 Inspector RiazHussain was posted as SHO on 18.5.2002 at Police Station ‘A’ Section, and conducted further investigation under orders of DPO, Khairpur and arrested accused Mevo, Abbas Dino, Raza Muhammad, Muhammad Uris son of Ali Bux and Muhammad Urs son of Khan Muhammad on 12.6.2002 under mashirnama in presence of mashirs which he saw vide Exh:22-A. He recommended disposal of the case in ‘B’ Class after obtaining opinion from DPO but Magistrate did not agree and directed him to submit Challan which submitted accordingly.

14.     It is significant to mention that the alleged incident was investigated thrice by different Investigating Officers and every time accused persons were found innocent but the Magistrate did not agree with the summery submitted by police and directed the Investigating Officer to submit Challan.

15.     Admittedly, the alleged incident occurred in front of the main gate of City Hospital, Khairpur, situated in heart of the city whichis a thickly populated area, but the stance taken by Mst. Sabhaithatat the time of the alleged offence no oneattracted on the spot on her cries and instead of approaching the Police Station for help or to lodge a report which is situated 2/3 furlongs away from the place of incident, proceeded to her house and informed her sons about the incident,which creates serious doubts asthe above conduct and demeanor of Mst. Sabhai does not appeal a prudent mind.

16.     Indeed, the deadbodyof the deceased was brought by PC Muhammad Anwar from Jaffarabad, Balochistan, on 14.08.2001, at the house of complainant and subsequently he lodged F.I.R,while the alleged incidenthad occurred 3/4 days before the lodgment of F.I.R and no plausible explanation was furnished by the complainant regarding such delay which strengthens the plea of respondents that F.I.R was lodged with consultation. Conversely, complainant has candidly admitted in his evidence that he had not informed anybody in the locality where he is residing about the abduction of his son by the accused which also creates serious doubts about the commission of the alleged offence.

17.     Admittedly, none of the PWs had witnessed the incident of death of deceased. The statements of police officials posted at Picket of P.S Jaffarabad also narrated that the deceased drowned in Sikander Sim-nala and his dead body was recovered by them and such entries were made in the police records there. Medical evidence is controverted to the ocular account of the prosecution evidence, but MLO at first hand had opined that cause of death is uncertain. However, in final report, it was opined that there was no marks of violence on the body but death was not occurred due to drowning, but same could not be taken into considerationin absence of strong and concrete ocular evidence, while circumstantial evidence is also lacking confidence.          

18.     Likewise, PW-6 DSP GhulamAkberWagganhadrecorded statements under section 161 Cr.P.C. of the owner of City Hospital, Dispenser, Compounder and Duty Medical Officer and they had stated that Mst. Sabhai and deceased Khalil Ahmed did not appear in Hospital for medical treatment nor such entry was available in the record ofthe hospital. Simultaneously, DSP recorded statements under section 161 Cr.P.C. of Bachal Shah Bus Driver, Gulab Khan, Bus Conductor Muhammad Ali Ujjan and Starter Siddique Phulpoto and they had disowned such incident in the bus as alleged by complainant and Mst. Sabhai.

19.     It has also come on record that house of complainant is 2furlongs away from the said Hospital as well as 2/3 furlongs away from police station, therefore, it was not difficult for the complainant to approach the concerned police instantly.Though complainant in his statement has asserted that he had approached the police for lodgment of FIR but police refused to lodge the same and then he made a complaint to SP Khairpur, but in his cross examination, he admitted that he had not mentioned these material facts in his Constitution petition filed in High Court of Sindh regarding the alleged offence, which otherwise negates his earlier version.

20.     Undoubtedly, the factum of animosity between the parties is reflected in FIR and status of PWs, as they are close relatives, however, due to matrimonial disputes their relationships were discontinued. Statement of Mst. Sabhai is not inspiring confidence that 13 accused persons including 2 female accused, holding revolversgot offfrom the busand they took away abductee in the same bus from the main gate of City Hospital.

21.     It is well settled that acquittal of accused from the charge always carries double presumption of innocence in his favour. Parameters of appreciation of evidence in appeal against acquittal arecompletely different from that of appeal against conviction. Consequently, Courts are always reluctant to interfere in the judgment of acquittal unless trial Court had failed to consider any material evidence having direct link with the commission of the offence or same is perverse and suffering from serious illegality or material irregularity.

22.     For the facts and circumstances referred supra, we are of the considered viewthat there is no sufficient and concrete evidence against the accused persons to prove their guilt forcommission of the alleged offence, which is based purely on animosity. The best evidence available with the prosecution is a mere version of Mst. Sabhai which is not free from doubts and every coin of doubt shall be deposited in the account of accused.We have also scanned the impugned judgment and find no illegality or irregularity as such same does not call for any interference.Consequently, instant acquittal appeal being devoid of any legal substance stands dismissed.

                                                                                      JUDGE

                                                          JUDGE

Akber

 

 

 

 

 

 

 

 

 

 

We are fortified with the dicta laid down in the case of …….

The above admitted facts are fatal to the entire structure of the prosecution case.        

Possibility of another view from the evidence available would not disturb the finding of acquittal arrived at by trial Court, provided both the conclusions are equally possible and probable. Liaquat Ali v. Sabrullah(2010 YLR 1083(b).