Criminal Appeal No. 445 of 2016
Amjad Ali & another . . . . . . . . . . . . . . . . . . . . . . . . Appellant
V E R S U S
THE STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
Date of hearing : 18th May, 2017.
For the Appellants : Mr.Shah Nawaz Sahito, Advocate
For complainant : Mr. Nadeemul Haq, Advocate holding brief for
Mr. S.M. Ahsan Kazmi, Advocate
For the State : Ms. Rahat Ahsan, DPG, Sindh.
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Syed Muhammad Farooq Shah, J.:- Captioned appeal is directed against the impugned judgment dated 15.12.2016 passed in Session Case No.75 of 2011, whereby the appellants/accused were convicted under section 265-H Cr.P.C. and sentenced under section 336/34 PPC to suffer imprisonment for seven years as Tazir and to pay Arsh of Rs. 50,000/-, which shall be paid to the complainant/injured, in failure to payment f Arsh both the appellants to suffer RI for one year more. They were also convicted for an offence under section 337-A(i) to suffer RI for two years and under section 337-A(ii) to suffer RI for five years, the above sentences will run concurrently. The appellant prayed to set aside the impugned judgment on the facts and legal grounds averred in the memo of appeal.
2. Arguments advanced by learned counsel for the appellants and learned Deputy Prosecutor General, Sindh assisted by Mr. S.M. Ahsan Kazmi, Advocate are considered. Record has carefully been perused.
3. Story of the prosecution case shortly is that the complainant Mehtab Ali by narrating about the incident in the FIR No. 526 of 2011 registered with Police Station Sohrab Goth, Karachi lodged on 22.08.2011 about the incident dated 01.08.2011 (after 21 days delay) stated that he contracted marriage with Dr. Yasmeen; Ghulam Akbar, uncle of his wife and his sons were not happy on said marriage and issued him threats of dire consequences. On 01.08.2011, when complainant alongwith his wife was present at Flat No. D-27, situated at Al Asif Square, Sohrab Goth Karachi as he was intending to lease out the said apartment on rent meanwhile, at about 07:00 p.m. (1) Amjad Ali, (2) Muhammad Ali, (3) Abid Ali son of Ali Akbar, (4) Wajid Ali son of Manzoor came there in silver cultus car. Muhammad Ali said to his brother to hold the complainant and beat him. Muhammad Ali caused injury on right eye, so also complainant received injury on his body. This incident was witnessed by Syed Afzal and Munir who intercepted and saved the complainant. Thereafter, complainant obtained letter from the police chowki at Sohrab Goth and went for his treatment to the hospital and thereafter he lodged the FIR. ASIP Qaisar Khan undertook investigation and on completion of investigation submitted final report under section 173 Cr.P.C.
4. On commencement of trial, charge was framed as Exh: 2 against both the appellants, to which they pleaded not guilty and claimed to be tried. At the trial, prosecution to prove its case examined five prosecution witnesses and thereafter statement of accused was recorded under section 342 Cr.P.C.
5. The crucial point for determination as well as charge framed by the trial court is reproduced hereinbelow:-
“Whether on 01.08.2011 at about 1900 hours at Flat No.D-27, Al-Asif Square, Sohrab Goth Karachi, the present accused persons alongwith absconded accused Wajid Ali in furtherance of their common intention, intentionally caused injuries to complainant Mehtab Ali under the intention of Itlaf-e-Salahiyaat-e-udw and Shajjah-e-Khafifah on his person by means of hard and blunt substance?”
6. Learned counsel for the appellants argued that the impugned judgment is not sustainable in the eyes of law, which suffers from gross impropriety, misreading or non-reading of evidence on the part of trial court, amounting to miscarriage of justice as the trial court did not consider the delay of 21 days of lodging the FIR without any plausible and sufficient reasons and explanation; more particularly, statement under section 161 Cr.P.C. has also been recorded at belated stage. It is argued that there is a civil dispute between the parties over Flat No. D-27 and D-16 situated at Al Asif Square, Karachi. It is next submitted by the learned counsel for appellants that during sudden provocation both the parties sustained minor injuries on their persons and it is yet to be determined that which party is aggressive as the incident was initially reported by appellant No.1 (Accused) with Police Station Sohrab Goth and also obtained medical certificate for injury sustained by him. Learned counsel submitted that no independent witness was examined by the prosecution to prove its case and PWs are interested witnesses of complainant. It is argued that judgment is based on presumption, surmises and conjectures, without considering the contradictory evidence of prosecution witnesses. To support this contentions learned counsel for the appellants has placed reliance upon the cases of MUHAMMAD ASIF V/S THE STATE (2017 SCMR 486), ABDUL RAHIM V/S ALI BUX & 4 OTHERS (2017 P.Cr.L.J. 228) and HIDAYATULLAH V/S THE STATE (2017 P.Cr.L.J.594)
7. Conversely, learned DPG supported the impugned judgment.
8. Insofar as the prosecution evidence is concerned, it has thoroughly been threshed with the able assistance of learned counsel for both the parties. The star witness of the prosecution is complainant, who lodged the FIR after 21 days of alleged incident without disclosing any sufficient reasons or plausible cause for inordinate delay. In his examination-in-chief, Exh:5, he has stated that accused persons inflicted him kick blows and also ‘iron’ and ‘Churri’ blows though he has not stated usage of ‘Churri’ and iron rod by the accused in the FIR. He has further stated in examination-in-chief that one accused Abid was arrested by the police at the spot. However charge sheet reflects that he was released under section 497 Cr.P.C. by the police; further stated that during site inspection by the police ‘Churri’ was recovered from the place of incident. In the last of his examination in chief he has stated that case property is with the Investigating Officer ASI Qaisar Ali but he has not deposited the same in the Malkhana of the trial court. In cross he has admitted the following suggestions/questions put to him by the defense counsel:-
“It is correct to suggest that one of my nominated accused Abid has been let off by the I/O u/s 497 Cr.P.C. it is correct to suggest that it is mentioned in my FIR that I had sustained injury on the forehead and on my eye besides internal stomach injury. It is correct to suggest that medical evidence produced by me showing seven injuries. It is correct to suggest that nothing is mentioned in the FIR regarding knife. Voluntarily says from the place of incident witness Muhammad Afzal had produced the knife which was snatched form the accused persons. It is correct to suggest that it is mentioned in the memo of site inspection in the end that from the place of incident no article is recovered. It is correct to suggest that alleged incident has taken place on 01.08.2011 whereas FIR was lodged on 22.08.2011.”
9. Another eye-witness, PW Afzal Mehmood Ahmed Khan was declared hostile by the prosecution who stated that accused Muhammad Ali inflicted the knife blow whereas Abid Ali, Wajid Ali and unknown persons were also alongwith Muhammad Ali, he and other Mohallah people rescued the complainant. His statement was recorded on 22.08.2011. In cross, he has stated that “his signature on site inspection memo was obtained at Police Station. He has further stated in cross that he knew the accused persons from last 26 years and he never knew the complainant prior to the incident. Further stated that on the day of incident complainant had come to him to show flat, to be given on rent and when they reached there this incident had taken place. He has further stated that 8-10 persons gathered at the place of incident. He has further stated that it is not within his knowledge whether prior to the incident both the parties had dispute over the property though he has admitted himself to be the Secretary of Union of said premises. He has admitted that fact of oozing blood has not been mentioned in his statement recorded by the Investigating Officer.
10. The Investigating Officer ASI Qaisar Khan (Exh: 7) by producing different memos and medical certificates has also admitted certain suggestions/questions put to him by the defense counsel in cross-examination. Need arises to reproduce in verbatim the said admissions of Investigating Officer:-
The complainant had produced two/three witnesses. It is correct to suggest that signature of the witnesses are not with their names. It is correct to suggest that I had recorded the statement of witnesses Abdul Latif son of Abu-Bakr, Abdul Saboor son of Abdul Ghaffar and Abdul Rahim son of Haji Munir Deen. It is correct to suggest that these witnesses had stated before me that these present accused persons are owners of disputed flats. It is correct to suggest that these witnesses further corroborated that these accused persons are owners of flats which were given to the tenant on rent. It is correct to suggest that for the subject property litigation is pending before the Honorable High Court of Sindh. It is correct to suggest that as per the statement of PC one of the accused namely Mohammad Ali had received injury while he was sleeping inside the flat when attacked upon by the complainant side. It is incorrect to suggest that presence of another accused is not shown at the time of incident. It is correct to suggest that Abdul Saboor in his statement has stated that in flat D-27 Muhammad Ali was sleeping inside flat and complainant broken the locked and after his commotion Amjad Ali reached over there. I had not gone inside the flat it be door was bolted, however it was not locked. It is correct to suggest that I had not gone inside the house where the incident had taken place. The complainant had given some document to me regarding ownership of the subject flat but I had not read it due to written in English. It is correct to suggest that complainant had given me the knife which allegedly belonged to the accused, when I inspected the site of occurrence. I do not know where the complainant is residing.
11. PW Dr. Yasmeen (Exh: 9) wife of the complainant stated in her examination in chief that on fateful day her two cousins/appellants arrived; Muhammad Ali was having knife in his hand and he suddenly started knife blow to her husband. Her husband sustained injury and blood started oozing from the wounds. Public reached there and from Police Station they went to hospital for treatment and after getting medical treatment they returned back to Police Station. In cross-examination, she has admitted that she had contracted Court marriage with the complainant Mehtab and that the accused had filed a petition before the High Court against her in respect of these flats but on production of documents the petition was disposed of with directions to them to approach the civil court.
12. Prosecution witness, MLO Qarar Ahmed Abbasi of Civil Hospital, Karachi produced medico legal certificate issued by Dr. Nisar Ali who was not found available due to his retirement. He has produced the supplementary Medico Legal Certificate (Exh: 10/B) showing that as per radiologist no fracture seen in facial bones and as per eye opinion, opinioned by Dr. Arshed Shaikh on OPD Slip dated 01.08.2011 right retinal detachment and decreased vision is due to trauma, hence injury No.01 was declared as Itlaf-e-Salahiyaat-e-Udw. Need arises to reproduce hereinbelow section 335 PPC which defines Itlaf-e-Salahiyaat-e-Udw in the following manner:
335. Itlaf-i-Salahiyaat-i-udw.- Whoever, destroys or permanently impairs the functioning, power or capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause Itlaf-i-Salahiyaat-i-udw.
13. As per medical certificate, the organ of body of complainant i.e. eye neither has been destroyed or permanently impaired its vision nor it has been permanently disfigured, therefore the case does not fall under the penal provision that is section 336 PPC. More-so, neither use of shop cutting weapon nor blunt weapon has been narrated by the complainant in the FIR nor the said knife has been secured; more-so, the alleged crime weapon has never been produced before the court which was also stated to be a ‘Churri’. Record reflects that there was scuffle in between the parties due to familial bitter acrimonious relations which has been later on converted into bloodshed by showing use of sharp cutting weapon either ‘Churri’ or ‘Chaku’/knife or ‘iron’ rod during evidence by the complainant and his wife; such improvement is not tenable I law; more particularly, FIR has been lodged at inordinate delay, after consultation and obtaining the medical certificate from a doctor who after issuing the certificate retired from the job.
14. The impugned judgment does not reflect that the trial Court has gone through the elaborate cross-examination of prosecution witnesses. It is not out of context to mention here that cross-examination is the great legal engine invented for the discovery of truth. Cross-examination is not an empty formality, but a valuable right and best method for ascertaining the truth. The cross-examination, particularly in criminal cases, has from times immemorial been held to be a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness.
15. By no stretch of imagination the prosecution evidence may be considered confidence inspiring or trustworthy; more particularly it is an admitted fact that after 21 days of alleged incident, the FIR was lodged. The Delay in lodging the FIR quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the FIR should be satisfactorily explained, which in the present case has not been explained; at the time of recording deposition the complainant and his wife tried to improve their version which is not sustainable in the eyes of law and creates a reasonable doubt in a prudent mind.
16. A perusal of impugned judgment reveals that the learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial judge in the overall context. The depositions of prosecution witnesses are totally inconsistent with the safe administration of justice. There are so many circumstances, discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim “it is better that ten guilty persons be acquitted rather than one innocent person be convicted” which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.
17. On a careful perusal of the evidence on record and in the light of the arguments advanced by learned counsel for the parties, I find that it is difficult to uphold the conviction of the accused and therefore, I find that the appellants/accused are entitled for acquittal.
18. Accordingly, the appeal is allowed and the conviction and sentence passed by the trial court are set aside and the accused/appellants are acquitted of the charge in this case. Appellant No.1 namely Amjad Ali son of Ghulam Akbar is on bail. Superintendent, Central Prison Karachi is directed to release the appellant No.2 namely Muhammad Ali son of Ghulam Akbar (In custody) forthwith if he is not required in any other case. Fine amount if paid by them shall be refunded. Bail bond if any shall stand cancelled.
*Aamir/PS* J U D G E