IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D- 09 of 2015

PRESENT:

Mr. Justice Khadim Hussain M. Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant: The State through Mr. Khadim Hussain Khooharo, Addl. Prosecutor General, Sindh, Larkana.

Respondents: Dalel Sabzoi and others

Date of Hearing : 03.05.2018

Date of Judgment : 03.05.2018

J U D G M E N T

Amjad Ali Sahito, J.- By this judgment, we intend to dispose of Crl. Acquittal Appeal No. D-09 of 2015 against the order dated 10.02.2015 passed by learned Additional Sessions Judge, Kandhkot in Sessions Case No.147 of 2013 whereby respondents No.1 to 4, namely, Dalel, Nek Muhammad, Khair Muhammad and Akber have been acquitted under section 265-K, Cr.P.C. The learned Prosecutor General Sindh being aggrieved with the said order has filed instant Criminal Acquittal Appeal against the acquittal of respondents as mentioned above.

2. The brief facts of the case are that complainant HC Amanullah Chandio lodged the F.I.R bearing Crime No. 118/2013 on behalf of State at Police Station A/Section Kandhkot for offence under section 302, 34, PPC stating therein that on the day of incident i.e. 03.05.2013 he received spy information at Police Station from one Nek Muhammad that Mst. Shabana has been murdered at village Aarabi Sabzoi. After such information, complainant left Police Station along with his subordinate staff vide entry No.29 at 0440 hours and it was 0500 hours when they saw that one dead body of woman was lying on the cot in the house of accused Nek Muhammad where some women were present. The complainant enquired from them about the murder of deceased Mst. Shabana. The complainant was informed that Mst. Shabana was the wife of accused Nek Muhammad and daughter of Shahzado Khoso. The complainant was further informed by the women folk as well as neighbours that accused Dalel, Nek Muhamad, Khair Muhammad and Akber have committed the murder of deceased Mst. Shabana at about 2-00 a.m. of the night by strangulating her with the piece of rope on the allegation of karap (adventurous) and after committing her murder the accused persons have escaped away.

3. During the course of investigation, respondents No.1 to 4 were arrested and sent up to stand trial. The learned trial Court after supplying copies of the necessary police papers, framed charge against them to which they pleaded not guilty and claimed trial. However, no any single witness was examined at trial. Consequently, counsel for the respondents No.1 to 4/ accused filed application under section 265-K, Cr.P.C which was allowed and the respondents No.1 to 4 were acquitted of the charge.

4. Learned Additional Prosecutor General Sindh, has contended that the learned trial Court while passing the impugned order has taken into consideration the only statement of father of the deceased who is neither prosecution witness nor complainant and in the eyes of law in such like cases the statement of the father of deceased has no any evidentiary value. He further contended that the trial court has failed to examine a single witness and without examining witness the court cannot approach to the possibility or probability for conviction or acquittal and as such the guilt or innocence of the accused will be determined after adducing evidence of prosecution witness. He further contended that during interrogation the police has recovered rope from the house of respondent Nek Muhammad and such memo of recovery of rope was prepared on 12.5.2013. He further contended that medical evidence viz. postmortem reveals and corroborates with evidence of eyewitness and circumstantial evidence that unnatural death has been found on deceased Shabana and cause of death is strangulation. He further contended that it is by now well settled by the apex court that the evidence of police personnel cannot be discarded or disbelieved and the police officer is a good witness other than the private person. He lastly prayed for setting aside the impugned order and deciding the case on merits after recording evidence.

5. We have heard learned Additional Prosecutor General for the appellant and perused the record. The respondents No.1 to 4 are represented through Mr. Saeed Ahmed Bijarani, Advocate but he is called absent.

6. We have considered the arguments recorded by learned Addl. PG. and find that there is no evidence against the respondents No.1 to 4 to connect them in the instant crime. The learned trial Court while considering the material available on record has rightly acquitted the respondents. The concluding para of order dated 10.02.2015 is reproduced as under:-

“The deceased’s father has mentioned in his application that the present accused have neither committed the murder of deceased nor they are involved in the commission of crime in any manner whatsoever in view of committing murder by veiled faces persons and he has got no objection in case of acquitting the present accused. The father doesn’t seem to have made this statement either under duress, coercion or pressure, hence the same appears to be voluntarily one. He being real father of deceased is not expected to state falsely. This plea of father of deceased seems to be true on the basis of non reporting the matter by any of them to Police who has also not disclosed the cause of non doing by them without alleging their any mala fide in this regard. Moreover, there is no chance of the present accused being convicted in case of non taking into consideration the said version mainly for the reason that the incident was un-witnessed in view of lodging the FIR on the basis of hearsay evidence. No doubt that police officials are good witnesses as others however, their evidence can only be accepted when their mala fide is not proved but in the case in hand the mala fide of the police apparent on record in view of non proceeding of police party towards the place of incident accompanied with independent person despite having received spy information, hence there is no likelihood of accepting their evidence by this Court, particularly when the evidence of police officials is rarely accepted by the Courts on the basis of possibility of their deposing falsely while considering their nature of involving innocent persons in false cases when the police fails to achieve their hidden goal. The place of incident is shown to be located in a village Arab Sabzoi where there must be some houses and despite of this fact, neither the complainant took any step in approaching the co-villagers in order to show the dead body nor I.O bothered to record the statement of such person. The I.O has also not recovered the piece of rope with which the deceased was allegedly murdered, as such the prosecution is also not in position to prove its case beyond reasonable doubt as recovery is always considered to be corroborative piece of evidence. In these circumstances, I am of the humble view that there is no probability of the accused being convicted in the present crime. Accordingly, I acquit the accused U/S 265-K, Cr.P.C by exercising the powers bestowed to this court under this provision of law. The accused Dalel and Nek Muhammad are present on bail, their bail bond stands cancelled and sureties discharged while the remaining accused are remanded back with direction to release them forthwith in case of their non involving in any other case/crime.

7. The contention of learned Addl. PG that trial court has failed to examine a single witness and without examining witness the court cannot approach to the possibility or probability for conviction or acquittal is concerned, in the present scenario, the recording of evidence afresh against the respondents No.1 to 4/accused afresh would be a futile exercise as there appears no probability of their conviction in the present crime. As far as medical evidence is concerned, it is by now well settled principle of law that the medical evidence is a type of supporting evidence which may confirm the ocular account with regard to the receipt of injury, nature of the injury, kind of weapon etc. used in the occurrence but it would not identify the assailant. In the present case, there is no convincing, direct or circumstantial evidence available against the respondents No.1 to 4 connecting them with the commission of this offence.

8. The purpose of provisions of section 265-K, Cr.P.C is very much clear and it never prevents a court from acquitting an accused at any stage of the case; if, after hearing the prosecution and the accused and for the reasons to be recorded, the court considers that there is no probability of the accused being convicted of the offence alleged against them. There is no legal embargo for exercising of powers conferred under this section, but even then the Court cannot deprive the prosecution by giving an opportunity to produce tangible evidence under the garb of section 265-K, Cr.P.C., therefore, it is mandatory for the Court that such discretion must be based on reasons exercised with due care and caution with sole object to prevent fruitless trial when it is apparent from the record that there is no probability of the accused being convicted of the offence. We have seen the material available with the prosecution with the assistance of learned A.P.G and have also seen the impugned order passed by learned trial Court. We find that the learned trial Court after going through the material and with the cogent reasons has passed the impugned order acquitting the respondents /accused of the charge under the provision of section 265-K, Cr.P.C and such a conclusion arrived at by the learned trial Court suffering from no illegality or jurisdiction defect, does not call for any interference in appeal against acquittal order. Accordingly, the instant criminal acquittal appeal being devoid of merit is dismissed.

9. These are the reasons of our short order dated 03.05.2018 announced by us.

Judge

Abid H. Qazi/**