IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D- 03 of 1997

Present:

Mr. Justice Khadim Hussain Shaikh

Mr. Justice Amjad Ali Sahito

Appellant: Amir Jan s/o Ali Bux Magsi, through Mr. Asif Ali Abdul Razak Soomro, Advocate.

Respondents: Meehon Magsi and others through Mr. Safdar Ali Bhutto, Advocate.

Date of Hearing : 11.04.2018

Date of Judgment : 11.04.2018.

J U D G M E N T

Amjad Ali Sahito, J.- Through the captioned Criminal Acquittal Appeal, appellant Amir Jan Magsi has called in question judgment dated 28.02.1997, passed by Additional Sessions Judge, Shahdadkot in Sessions Case No. 132 of 1984 re. the State v. Meenhon and others arising out of F.I.R No. 10 of 1984 for offence under section 302, 34, PPC registered at Police Station Miro Khan, whereby respondents Meenhon, Guloo and Haji Rawal have been acquitted.

2. Briefly, the facts of the case are that on 27.01.1984 appellant/ complainant Amir Jan lodged report at Police Station Mirokhan stating therein that on the day of incident i.e. 27.01.1984 at breakfast time, he along with Sikandar, Ghulam Kadir and Muhammad Hassan were working in the land i.e. Survey No. 276 of deh Khudo where accused Illahi Bux, Meenhon, Guloo and Rawat came. Haji Rawal had a lathi in his hand while other three were armed with hatchets. Accused Haji Rawat abused Amir Jan and others and instigated them. Accused Meenon, Guloo and Illahi Bux caused hatchet injuries from sharp side to Ghulam Kadir who fell down and bled from his injuries. Accused then went away towards eastern side along with their respective weapons. Complainant Amir Jan and P.Ws Sikandar and Muhammad Hassan took the injured Ghulam Kadir to C.M.C Hospital Larkana and leaving him in the hospital the complainant Amir Jan appeared at Police Station Mirokhan and lodged the report to the above effect. The motive behind the incident is that survey No.276 of Deh Khudo was a government land and was in possession of complainant since long time however, thereafter accused Meenohon got the same on lease from the Revene Department due to such dispute over land the incident took place.

3. The F.I.R of the incident was lodged vide Crime No. 10/1984 under section 307, 34, 114, PPC. The injured died in the hospital on 02.2.1984 as a result of injuries sustained by him. Consequently, section 307 PPC was altered into Section 302, PPC. During the course of investigation police arrested the respondents Meenhon, Guloo and Rawal while accused Illahi Bux absconded away. After completing the usual investigation, respondents No.1 to 3 were challend in the Court of Sessions Judge, Larkana. Due to establishment of Court of Additional Sessions Judge, Shahdadkot, the case was sent to Additional Sessions Judge, on 09.10.1995. The learned Additional Sessions Judge, Shahdadkot after conducting trial acquitted the respondents No.1 to 3. Hence this appeal.

4. We have heard learned counsel for the appellant /complainant assisted by learned Asstt: Prosecutor General Sindh for the State as well as learned counsel for the respondents No.1 to 3 and have perused the available record and the impugned judgment with their assistance.

5. The complainant Amir Jan, the eyewitness of the incident was examined before the trial Court at Ex.12. He deposed that survey No.276 of

deh Khudi was in joint possession of himself and deceased Qadir Bux. He also deposed that the said survey number was also granted to respondent Meenhon by the Revenue officer. In cross examination the complainant did not reply the question of the defence counsel whether such survey number was granted by Revenue Officers to accused Meenhon on harap.

6. The P.W Sikandar Ali who was examined at Ex.14. He deposed that complainant is his uncle while deceased Ghulam Qadir was his cousin. He also stated that survey No.276 in Deh Khudi was govt. land and was in joint possession of complainant and deceased Qadir Bux. He also deposed such appeal was preferred the concerned authorities at Sukkur against the order of concerned Revenue officer. The another witness Muhammad Hassan was also examined at Ex.19. He deposed that at time of incident he was accompanied by the complainant. He has deposed that he is phuphat of the deceased Ghulam Qadir. He also reiterated the same facts as stated by complainant Amir Jan and PW Sikandar.

7. Both these witnesses along with the complainant were cross examined at length. It is an admitted fact that at the time of incident, the disputed survey number was allotted to respondent No.1 Meenhon on harap basis by the concerned Revenue Officer and the prosecution has totally failed to produce any record, which could show that how and under what right the complainant party was working over the land and it is also an admitted fact that the complainant and all other eyewitnesses including the mashirs are near relatives and they all were present at the wardat at the time of incident. The mashirnama of wardat shows that the disputed land has been ploughed and there was no cultivation prior to it and in the circumstances under which

the incident took place shows that it was a sudden fight and it could not be said who caused the fatal blow to the deceased resulting his death when one accused Illahi Bux is still absconder. There is no independent witness and all the material witnesses are admittedly close relatives and as such the case of the prosecution is not free from doubt. It is well settled principle of law that in criminal cases every accused is innocent unless proven guilty and upon acquittal by a Court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such presumption. The reasons given by the learned trial Court in its impugned judgment, have not been found by us to be arbitrary, fanciful or capricious warranting interference by this Court.

8. For the foregoing, this appeal having no merit is dismissed.

9. These are reasons of our short order dated 11.4.2018.

Judge