IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D- 39 of 2006

PRESENT:

Mr. Justice Khadim Hussain M. Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant : Saindad son of Sultan Larr

Through Mr. Ali Azhar Tunio, Advocate.

State : Through Mr. Khadim Hussain Khooharo, A.P.G.

Date of Hearing : 19.04.2018

Date of decision : 19.04.2018

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-39 of 2006, against the judgment dated 28.09.2006, passed by learned II-Additional Sessions Judge, Dadu, in Sessions Case No.808/1989, whereby respondents namely Niazoo alias Ali Nawaz, Hakim Ali, Ghulam Mustafa, Ghous Bux and Abdul Lateef were acquitted u/s.265-H (i), Cr.PC, which the appellant/complainant has impugned before this Court against the above named respondents by way of filing instant Criminal Acquittal Appeal.

2. The facts of the case are that appellant/complainant lodged the FIR bearing Crime No.43/1989 at Police Station, Mehar, for offence punishable u/s.302,307,148,149 PPC on 22.03.1989, stating therein that he is the cultivator and there exists old murderous enmity between his paternal cousin Mian Bux and accused Ghulam Mustafa Larr. Accused Ghulam Mustafa and others used to say that they will kill Mian Bux. On the day of incident Gahi, Gul Sher both by caste Larr and other people of the village had gone to the tomb of ‘Shah Godryo’ along with their family for Ziarat purpose. At about 10.00 p.m, they were putting their luggage in the Bull-cart for returning to their village, in the meanwhile they saw on the moon light accused persons namely Ghulam Mustafa, 2).Ghous Bux, both sons of Ali by caste Larr, 3).Ilyas son of Usmar Larr, 4).Gada Hussain son of Ali Bux Larr, 5).Bahawal son of Yousif Larr and 6).Gul Hassan son of Sahib Khan Larr, all residents of village Larr, Taluka Warah, duly armed with guns, along with three unknown culprits, armed with guns who if seen again will be identified. They challenged them saying that they will be murdered. Saying so, accused Ghulam Mustafa directly fired at Mian Bux with intention to commit his murder which hit him and he fell down on the ground while raising cry. The remaining accused persons also directly fired at them with intention to kill them, which hit some passerby women who had also come there for Ziarat. Due to fear, the complainant being empty handed did not resist. Thereafter, all the accused while raising slogans made their escape good. The complainant then found Mian Bux having firearm injury, bleeding and he was dead. The women who received firearm injuries were known to be 1.Mst. Hayat Khatoon w/o Soomar Sodhar, 2.Sadori w/o Amanullah Sodhar, 3.Mst. Zubeda d/o Soomar Sodhar and one baby Hawa d/o Haji Amanullah Sodhar, aged about 04 years. Their relatives namely Muhammad Qasim son of Haji Muhammad Sodhar shifted the injured ladies and baby to Police Station, Mehar. The complainant, P.Ws Gahi, Gulsher and Bachal Larr brought the dead body of deceased Mian Bux at Police Station, Mehar. The complainant party also came to know at Police Station that injured baby Hawa succumbed to injured and died. On completion of investigation, the police submitted report u/s 173 Cr.PC before the competent Court of law by placing the names of accused Illyas, 2).Gada Hussain, 3).Bahawal and 4).Ghulam Hussain in column No.2, who were subsequently released by the police.

3. Accused Abdul Latif was arrested by the police on 29.5.1989 while accused Niazoo alias Ali Nawaz was arrested on 11.6.1989 and they were sent up to face their trial showing names of accused Ghulam Hussain and Ghous Bux as absconders in the challan. In the meantime, accused Hakim surrendered before the trial Court after seeking bail from learned Sessions Judge, Dadu on 27.05.1989 while accused Ghulam Mustafa himself surrendered before the learned trial Court to face trial on 28.01.1993.

4. Amended charge against the respondents/accused namely 1.Abdul Latif, 2).Niazoo alias Ali Nawaz 3).Ghulam Mustafa, 4).Hakim and 5). Ghous Bux was framed on 29.10.1998, to which they pleaded not guilty and claimed to be tried.

5. At trial, the prosecution examined Medical Officer at Exh.23, who produced postmortem report of deceased Mian Bux at Exh.23/A, postmortem report of deceased Baby Hawa at Exh.23/B. Thereafter, on an application dated 10.11.1999 filed under section 170/173 and 190 (b) Cr.P.C, the learned 3^rd Additional Sessions Judge, Dadu, joined accused Illyas, 2).Gada Hussain, 3).Bahawal and 4).Gul Hassan in the case to face trial. Amended charge against them was framed by learned 3^rd Additional Sessions Judge, Dadu on 19.7.2000 at Exh.27 to which they pleaded not guilty and claimed to be tried. Thereafter counsel for accused filed application under section 265-K Cr.PC for acquittal of the accused. After hearing the counsel for the accused, the learned 3^rd Additional Sessions Judge, Dadu, allowed the same and acquitted accused Illyas, 2).Gada Hussain, 3).Bahawal and 4).Gul Hassan from the charge vide order dated 04.09.2001.

6. The trial Court examined complainant Saindad on 16.4.2004 at Exh.40, who produced F.I.R at Exh.40/A. P.W Muhammad Bachal at Exh.41. P.W Sultan Ahmed at Exh.44, who produced inquest report of deceased Mian Bux at Exh.44/A, and mashirnama of inspection of dead body at Exh.44/B. Thereafter, the prosecution closed its side vide statement at Exh.25.

7. The respondents in their statements recorded under section 342 Cr.PC denied the prosecution allegations leveled against them and stated that due to murderous enmity between the parties they were involved in the case. They however did not examine themselves on oath nor led any evidence in their defence.

8. We have heard learned counsel for the appellant/complainant assisted by learned A.P.G for the State and have perused the record.

9. It is alleged in the FIR that accused Ghulam Mustafa directly fired at Mian Bux with intention to commit his murder, resulting his death but it has not been mentioned in the FIR that on what part of the body, the deceased received fire arm injury at his hand. The complainant in his FIR stated that he identified accused Ghulam Mustafa, Ghous Bux, Illyas, Gada Hussain, Bahawal and Gul Hassan on moon light. Further, the FIR is also silent about the distance from which the deceased was fired by the accused. In cross examination, he simply replied that accused persons overpowered upon them from distance of 5/6 paces. Thus, this piece of evidence is itself sufficient to reveal the availability of the complainant and his witnesses at the venue of occurrence under a cloud. Furthermore, the complainant has disclosed in his FIR that the accused persons fired upon them with intention to commit their murder but it was quite ridiculous that none of them received even a single injury whereas the passerby women including a baby child are said to have received injuries during course of firing. Moreover, not a single passerby woman was examined by the prosecution to substantiate the version of the complainant party. So far as identification of the accused on the moon light at a distance of 5/6 paces, is concerned, it is not stated in the FIR that what was the date of Lunar month when the incident took place or that moon was either full or very high so that an inference could be drawn that in the moon light the complainant was in a position to properly identify the accused persons or not. P.W Bachal who allegedly witnessed the incident has also failed to state the particular part of body of the deceased where he received the injuries at the hands of accused Ghulam Mustafa and at what distance they were present. Suffice to say that the presence of complainant and his witnesses at the scene of offence is doubtful. So far as involvement of accused Hakim is concerned, his name does not find place in the FIR and the complainant in his evidence stated that he identified accused Hakim later-on.

10. 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, there is no convincing, direct or circumstantial evidence available against the respondents to connect them with the commission of this offence.

11. We are fully satisfied with appraisal of evidence done by the learned trial Court and we are of the view that while evaluating the evidence, the difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice.

12. The over-all discussion involved a conclusion that the prosecution has miserably failed to establish the guilt against the respondents beyond any shadow of doubt, in these circumstances, the learned trial Court has rightly evaluated the evidence while recording acquittal of the respondents. It is well settled principle of law that in criminal cases every accused is innocent unless proved 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 judgment have not been found by us to be arbitrary, fanciful or capricious, requiring any interference by this Court. Consequently, the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly.

13. These are the detailed reasons of short order dated 19.04.2018, announced by us.

J U D G E