Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 133 of 2018

Date of hearing : 28.10.2019.

Mr. Rab Dino Makwal, Advocate for appellant / complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Iqbal Ahmed son of Dodo Khan Dakhan has impugned the judgment dated 30.08.2018. Respondents / accused (1) Nihal Khan son of Moula Bux Soomro, (2) Wazeer Ali son of Nihal Khan Soomro, (3) Subhan Ali son of Moula Bux Soomro and (4) Nazeer Ahmed son of Nihal Khan Soomro were tried by learned Civil Judge & Judicial Magistrate-II, Kandiaro in Criminal Case No.173/2017 for offences under Sections 337-A(ii), 337-H(2), 147, 148, 149, PPC. On the conclusion of the trial, vide judgment dated 30.08.2018, above named respondents / accused were acquitted by the trial Court.

2. Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“Brief facts of the prosecution case as per the contents of F.I.R., which was lodged on 07.11.2017 are that “Complainant has agricultural land in Deh Shahmeer Dero, in which cotton crops are planted. On 07.11.2017 complainant’s nephew namely; Allah Rakhio son of Allah Wadayo was tethering his cattle at agricultural land of complainant and complainant namely; Iqbal Ahmed Dakhan along with his brother Sikandar, and uncle Taj Muhammad were available there for work at agricultural land, at about 02:30 pm, they saw that five persons, whom they identified as (1) Subhan armed with hatchet, (2) Nihal having lathi in his hand, (3) Nazeer, (4) Ghulam Shabir and (5) Wazeer having lathies in their hands came there, on coming they used insulting language with Allah Rakhio, and said to him that his cattle have entered into their land for grazing. In the meantime, complainant and witnesses also rushed towards them; Allah Rakhio replied to accused persons that his cattle have not entered into their agricultural land restrained them from using unparliamentarily language, merely on saying so, accused Subhan caused hatchet blow to Allah Rakhio on his hand, who fallen on the ground, and other accused persons caused lathi blows to him, on that complainant party tried to come forward, but accused Subhan took pistol from the folder of his shalwar and made aerial firing with intent to cause harassment to them; People of vicinity gathered there on the noise of firing, due to that accused persons left away towards their houses, while using abusive language with them. Hence, this F.I.R. was lodged. ”

FIR was recorded on 07.11.2017 at P.S Mohabbat Dero, District Naushahro Feroze vide Crime No.62/2017 for offences under Sections 337-A(ii), 337-H(2), 147, 148, 149, PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under Sections 337-A(v), 337-H(2), 147, 148, 149, PPC.

4. Trial Court framed the charge against the accused at Ex.02. They pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined five (05) prosecution witnesses and then prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr. P.C at Ex.09 to 12, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in their defence and declined to give statement on oath in disproof of prosecution allegations.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence, vide judgment dated 30.08.2018, acquitted the above named accused.

8. Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

9. Learned counsel for the appellant / complainant mainly contended that it was injury case. Trial Court has not appreciated the evidence according to the settled principle of law. It is argued that contradictions were minor in nature and observations made by the trial Court are not based upon the available record. Lastly, it is contended that judgment of the trial Court is perverse and acquittal may be converted to the conviction.

10. Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General supported the judgment of the trial Court and argued that there were several infirmities in the prosecution case and rightly acquittal has been ordered by the trial Court.

11. I have carefully perused the impugned judgment and relevant record. It appears that trial Court, vide judgment dated 30.08.2018, acquitted the accused mainly for the following reasons:

“ I have perused the entire evidence produced by prosecution in support of the charge and come across that there are major contradictions and discrepancies in the evidence of prosecution witnesses with respect to role of accused persons at the time of incident, the time and role of witnesses, and the gathering of people of vicinity at the time of preparation of memo of site inspection, the mode of I.O. at the time of preparation of memo of site inspection, and many others. There is nothing but absolute absurdity on the part of prosecution witnesses. It is firmly settled that ocular evidence must be direct, consistent, coherent, unimpeachable and complete in all respect. If it fails to attain such test then such evidence cannot be relied upon. In the present case, the evidence of the witnesses has not touched such standard and therefore, it requires independent corroboration, which is lacking in the present case. Therefore, the ocular evidence is not reliable; thus, the same cannot be made base for conviction its lacks credibility.

Observation of the relevant material on record, depositions of PWS and submissions disclosed that there are many material flaws, infirmities and lacunas in the case of prosecution, which are necessary to be reproduced here for just and proper adjudication of matter:

· There is delay of about 5 hours and 30 minutes in lodging of F.I.R. without any plausible explanation on the part of prosecution. Thus, the delay in lodging of F.I.R is attributed to deliberation, consultation and fabrication. It is held in case reported in NLR 1990 criminal P. 521 by the Honorable High Court of Sindh that “Delay in lodgment of F.I.R. indicated that time was consumed in connecting a false story”. Importance of F.I.R. could hardly be overestimated from the stand point of accused. Delay in lodging F.I.R. quite often would result in establishing that same was a creature of afterthought. This view was observed in the case of Liaquat Ali V. the State 2008 M.L.D 1611. Further I rely upon case law reported in 2017 P.Cr.L.J 114.

· Complainant stated in his evidence that “It is correct to say that I did not mention the names of people of vicinity, who gathered at the time of incident. About 10 / 15 people of vicinity gathered at the place of incident, and I don’t remember their names” Neither the names of said people have been cited in challan nor have they been associated as witnesses in this case for evidence. With respect to this I put my reliance on case law reported in 2017 P.Cr.L.J 622 authored by Hon’ble Justice Shaukat Aziz Siddiqui, wherein it was held that: “Best and independent evidence was not produced by the prosecution in the circumstances, such lacunae in prosecution case were fatal Presumption would be resolved against prosecution as there was no independent coronation of the statement of complainant----”. It is settled law that merely on the basis of F.I.R. an accused cannot be convicted reliance is placed on case law reported in 2017 P.Cr.L.J 25.

· The astonishing fact is that how it is possible that accused persons only caused injuries to PW.2 Allah Rakhio, and not to other persons who were available at the site, at the time of incident, thus, it is beyond logic and perception that neither complainant nor PW.3 interfered / interrupted to rescue PW.2 nor they sustained any injury. Therefore, the verbatim of complainant and PWs is doubtful and lacking cogent, convincing and independent evidence. Therefore, the story of prosecution is not confidence inspiring. And as far as basic principle of reappraisal of evidence is concerned it is well established principle borrowed from case law reported in 2001 S.C.M.R. 424 that “In case such witness is unreliable his evidence cannot be utilized for the passing of conviction against the accused”.

· Moreover, during the cross-examination to eye-witnesses of incident, the learned counsel of accused persons asked some questions regarding hostility and previous enmity between the complainant and accused persons, to which complainant admitted / answered that “Asghar Dakhan Soomro is my cousin. It is correct to say that accused Nihal Soomro lodged F.I.R. No. 23 / 2013 under section 302 of PPC against Asghar Soomro and others, and same case is pending before the court of Honourable Additional Sessions Judge, Kandiaro” Besides, PW.3 admitted in his cross examination that “It is correct to say that Ashraf Soomro lodged F.I.R, bearing No. 59 / 2017 at P.S Kandiaro against present accused persons. It came into my knowledge that accused persons were acquitted from the Honourable Court in that case of Asharaf Soomro. It is correct to say that Abdul Ghaffar Dehraj is landlord called us and accused persons to make private faisla / mediation in that murder case, but accused persons refused to enter into compromise with accused persons of murder case”. Above admitted facts are suffice to say that there is previous hostility and antagonism between the accused persons and complainant party. It is bedrock principle reported in case law “2017 YLR 1383 (Lahore High Court)” that “Enmity was a Double edged weapon, which cut both ways---If on one side, enmity provided a motive for the accused to commit an offence on the other hand, equally provided opportunity to the complainant to implicate his enemy”. Moreover, it is also held in case law reported in 2013 MLD 1117 (Karachi) Sindh High Court that: “Enmity is a Double edged weapon, it prompts one to cause harm to his adversary, and can be a factor to rope others falsely”. Although the previous enmity and hostility is not always fatal to prosecution case but from the above observations and case laws of Hon'ble Superior courts there is no doubt that due to previous hostility and issue over murder case complainant falsely implicated accused persons in this case. There is nothing but absolute absurdity on the part of prosecution witnesses. Hence, the authenticity of the allegation of enmity could not, therefore, be ignored. ”

12. It appears that trial Court has rightly observed that complainant was accompanying PWs Sikandar and Allah Rakhio, and there was enmity between the parties. It is alleged that all the five accused were armed with hatchet and lathies, then as to how only one single blow was caused to the PW / injured. I have examined the evidence of PWs in the light of Article 129 of the Qanun-e-Shahadat Order, 1984, and found that conduct of PWs was highly questionable. No effort was made by complainant Iqbal Ahmed and PW Sikandar to rescue injured Allah Rakhio. The contradictions in the evidence of the prosecution witnesses clearly show that material facts have been suppressed by the prosecution. Learned counsel for the appellant / complainant could not satisfy the Court about the infirmities / contradictions highlighted by the trial Court in the judgment. Judgment of the trial Court is neither perverse nor arbitrary. Hon’ble Supreme Court in the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), has observed as under:

“ 2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed. ”

13. For the above reasons, this Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit