Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 26 of 2011

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of hearing : 05.11.2019.

Date of announcement : 12.11.2019.

Mr. Iftikhar Ali Arain, Advocate for appellant / complainant.

Mr. Aftab Ahmed Shar, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondents Sadam son of Dhani Bux Rajpar and Parvez son of Muhammad Hashim Junejo were tried by learned Additional Sessions Judge, Gambat in Sessions Case No. 25 of 2000 for offences under Sections 302, 201, 404, 34, PPC. After regular trial, vide judgment dated 18.04.2011, respondents were acquitted by the trial Court mainly for the following reasons:

“It is an admitted position that in this case the incident was not seen by any of the eye-witness. The case is made up only on the evidence of circumstantial evidence. It is the settled law that any case which is set up on the basis of circumstantial evidence, it is like a chain and in case any link is missing then the case of prosecution is suffered from infirmities and irregularities. The piece of evidence in the possession of prosecution in shape of last scene evidence and recovery of Suzuki and its Hood and knives which were used in the commission of offence. For proving the last scene evidence, prosecution had examined Qaimuddin, who had stated that on 15.7.2007, he along with deceased and driver Ghulam Nabi were present at Wagon stand where three persons namely Nadeem son of Bungul by caste Rajper resident of Jhando Shakh, Sadam son of Dhani Bux Rajper R/O Master Hadi Bux Rajper and Pervaiz Ahmed son of Mohammad Hashim by caste Junejo R/O Hingorja came there and they talked with the deceased and hired Suzuki from Sukkur. It is not possible that within the meeting of 5 to 10 minutes a witness of one city may know three persons with their full names, parentage and addresses though these three persons were not previously known to him. It is necessary to mention here that during the gossip this witness had not mentioned either in his 161 Cr.P.C. or 164 Cr.P.C statement that he had enquired or taken the NIC from these three accused. Therefore, the last scene evidence is not proved to the extent of statement of this person. The 164 Cr.P.C. statement of Qaim Hussain was recorded in absence of accused persons and after the first meeting with these accused this witness had identified the present accused before this court on 27.6.2006, while the incident took place on 15.7.2000 and it is not possible that after six years the accused could be identified by the witness who had seen them for five minutes. Jamaluddin who is ill-fate father of deceased Ghulam Nabi his evidence is of hearsay evidence and whatever had been stated by Qaimuddin and Ghous Bux he had parroted just that story. Moreover the dead body was recovered by the police but its neck was not recovered by the police during the course of investigation. Police had recovered the Suzuki and its Hood at the pointation of accused and Suzuki were put to identification parade before the 2^nd Class Magistrate, through its owner. PW. Muhammad Mithal who is mashir of recovery of the Suzuki and Hood had stated in his examination in chief that the Suzuki vehicle had no Hood of body and it was already removed. While Zaheer Hussain who is owner of the Suzuki had admitted in cross examination that the Hood was in its original position. It is the version of SHO that Hood of the said Suzuki was recovered from a separate place at the pointation of accused. It is incomprehensible that how separate a Hood was applied and attached on the Suzuki. This thing creates doubt in the proudent mind that when the Hood was separately recovered then on the next day identification of the said Suzuki and Hood then who, under what direction the same was fixed on the Suzuki. This thing shows that when Suzuki was recovered then it was having the Hood and separation of Hood and its recovery is foisted by the police upon the accused just to strengthen and to prove its case. Zahid Hussain the owner of Suzuki who had identified his Suzuki had stated that identification memo was prepared at P.S. when he came back after identification of the Suzuki in Town Hall in Ranipur. Moreover during the course of investigation when police recovered Suzuki, it is the case of prosecution that the color and raw material of the Suzuki was removed by the accused persons, but this material, just to prove its case, was neither collected by the police nor was produced before this court, therefore, the recovery of the Hood and Suzuki from the possession of accused is not proved by the prosecution. The report of the Chemical Examiner was produced before this court showing that the “Churis” and cloths were stained with blood but there is no blood matching of the deceased and his lost worn cloths so also “Churis” were recovered from the pointation of accused which may connect the accused for the commission of offence. As in the cases which are based on circumstantial evidence, all links should be continuously available in the chain and in case any link is missing then the benefit is to be extended to the accused. It is also settled law that defence has to create a dent in the case of prosecution while here the entire case of prosecution is repelete with count less dents, therefore, the prosecution has miserably failed to prove its case beyond doubt, hence point No.1 is answered as above.”

2. Mr. Iftikhar Ali Arain, learned advocate for the appellant / complainant argued that no doubt, this is the case of circumstantial evidence, but a Suzuki was recovered from the accused; that PWs had implicated the accused, particularly with regard to the hiring of taxi; that hatchet was also recovered on the pointation of the accused from the land. Lastly, argued that impugned judgment requires interference of this Court and acquittal of respondents may be converted to conviction.

3. Mr. Aftab Ahmed Shar, learned Additional Prosecutor General argued that appellant / complainant had moved an application to the Deputy Commissioner for exhumation of the dead body of the deceased (Ex.07), in that application, appellant / complainant had stated that his son namely Ghulam Nabi has been murdered by some unknown persons. Learned Additional P.G supported the judgment of the trial Court and argued that it requires no interference.

4. We have carefully heard the learned counsel for the parties and perused the material available on record.

5. In the present case, actual incident was un-witnessed. Prosecution story appears to be unnatural and unbelievable. Learned trial Court, while discussing point No.1, has assigned sound reasons for disbelieving the prosecution evidence. Acquittal once granted cannot be re-called, merely on the possibility of a contra view.

6. Therefore, we have come to the conclusion that trial Court has rightly acquitted the respondents and judgment of the trial Court is neither perverse nor arbitrary, but it is based upon the evidence which was insufficient for conviction. 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. ”

7. For the above stated reasons, there is no merit in this Acquittal Appeal, the same is dismissed.

J U D G E

J U D G E

Abdul Basit