Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S– 215 of 2019

Date of hearing : 17.02.2020.

Appellant/Complainant Muhammad Ali Leghari present in person.

Mr. Zulifqar Ali Jatoi, Additional P.G.

J U D G M E N T

NAIMATULLAH PHULPOTO, J.– Respondents Piyar Ali, Abdul Rasool, Muhammad Aslam, Lakhmir and Aamir were tried Civil Judge and Judicial Magistrate/Model Trial Magistrate Court, Mirwah in crime No.41 of 2017 of Police Station Station Mirwah (The State v. Piyar Ali and others) for offences under Sections 337-A(i), L(ii), F(iii), 147, 148, 149, 403, 504 PPC. After regular trial, respondent/accused has been acquitted by the trial Court vide judgment dated 23.10.2019, for the following reasons:

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“14.  In above discussed evidence PW Zulitkar has supported story of FIR and submitted that I.O recorded his evidence as well. no grievance is shown by him against police, remaining record of challan is also suggesting such story. As discussed above story of FIR and story mentioned on oath by PW Zulifkar to be similar, but complainant at time of his evidence submitted a unique story, examination in chief of complainant is reproduced below:

“ At the eight hours of the Night, I was going to the house of my father in law on motorcycle, while I reached at the Hut situated in the land of one Fatah Muhammad Laghari. I saw on the light of the motorcycle that accused namely Piyar Ali, Lakhmir, Faheem, Amir, Aslam and six unknown accused persons having the lathies with sharp edges in their hand were standing, accused Faheem had the pistol in his hand, caught me attacked with lathies, and accused persons closed my mouth with the romal.I tried to open the romal and raised the cries but accused persons again and again closed my mouth with romal. The accused persons asked me as to why I use to come on the land, thereafter accused persons were saying to one another that, the Sultan Ahmed Sahib had asked to not leave him alive and after tying him throw him the Mirwah canal, thereafter accused persons tried to tie me with the motorcycle and also tried to set the fire with intention to burn my body, thereafter ! resisted and accused persons could not tie me with the motorcycle and thereafter removing the romal from my mouth I raised the cries, which attracted the neighbours who informed my brother who was then present at the house of my aunty, regard to the incident, my brother pointed the light of the torch towards us and the accused on seeing the torch asked one another that someone is coming, thereafter accused persons took Rs.1,55000/- (one lac fifty thousand rupees) from the inner pocket of my coat, and asked one another to run as someone is coming. The accused Piyar Ali at the time of running opened the (nara) of the salwar and ran away in the house of accused Muhammad Aslam Thereafter I saw here and there but could not find any person thereafter I tried to stand up, and started to go to the house of the villagers, during this period accused persons used to say one another that Sultan Ahmed Sahib had ordered to not leave him alone, and after keeping the money will back and will kill him. But in this period I went to the desert side which was constituted at about 200 ft height. When I reached back side of the house of one Sher Muhammad I was tired and could not move forward. I called the Babul son of the Haji Sher Muhammad, on which the brothers of the Babul Noor Muhammad alias Nooral and other little brother came to me, who asked me that who am I? I informed him about me, and requested them to save me and accused persons will come again to kill me. Meanwhile a voice came from the original place of incident that who are you and come down, I informed him that these people are Rasool Bux and others and requested him for providing the protection. The brothers of the Babul took me towards their place and saved my life. I asked the brothers of the Babul to inform my brothers and in laws regard to my condition. They informed my family members on which my in laws and family members including my brother came there. My villagers also came there and took me on the vehicle to the PS, the police on seeing my injuries issued the letter to me for medical treatment and certificate, I was admitted in the Thari Mirwah hospital, where my father in law was with me. The unknown accused persons armed with hatchets also came in the hospital with intention to kill me. and issued the threats to me. I was admitted for night in the hospital and on 18.02.2017. I was referred to the Khairpur for further treatment and medical tests. Thereafter I came at PS, where I met with the SHO namely Abdul Malik Abro, who referred me to head morar Iran Ujjan for registering my FIR, the Iran after hearing my complaint drafted the FIR with his own words, and asked me that Sultan Sahib has insisted me. I produce the FIR bearing No.41/2017 at Ex.7 and say same bears my signature and thumb impression but the contents of the same are not the same which I had narrated to the author of the F.I.R. Thereafter I.O Abdul Ghafoor Jiskani came to me and asked me to give me NIC of mine and my witnesses. I refused to give the CNIC cards to the I.O and asked him to come with me to place of incident to form the scatch of the place of incident, on which  I.O asked me to accept whatever he says to me. Thereafter I.O visited the place of incident but refused to record and take the my coat and lathies which were present at the place of incident. The accused present in the court except accused Faheem are same. The unknown accused were thereafter identified by me as Qurban son of Fatah Muhammad, Ashique Ali son of Qurban, Madad Ali son of Naseer Muhammad, Subhan Ali son of Fatah Muhammad, Mansoor son of Abdul Rasool, and disclosed their names to I.O but he did not submitted the charge sheet against the identified accused persons.

Above bolded and underlined parts of depositions are unique assertion of facts by complainant which were never mentioned earlier before any forum including High Court by complainant and not even supported by deposition of his brother Zulifkar and Abdul Kareem.

15. Such details have two impacts; firstly along with above mentioned discrepancies and lacunas in prosecution version out rightly disowning contents of FIR by complainant has made it obvious that no conviction can be awarded accused persons on the basis of same. Secondly, complainant on oath has deposed facts which were of unique nature, not supported by available record rather appearing to be flimsy and naked lies requiring proceeding against complainant under section 193 P.P.C.

16. Hence for above detailed reasons and pointed discrepancies containing irreconcilable contradiction, allegations are not proved through documentary or oral evidence. Therefore, point No.01 is hereby held to be disproved and even flimsy in nature with false deposition of complainant attracting sections related to perjury punishable under section 193 P.P.C.

2. Appellant/Complainant Muhammad Ali Leghari submitted that prosecution has proved its case against respondents. He submitted that impugned judgment of the trial Court is based on misreading and non-reading of evidence. It is further submitted that trial Court has disbelieved strong documentary evidence without assigning sound reasons, and prayed for converting the acquittal to the conviction.

3. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General argued that trial Court has properly appreciated the evidence and acquittal of the accused / respondents is neither perverse nor based upon misreading of evidence. He has supported the judgment of the trial Court.

4. I have heard Appellant/Complainant Muhammad Ali Leghari, Mr. Zulifqar Ali Jatoi Additional P.G and perused the evidence available on record. Appellant / complainant in his evidence introduced new story which was different from the FIR. Both witnesses namely Zulfiqar and Abdul Karim, who are the brothers of the appellant have not supported the prosecution story as narrated by the appellant and show-cause notice has been issued to the complainant by the trial Court for giving the false evidence. Judgment of the trial Court is based upon sound reasons, neither the judgment of the trial Court is perverse nor arbitrary. Trial Court in the judgment has highlighted the contradictions/infirmities in the evidence of prosecution witnesses, on material particulars of the case. Judgment of the trial Court is based upon sound reasons. Appellant could not satisfy this Court that judgment of acquittal passed by trial Court is perverse or arbitrary. It is by now well-settled that scope of the acquittal appeal is quite narrow and limited. While hearing the acquittal appeal, this Court is not supposed to re-appreciate the evidence, but only Court has to see whether judgment of the acquittal is perverse or arbitrary. In this case, impugned judgment is based upon the sound reasons and requires no interference. Rightly, reliance is placed upon the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), wherein Hon’ble Supreme Court 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. ”

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

J U D G E

Irfan/PA.