Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S – 157 of 2019
Date of hearing : 06.12.2019.
Mr. Nusrat Hussain J. Memon, 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 Mst. Amina has impugned the judgment dated 22.08.2019. Respondents
/ accused Abdul Razaque son of Abdul Malik Bhutto and Mohsin Hassan son of
Abdul Razaque Bhutto were tried by learned Judicial
Magistrate-II, (MCTC), Ghotki in Criminal Case No.214/2019 for offences
under Sections 337-F(v), 506/2, 34, PPC. On the conclusion of the trial, vide
judgment dated 22.08.2019, 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:
“Precisely, facts of the case as contained in FIR are
that, per complainant there was an annoyance in between her husband and accused Abdul Razaque over money
transaction and the accused party used to issue threats of
dire-consequences to them. Complainant further alleges that, on 04.08.2018 she
along with her husband Abdul Razaque and son Abdul Wahab was going for her
medical checkup, in meantime at Mir Pur Minor Bridge they were stopped by
accused Abdul Razaque, Mohsin Hassan who had iron rods in their respective
hands and two unidentified accused persons who were carrying lathies in their
hands, the accused persons arrived in a white color car. Per complainant
accused Abdul Razak and Mohsin Hassan inflicted injuries on her person, whereas
unidentified accused inflicted lathi injuries on the person of her husband and
went away while issuing threats of murder. Hence this FIR was registered.”
FIR was recorded on 27.09.2018 at P.S Mirpur
Mathelo, District Ghotki vide Crime No.139/2018 for offences under Sections 337-F(v),
324, 506/2, 34, PPC.
3. On
the conclusion of the investigation, challan was submitted against the accused
under Sections 337-F(v), 506/2, 34, PPC.
4. Trial
Court framed the charge against the accused. They did not plead guilty and
claimed to be tried.
5. At
the trial, prosecution examined six (06) prosecution witnesses. Thereafter, prosecution
side was closed.
6. Statements
of accused were recorded under Section 342, Cr. P.C at Ex.12 and 13, 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 22.08.2019, 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 argued 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 P.G argued that there were several infirmities in the prosecution case and judgment of the trial
Court is structured on sound reasons and acquittal order is neither perverse
not arbitrary. He supported the impugned judgment of the trial Court and prayed
for dismissal of the Acquittal Appeal.
11. I
have carefully perused the impugned judgment and relevant record. It appears
that trial Court, vide judgment dated 22.08.2019, acquitted the accused mainly for
the following reasons:
“ A glance over back history of the
matter in hand would suggests that, admittedly alleged incident took place on
04.08.2018 and the FIR was registered on 27.09.2018 with a delay of one
month and twenty two days, which too without proper explanation. It
is settled hindsight of law that, in absence of plausible explanation; the
delay in lodging of FIR would be fatal to prosecution case. In case of Noor
Muhammad V. the State reported in (2010
SCMR 97) Honorable Supreme Court of Pakistan has observed that, “if there is any delay in lodging the
FIR or commencement of investigation, it gave rise to doubt; which could not be
extended to anyone else except accused”.
A conscious eye over the deposition of eye
witnesses of scene makes the happening of incident more dubious; the
complainant has deposed that, existence of an enmity in between her husband (PW
Abdul Razak) and accused persons, accused Abdul Razak and Mohsin Hassan who
admittedly belong to Ghotki town at the right time reached at place of vardat,
stopped complainant party and inflicted injuries on her person, here it is
surprising to note that accused Ahdul
Razak and Mohsin Hassan caused injuries on the person of complainant/lady and left PW Abdul Razak
and Abdul Wahab to depose
against them which too in existence of an annoyance with
Abdul Razak; complainant further
claims unidentified accused inflicted Jathi injuries on the person of her
husband Abdul Razak but neither any
memo of injuries of PW Abdul Razak is on record nor he has ever visited hospital, even at his evidence he
admitted that he deliberately did not
visit the doctor; which
suggests a malafide on the part of complainant
party and surfaces the story to be unnatural, which does not appeal to a
prudent mind. Before moving
further, it is also crucial to mention here that, MLC of injured/complainant Mst. Amina was
challenged and learned Medical Board vide order dated 27.05.2019 opined that, alleged fracture is due to fall on ground accidently. Thus; MLC of injured/complainant Mst. Amina
lost its validity.
Be
that as it may, but when said injured/ complainant Mst. Amina stepped
into witness she deposed
that, just after the incident she along with her husband went at PS, obtained letter for her
medical treatment and moved to hospital and she claims she remained admitted for three days at Mirpur
and then was referred to Sukkur; whereas WMO denied the same and has
deposed lady injured was referred on same day; on other hand, the letter issued for her medical treatment
shows, she went at hospital on
06.08.2018 after two days of alleged
incident, she herself belied with her
contents. The complainant has stated in her FIR that alleged incident
took place at 05:00 P.M and when she
stepped in witness box she deposed that, at 05:00 P.M she reached at PS. No particulars of alleged bike on which the
complainant party was riding or of the car on which accused arrived have
been given; even PW Abdul Wahab (son of
complainant) has not been examined; he claims that he was with complainant and it is strange to
note her mother was hit by
accused persons in his presence and he (PW) did not react, it’s also seems an
un-natural story. If this is position of prime witnesses of the prosecution, then how this court rely on
testimony of such witnesses and award
punishment to accused named in FIR; when the own narration of injured
witness is negated by the medical evidence regarding injury sustained by her. Reliance is placed on case
titled Muhammad Irshad & Others V.
The State (1999 SCMR 1030).
One step ahead, a careful
perusal of deposition of medical officer coupled with provisional medical certificate of injured lady Mst. Amina
shows that, per complainant incident took place on 04.08.2018
and as per medical record complainant/injured
visited hospital on 07.08.2018 on 3rd day of incident the
medical officer opines the duration of injuries
in provisional MLC as four days; one day prior to date of incident, it
also stamps the incident as doubtful. It is also strange to note that, there is
gape of about 52 days in memo of injuries and memo of place of vardat but same mashirs have acted in
both memos, their act surfaced them to be interested witnesses.
Another
jolt in prosecution story is that, investigation officer did not produce important roznamcha entries at his
evidence which he kept during course of investigation,
it also seems violation of rule 22.48 of Police Rules 1934, and such cursory is diluting the prosecution
case too. “Reliance is placed on case of Abdul Sattar V. The State” (2002 P.Cr.L.J 51).
It
is an axiomatic principle of criminal law that, not many circumstances creating
doubt in prosecution case are required but only one circumstance creating doubt
in the prosecution case is enough to acquit the accused. Reliance in this
regard is placed on the case of Muhammad
Akram V. The State 2009 SCMR 320, wherein Hon’ble Supreme Court of Pakistan has held that, “For giving benefit of doubt it is not
necessary that there should be many circumstances creating doubt, if there is a
circumstance which creates reasonable doubt in a prudent mind about the guilt
of the accused then accused will be entitled to the benefit not as a matter of
grace and concession but as a matter of right.” The prosecution case in hand is dipped in sea of doubts. Even a slight
break, in chain of circumstances would definitely make the grip of chain loose
upon accused, especially when the same is built upon basis of
feeble evidence.”
12. In
the present case, Mst. Amina received injury on 04.08.2018 at 05:00 p.m., but
after getting the letter from the concerned police, she went to the hospital on
07.08.2018. Medical Board has opined that injury sustained by the injured lady
was the result of falling on the ground. It has also come in evidence that PW
Abdul Razzaq sustained injuries in the incident, but there is no medical
corroboration to that extent. Incident had occurred on 04.08.2018, but FIR was
lodged on 27.09.2018 after seeking directions from the Ex-Officio Justice of
Peace. Delay in lodging of the FIR has also not been explained. 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