Judgment
Sheet.
IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Cr.
Acq. Appeal No. D-03 of 2020.
Before :
Mr. Justice NaimatullahPhulpoto
Mr. Justice Zulfiqar Ali Sangi
Date
of hearing : 25.02.2020.
Mr. Gulsher
Ali Mangnejo Advocate for Appellant/Complainant.
Syed Sardar
Ali Shah D.P.G.
-.-.-.
J U D G M E N T
Naimatullah
Phulpoto, J. Through this Acquittal
Appeal, appellant / complainant Abdul Ghaffar son of Ghulam Akber Qureshi has
impugned the judgment dated 31.12.2019 passed by learned Additional Sessions
Judge-I/MCTC Naushehro Feroze in Sessions case No.494/2015 for offence under
Sections 302, 311 PPC. On the conclusion of trial learned Additional Sessions
Judge-I Naushehro Feroze vide Judgment dated 31.12.2019 acquitted the
respondent/accused Allah Bachayo Qureshi from the charges.
2. Brief
facts of the prosecution case as reflected in the impugned Judgment are as
under :-
“Pithily facts of the prosecution
case as gleaned from the FIR lodged by complainant Abdul Ghaffar slo Muhammad
Ismail Qureshi on 05.9.2015 @2000 hours at PS Bhiria Road are that he
cultivates land on Harap and his cousin Abdul Malik so Ghulam Mustafa by caste
Qureshi aged about 18/19 years used to do labour. Yesterday evening complainant
came to Bhina Road town with his work and after finishing work, he along with
his cousin Abdul Malik S/O Ghulam Mustafa Qureshi, brother Abdul Hameed Qureshi
and cousin Sadaruddin s/o Sikandar Al Qureshi together were returning back to
village, when at about 8.30 pm, they reached at the curve of katcha path where
on torch light they saw & identified each 1. Dilshad alias Diloo s/o Shahmir Lashari armed with pistol, 2. Gul
Muhammad s/o Abdul Raheem Brohi
armed with pistol and two
unidentified persons armed with pistols who were seen on torch light properly and can be identified, if seen again, they pointed
their pistols upon complainant party and
attempted to commit
robbery from them, as such,
complainant party resisted during which accused Dilshad alias Diloo Lashari made
straight fire from his pistol at them which hit to Abdul Malik
Qureshi who raising cries
fell down while other accused persons made aerial firing to create harassment On firearm
reports and cries nearby villagers raising hakkals came running there and on
seeing them all accused persons taking advantage of cane crops made their
escape good. Complainant party found that his cousin Abdul Malik was having
firearm injury at his lumber region, hence, immediately shifted him to Bhiria
City Hospital after obtaining letter from PS Bhiria Road wherefrom he was
referred to Nawabshah Hospital for medical treatment Complainant after getting
the injured Abdul Malik Qureshi admitted at Nawabshah hospital, appeared at PS
and reported the incident under sections 17(1) & 17(2) Offences
Against Property (Enforcement of Hudood) Ordinance, 1979 & 337-H (ii), 34
PPC. Subsequently injured Abdul Malik succumbed to his injuries and expired in
the Nawabshah hospital, then brought the dead body of deceased at RHC Bhiria
City where police came and after completing legal formalities including
postmortem handed to his brother Abdul Khalique for funeral ceremony. During
investigation, complainant got his further statement U/s 162 Cr.P.C on 16.9.2015 wherein upon discloser of PW Abdul
Hameed & others introduced the name of actual culprit as Allah Bachayo s/o Abdul Qadir Qureshi while exonerated accused
Dilshad alias Diloo Lashari & Gul Muhammad Brohi who were nominated in the
FIR, subsequently 1O/Inspector Abdullah Khan Awan arrested accused Allah
Bachayo, got his confessional statement & statements U/s 164 Cr.P.C of PWs
as well as complainant before learned Judicial Magistrate.”.
3. On the conclusion of the
investigation, challan was submitted against the respondent/accused Allah
Bachayo under Sections 302, 311 PPC whose name was introduced by complainant
during his 162 Cr.P.C statement and other P.Ws, while letting of co-accused Dilshad
alias Diloo and Gul Muhammad who were nominated in the FIR.
4. Trial Court framed the
charge against respondent/accused for offence under sections 302 read with
Section 311 PPC, to which respondent/accused pleaded not guilty and claimed to
be tried.
5. At the trial, prosecution
examined four (10) PWs and prosecution side was closed.
6. Statement of accused was
recorded under Section 342, Cr. P.C in which appellant/accused claimed false
implication in this case and denied the prosecution’s allegations. He did not
examine himself on oath nor produced any witness in his defense.
7. Learned trial Court after
hearing learned counsel for the parties and assessment of the evidence, by
assigning sound reasons in points Nos.1 and 2 of the impugned judgment, acquitted
the accused vide judgment dated 31.12.2019, for the following reasons. The
relevant para whereof is re-produced as under :
“…
There is inordinate delay of about 23 hours in registration
of FIR without any plausible explanation though the complainant party
initially came at police station and obtained letter for treatment of injured
Allah Bachayo which suggests that case had been registered after consultation
and deliberation. I am fortified with
unreported recent judgment
dated 27.8.2019 passed by
Honourable High Court of Sindh, Bench at Sukkur in Cr. Acquittal Appeal No.D-01/2003 Re: Gulab alias
Jamaluddin Vs Ghullam Muhammad & others. It is very
surprising that complainant in his FIR has specifically mentioned that they on
torch light saw & identified accused Dilshad alias Diloo & Gui Muhammad
and during their resistance, they made fire upon them which hit to deceased and
subsequently he took summersault and given totally different version in his further
statement U/s 162 Cr.P.C
recorded on 16-9-2015 which not only creates serious doubt in the veracity of
alleged incident but collapse the entire prosecution superstructure. It is
settled principle of law that the statements of witnesses are ought to have been recorded promptly without
giving them any opportunity to improve upon and subtract from what they had
seen and such delay would be fatal and sound death knell for the prosecution
case. Reliance is placed on 2017 SCMR 486. Even otherwise law does not provide
recording of further statement. In a case of Muhammad Yakoob & others V/s The State reported in 2007 YLR 534
wherein Honourable Lahore High Court has held which reads as under;
Criminal trial----Supplementary statement----No
provision exists in Cr.P.C about supplementary statement----Generally such
statement is recorded to fill the lacuna in the prosecution case.
In a case of Muhammad Aslam versus The
State reported in 2019 MLD 973 wherein Honourable High Court Sindh Bench @
Sukkur has held which reads as under;
Criminal
trial----Further statement----Further statement had no value in law.
Moreover it has also come
in evidence that co-villagers reached at the place of incident and accompanied
injured towards police station as well hospital but not a single person has
been shown as witness to corroborate version of the complainant meaning
thereby, the alleged incident has not taken place in the fashion as set-up by
prosecution. So far as recovery
of pistol from accused Allah Bachayo is concerned. According to prosecution
case the alleged recovery was effected on 17-9-2015 whereas sent to Incharge
FSL, Larkana through SSP, Naushahro Feroze vide letter No.PB-9279-80/2015 dated 21.9.2015 and received by
laboratory on 28.9.2015 for which prosecution has not furnished any plausible
explanation as to why it was not sent promptly therefore apprehension of
tempering with parcel cannot be ruled out and such report losses its legal
sanctity. It is also pertinent to mention here that neither name of special
messenger has been given through which the case property was sent to FSL nor
his statement 161 Cr.P.C was recorded. It is also worthwhile to mention
here that neither copy of register No. 19 has been produced to show that case
property was deposited in Police Malkhana and subsequently taken out for
sending it to FSL nor even produced copies of departure/arrival entries of
special messenger/police official whereby he took the case property from Police
station and after depositing it with FSL returned back. It is needless to
remark that confession statement U/S 164
Cr.P.C has never been considered ( sufficient to hold the accused guilty on a
capital charge unless strongly corroborated by tangible evidence coming
from unimpeachable source which is lacking in this case, therefore, in my view
this piece of evidence is entirely insufficient to hold the accused
guilty on such a charge. Reliance is placed upon 2016 SCMR 1144 and 2017 SCMR
898. So far as testimony of remaining witnesses is concerned, which
is based upon circumstantial evidence, is not sufficient to saddle the
present accused with commission of offence.
So far as
medical evidence is concerned, it is settled principle of law that medical
evidence is type of supporting evidence, which may confirm the ocular account
with regard to receipt of injury, nature of the injury, kind of weapon used in
the occurrence, but not able to identify the assailants. Reliance is placed on
2018 P.Cr.L.J 570 Balochistan. It has been now settled that conviction
must be based on unimpeachable evidence and certainty of guilt and any doubt
arising in the prosecution case must be resolved in favour of the accused. It
has now been settled that for giving benefit of doubt to an accused, there need
not be a number of circumstances to prove the innocence of accused; even single
circumstance creating reasonable doubt is sufficient for the acquittal of an
accused. It is settled principle of law that prosecution has to prove its case
beyond any shadow of doubt by producing satisfactory, tangible, valid, solid
trustworthy, cogent, consistent, unimpeachable, coherent and confidence
inspiring evidence and if any slightest doubt is created benefit of the same
must go to the accused and it would be sufficient to discredit to the
prosecution story and entitle the accused for acquittal. Moreover, it has been
held by Honourable Apex Court that accused is always to be considered as the
most favorite child of law and every benefit of doubt goes to him regardless of
fact whether he has taken any such plea or not. Reliance is placed on 2018 SCMR
772 which reads as under;
Benefit of doubt---Scope---While giving the benefit of doubt to an accused it was not
necessary that there should be many circumstances creating doubt---If there
was a circumstance which create reasonable doubt in a
prudent mind about the
guilt of the accused, then the accused would be entitled to the benefit of such
doubt, not as matter of grace and concession, but as a matter of
right."
In a case of ABDUL JABBAR Versus The
STATE reported in 2019 SCMR 129, the Honourable Supreme Court of Pakistan has
held which reads as under:
Benefit of doubt---Scope---Once a single loophole was observed in a case presented by the prosecution, such as
conflict in the ocular account and medical evidence or presence of eyewitness being doubtful, the benefit of
such loophole/lacuna in the prosecution case automatically went in favour of an
accused.
From the above detailed discussion
it has been established that in the present case, presence of complainant and
PWs was highly doubtful and they have materially contradicted to each other on
material particulars of the case, therefore both points are answered
accordingly.”
8. Complainant
being dissatisfied with the acquittal of the accused has filed this appeal.
9. Learned advocate for the
appellant/complainant mainly contended that respondent/accused made confession,
it was true and voluntary but that has been disbelieved by the trial Court
without assigning the sound reasons. It is further argued that in the further
statement the names of two more culprits were introduced in the case of
prosecution but trial Court without assigning the reasons disbelieved the
prosecution evidence. Lastly, it is submitted that judgment of the trial Court
is perverse and arbitrary and prayed for converting acquittal order to the
conviction.
10. Syed Sardar Ali Shah D.P.G supported
the judgment of the trial Court and argued that further statement was made by
complainant Abdul Ghaffar on the basis of statement of PW Abdul Hameed and
evidence of PW Abdul Hameed was based upon hearsay. There was delay of 23 hours
in lodging of the FIR for which no plausible explanation has been furnished. It
is argued that confessional statement was not corroborated by some other piece
of evidence and it was also not voluntary. Lastly, it is argued that judgment
of the trial Court is based upon sound reasons and after acquittal respondent
has presumption of double innocence. He
relied upon the case of Dad Muhammad vs. State (PLJ 2020(Cr.C) 110).
11. We
have heard learned counsel for the parties and perused the evidence as well as
impugned judgment carefully. In the present case there was delay of 23 hours in
lodging of the F.I.R for which no plausible explanation has been furnished.
Trial Court has rightly held that false implication of respondent/accused could
not be ruled out. So far confessional statement of respondent/accused is
concerned, it was not materially corroborated by some other piece of evidence
which has also been rightly disbelieved by the trial Court. There are many other serious contradictions and flaws in
the other pieces of evidence collected by the prosecution as after discussing
some evidence we have observed hereinabove that the prosecution story was
doubtful, hence, we do not intend to discuss all the evidence in detail as
under law a single circumstance available in the case
which creates reasonable doubt in a prudent mind about the guilt of
the accused is sufficient to acquit him of the charge.
12. We also deem appropriate to observe here that the instant appeal has
been filed against acquittal order and it is cardinal principle of
criminal jurisprudence that an accused, who has been acquitted of the
charge is credited with two advantages, one; the innocence available
to him at the pre-trial stage and the other which is earned by him
on the basis of the acquittal order passed by the Court of competent
jurisdiction and acquittal order can only be interfered with when
the same is found perverse, arbitrary, whimsical, unreasonable, artificial, ridiculous,
shocking in nature, based on misreading of material evidence,
highly conjectural or based on surmises unwarranted under law, but in the instant case no
such eventuality is found available. There is plethora of
judgments on the point, however, for instance reference may be made
to a case reported as Waseem Hussain
and 2 others v. Muhammad Rafique and another [2017 SCR 428],
wherein, it has been held that:
"The
instant appeal has not been filed against the conviction rather the same has
been filed against acquittal order and it is settled principle of law that an
accused, when acquitted of the charge, enjoys double presumption of innocence
and once an acquittal has been made, the same can only be set aside if the
Court comes to the conclusion that the order is capricious, fanciful, perverse,
arbitrary and against the settled norms of justice."
13. After evaluating the material available
on and
the relevant law on the subject, we
are
unanimous on the point that the prosecution has failed to
substantiate the accusation by producing confidence
inspiring evidence against the accused in the case in hand as not a
single chain of the link is proved beyond reasonable doubt. Learned trial Court has committed
no illegality while acquitting the accused/respondent. Even otherwise, this is the
acquittal appeal and in the acquittal appeal after acquittal there is double
presumption of the innocence of the accused and their liberty cannot be curtailed
lightly. Judgment of the trial Court appears to be justified and well-reasoned.
Learned counsel for the appellant / complainant has not been able to point out
any serious flaw or infirmity in the impugned judgment. View taken by the
learned trial Court is a possible view, structured in evidence available on
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, impugned view is found on fringes of
impossibility, resulting into miscarriage of justice, freedom cannot be
recalled.
14 . This Criminal Acquittal Appeal is without
merit and the same is dismissed.
J U D G E
J U D G E
Irfan/PA
It is settled
law that ordinary scope of acquittal appeal is considerably narrow and limited
and obvious approach for dealing with the appeal against the conviction would
be different and should be distinguished from the appeal against acquittal
because presumption of double innocence of accused is attached to the order of
acquittal. In the case of The State and others v. Abdul Khaliq and others
(PLD 2011 Supreme Court 554), following guiding principles have
been laid down for deciding an acquittal appeal in a criminal case:
“16. We
have heard this case at a considerable length stretching on quite a number of
dates, and with the able assistance of the learned counsel for the parties,
have thoroughly scanned every material piece of evidence available on the record;
an exercise primarily necessitated with reference to the conviction appeal, and
also to ascertain if the conclusions of the Courts below are against the
evidence on the record and/or in violation of the law. In any event, before
embarking upon scrutiny of the various pleas of law and fact raised from both
the sides, it may be mentioned that both the learned counsel agreed that the
criteria of interference in the judgment against ' acquittal is not the same,
as against cases involving a conviction. In this behalf, it shall be relevant
to mention that the following precedents provide a fair, settled and consistent
view of the superior Courts about the rules which should be followed in such
cases; the dicta are:
Bashir Ahmad v. Fida Hussain and 3 others (2010
SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352),
Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v.
Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and
others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ
926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53),
Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2
others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif
and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and
another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD
1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR
223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir
Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The
State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298),
2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v.
Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996
SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).
From
the ratio of all the above pronouncements and those cited by the learned
counsel for the parties, it can be deduced that the scope of interference in
appeal against acquittal is most narrow and limited, because in an acquittal
the presumption of innocence is significantly added to the cardinal rule of
criminal jurisprudence, that an accused shall be presumed to be innocent until
proved guilty; in other words, the presumption of innocence is doubled. The
courts shall be very slow in
interfering with such an acquittal judgment, unless it is shown to be perverse,
passed in gross violation of law, suffering from the errors of grave misreading
or non-reading of the evidence; such judgments should not be lightly interfered
and heavy burden lies on the prosecution to rebut the presumption of innocence
which the accused has earned and attained on account of his acquittal. It has
been categorically held in a plethora of judgments that interference in a
judgment of acquittal is rare and the prosecution must show that there are
glaring errors of law and fact committed by the Court in arriving at the
decision, which would result into grave miscarriage of justice; the acquittal
judgment is perfunctory or wholly artificial or a shocking conclusion has been
drawn. Moreover, in number of dictums of this Court, it has been categorically
laid down that such judgment should not be interjected until the findings are
perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis
supplied). The Court of appeal should not interfere
simply for the reason that on the re-appraisal of the evidence a different
conclusion could possibly be arrived at, the factual conclusions should not be
upset, except when palpably perverse, suffering from serious and material
factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR
635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281)
that the Supreme Court being the final forum would be chary and hesitant to
interfere in the findings of the Courts below. It is, therefore, expedient and
imperative that the above criteria and the guidelines should be followed in
deciding these appeals.”
12. In
the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others(2019
SCMR 1315), Hon'ble Supreme Court has held 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. I have heard learned counsel
for the parties and perused the evidence as well as impugned judgment
carefully. Admittedly there was one day
delay in lodging in the FIR, for which no plausible explanation has been
furnished. It is the case of prosecution that complainant soon after the
incident went to the nekmard Zahid Ali Lakho and narrated him the incident but
he has not been examined by the prosecution. Trial Court has observed that best
piece of evidence has been withheld by the prosecution. Presumption could be drawn
that if he had been examined he might have not been supported the case of prosecution.
Admittedly, it was night time incident, trial Court in the judgment has
mentioned that source of light has not been disclosed by the complainant but in
the evidence, it has come on record that bulbs were burning but those bulbs
were not recovered by the Investigation Officer during investigation. Findings
of the trial Court in this regard appears to be justified. Moreover, there was
no recovery of the stolen cow from the respondents. I have minutely examined
the evidence. So far the ingredients of section 457, 380 PPC are concerned,
those ingredients are not satisfied from the evidence. Even otherwise this is
the acquittal appeal and in the acquittal appeal after acquittal there is
double presumption of the innocence of the accused and their liberty cannot be
curtailed lightly. Judgment of the trial Court appears to be justified and
well-reasoned. Learned counsel for the appellant /
complainant has not been able to point out any serious flaw or infirmity in the
impugned judgment. View taken by the learned trial Court is a possible view,
structured in evidence available on 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,
impugned view is found on fringes of impossibility, resulting into miscarriage
of justice, freedom cannot be recalled.
14 . This Criminal Acquittal Appeal is without
merit and the same is dismissed.
J U D G E
Irfan/PA