Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 24 of 2016

Date of hearing : 02.12.2019.

Mr. Mushtaque Ahmed Shahani, Advocate for appellant / complainant.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Zubair Ahmed has impugned the judgment dated 29.01.2016. Respondents / accused (1) Fareed son of Nizamuddin, (2) Hafeez son of Nizamuddin, (3) Sajjan son of Daud, (4) Sanaullah son of Fazil, (5) Shafi Muhammad son of Raza Muhammad, (6) Sadiq son of Raza Muhammad and (7) Hashim son of Ahmed, all by caste Shaikh, were tried by learned 2^nd Civil Judge & Judicial Magistrate, Rohri in Criminal Case No.45/2015 for offences under Sections 353, 504, 447, 337-F(v), 392, 337-L(2), 506/2, PPC read with Sections 26 and 63 of Forest Act, 1927. On the conclusion of the trial, vide judgment dated 29.01.2016, 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:

“Facts in nutshell are that complainant Zubair Ahmed S/o Ameer Bux Sirohi lodged the instant FIR and narrated that on 16.4.2015 at about 03.00 pm at the forest land near village Chibhir Jatoi, the above named accused persons occupied government land belonging to the forest department and intentionally abused the complainant and deterred the complainant Zubair Ahmed from performing his official duties, caused injuries to the complainant and on the show of force robbed Rs.2000/-. Then FIR was registered against the above named accused persons.”

FIR was recorded vide Crime No.15/2015 registered at P.S Jhangro, District Sukkur for offences under Sections 353, 392, 447, 448, 504, 506/2, 337-L(2), PPC read with Sections 26 and 63 of Forest Act, 1927.

3. On the conclusion of the investigation, challan was submitted against the accused under the above referred sections.

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

5. At the trial, prosecution examined four (04) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr. P.C, 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 29.01.2016, 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 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. Sardar Ali Shah Rizvi, learned DPG 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 29.01.2016, acquitted the accused mainly for the following reasons:

“From the minute perusal of evidence adduced by PW-Dr. Pervaiz Akhtar Korai, it is clearly sufficient to understand that PW-Dr. Pervaiz Akhtar Korai voluntarily admitted that the patient (complainant) had sustained contusion and bruises and such injuries can be sustained by fallen down on earth. From the evidence of PW- Dr. Pervaiz Akhtiar Korai, it has been revealed that the injuries of the injured were declared as other hurts. Hence, it is very difficult to determine as to whether the injuries sustained by injured were the outcome of the incident? Hence, the vague situation of the present circumstances of the case have inclined me to form my humble opinion that the complainant might have received some injuries but it is not necessary his injuries must be inconformity with the circumstances of the incident. Hence, the medical certificate being issued by Dr. Pervaiz Akhtar Korai is very much doubtful and he has also left countless flaws and lacunas while examining the injured, for which PW- Dr. Pervaiz Akhtar Korai was legally bound and such fact has not been understand by him in his cross examination.

In view of the above, I am of my humble opinion that all accused persons who are admittedly having their land nearby the forest land, have been alleged of illegal occupation and committing robbery from the complainant and on the other hand the prosecution has miserably failed to produce any tangible piece of evidence which could connect the accused persons in the commission of crime, I therefore, under the present circumstances of the case, acquit the accused persons U/s 245(i) Cr.P.C by extending the benefit of doubt to them.

All accused persons are present on bail, their bail bonds stand cancelled and sureties discharged.”

12. In the present case, there was delay in lodging of FIR for which no plausible explanation has been furnished. It has also not come on record as to how complainant / Land Forest Officer knew the names of the accused persons when he went to the Forest land. Prosecution has also failed to establish that accused were raising the cultivation on the Forest land because plea is raised by the respondents that they owned their land adjacent to the Forest land. Investigation Officer has also admitted in the cross-examination that complainant failed to produce before him the survey numbers of the Forest land so also record of demarcation. Therefore, prosecution has failed to establish its case. 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