Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 31 of 2017

 

 

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

 

 

Date of hearing        :           15.01.2020.

 

 

Mr. Shabbir Ali Bozdar, Advocate for appellant / complainant.

Mr. Amanullah G. Malik, Advocate for respondent No.1 / accused.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Arbab Ali son of Rasool Bakhsh Lakho has impugned the judgment dated 02.02.2017 passed by learned Additional Sessions Judge, Kandiaro in Sessions Case No. 546 of 2011 for offence under Section 302, PPC. On the conclusion of the trial, vide judgment dated 02.02.2017, respondent No.1 / accused Amanat Ali has been acquitted.

2.         Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

The brief facts of the prosecution case are that the complainant Arbab Ali Lakho lodged the FIR alleging therein that on 05.9.2011 at 1300 hours, the above named accused at his house situated in village Haji Muhammad Siddique Lakho, committed murder of his wife Mst: Razul (complainant’s daughter) inflicting hatchet blows in presence of his brother Shah Nawaz, nephew Muhammad Soomar and wife Mst: Haseena being annoyed with her failure to give money for gambling.

            FIR was recorded on 05.09.2011 at P.S Kandiaro, District Naushahro Feroze vide Crime No.146/2011 for offence under Section 302, PPC.

3.         After usual investigation, challan was submitted against respondent No.1 / accused under Section 302, PPC.

4.         Trial Court framed the charge against the accused. Accused pleaded not guilty and claimed to be tried.

5.         At the trial, prosecution examined eight (08) prosecution witnesses and prosecution side was closed.

6.         Statement of accused was recorded under Section 342, Cr.P.C at Ex.14, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in his 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 02.02.2017, acquitted respondent No.1 / accused for the following reasons:

          It is a case of prosecution that the accused killed his wife on the basis of her failure to give money for gambling , however, the prosecution has not brought any documentary evidence to show that either he was a gambler or involved in such type of cases prior to the happening of the incident. The prosecution has also not produced any evidence that the deceased was in a position to give money to the accused for the same purpose on the basis of her earning by either sewing the clothes or doing household work of other persons but there are mere words of complainant party which are not sufficient to believe the same when the prosecution has failed to produce the evidence of any independent person to prove the alleged nature of the accused. The accused is not alleged that he was not in a position to do so in view of either having no such sources of income or he did not use to earn to maintain his family. It is also not explained as to how the deceased was meeting her expenses I am therefore, of the view that the prosecution has miserable failed to prove the motive of accused.

            The complainant and PWs do not seem to be real/actual witnesses of the incident in the light of non-receiving any sort of injury from the hands of accused who could though also easily cause any injury to any of them in case of their availability on the spot. The complainant & P.Ws seem to have taken the stand of having fear in order to justify their presence, otherwise their plea does not seem to be genuine for the reason that the accused being armed with hatchet not in a position to cause any considerable harm when they being four persons could easily grapple him in order to save the deceased from being killed.

            The alleged incident took place in broad day light i.e 1-00 pm in a village consisting upon number of houses and despite of the fact the complainant has neither cited the name of any independent person in support of his version nor IO bothered to record the statement of any such person during the course of investigation. The P.Ws being close relatives of the complainant seem to be highly interested persons, as such it shall not be safe to rely upon their testimonies when there is highly possibility of their being deposed falsely.

            The incident is shown to have been taken place inside the house of accused by the complainant in the FIR as well as in his deposition while the P.Ws have also described the same at the same place, however, the same is shown to have been taken place outside the house though the complainant party does not claim to have come out from the house at the time of happening of the incident while the place of vardat is also shown in open plot in the mashirnama of place of vardat as well as in the sketch prepared by the Tapedar which fact also belies the version of complainant party taken in respect of happening of the incident inside the house of deceased. The complainant’s counsel argued that the said plot is also part and parcel of the house but there seems no substance in his plea in the light of non-coming such evidence on the record. The IO has also not found any boundary wall as per mashirnama of place of vardat to believe the said plea.

            The accused was arrested on 06.9.2011 while recovery of hatchet was allegedly made on 11.9.2011 meaning thereby that same was made after five days of his arrest, as such there is highly possibility of foisting the hatchet upon the accused particularly when the alleged recovery was made in presence of mashirs who are close relatives of complainant, out of them examined mashir has categorically stated to have signed all the mashirnamas at P.S meaning thereby that the said mashirnamas were not prepared at the places where the same were claimed to have been prepared, hence, the said recovery has also become doubtful.

            The examined mashir has also damaged the prosecution case in the light of his stating to have signed all the mashirnamas at police station, as such it would lay a presumption that police completed all the investigation at P.S without leaving it while managing all the things.

            Reverting to the evidence produced by the prosecution I am of the view that the same also inspire no confidence in the light of making conflicting statements by the complainant and his witnesses. According to the complainant they left the village at about 12-30 pm by foot in order to go to the house of accused while P.W Shah Nawaz has disclosed to have left the house at 11-00 am meaning thereby that he has falsified the version of complainant. P.W Muhammad Soomar has deposed to have reached at the house of accused at 12-30 pm which is time of leaving the complainant party in order to proceed to the house of accused. The complainant has not described that the accused was residing with his wife alone though he was also required to specify the same, however, P.W Shah Nawaz has deposed that ladies of the house were also available with deceased and accused while P.W Muhamınad Soomar has falsified the said version stating that there was no any other person in the house of accused except accused and his wife. The P.W Soomar also claims to have reached there at about 12-30 pm while claiming about the incident within few minutes after their reaching though the incident has taken place after half hour of reaching of complainant party. Complainant, P.Ws Shah Nawaz & Soomar have stated in clear terms that the deceased received the hatchet blows on back side of her neck & hand, as such two injuries were required to be found by the WMO who however found four injuries on the person of deceased which is totally contradictory with the ocular evidence. The complainant has frankly admitted about the filing of different applications including U/S 22-A & 22-B Cr.P.C to register FIR of the same incident by the accused’s brother Juman. This version is, however, falsified by the P.W Shah Nawaz by denying the said fact while PW Soomar has shown to have heard about filing the same. It is inferred from this material discrepancies that the complainant & witnesses have proved themselves to be un-reliable and untrustworthy witnesses.

            It is settled principle of law that the prosecution is supposed to bring strong, trustworthy, beyond reasonable doubt and credible evidence against the accused in order to obtain conviction on record while the prosecution has miserably failed to do so in the case-in-hand.

            The aforesaid factors make the prosecution’s case highly doubtful, as such the plea taken by the accused seems to be true. It is also settled principle of law that there should not be number of circumstances for extending benefit of doubt to accused who is entitled to be given the same in case of arising slightest doubt in respect of happening of the incident in a prudent mind.

            In the light of foregoing discussion, I am of the humble view that the prosecution has failed to establish its case against the present accused beyond the shadow of doubt, hence, plea of accused regarding his innocence seem to be true this point accordingly is answered as doubtful.

8.         Appellant / complainant, being dissatisfied with the acquittal of the accused, has filed this Acquittal Appeal.

9.         Mr. Shabbir Ali Bozdar, learned advocate for the appellant / complainant argued that impugned judgment of the trial Court is based on misreading and non-reading of the evidence. It is further argued that it was day time incident and the same was witnessed by three eyewitnesses. It is also argued that ocular evidence was corroborated by the medical evidence and recovery of the hatchet was on pointation of the respondent. Lastly, argued that trial Court has failed to appreciate the evidence in its true prospective and the judgment of the trial Court is perverse and the same is liable to be converted to the conviction. In support of his contention, he has placed reliance upon the cases reported as IQBAL alias BHALA and 2 others v. The State (1994 SCMR 1) and ZAHID ALI v. Sheikh ABDUL HAMEED and another (1996 P Cr. L J 586).

10.       Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General assisted by Mr. Amanullah G. Malik, learned advocate for respondent No.1 / accused argued that judgment of the trial Court is structured on sound reasons and acquittal order is neither perverse not arbitrary. He has supported the impugned judgment of the trial Court and prayed for dismissal of the Acquittal Appeal.

11.       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.       In the present case, ocular evidence was contradictory to the medical evidence with regard to the number of injuries sustained by the deceased. Eyewitnesses have deposed that present incident took place inside the house of the respondent / accused, but mashirnama of the place of wardat indicates that incident had occurred outside the house. Trial Court rightly held that eyewitnesses were chance witnesses as they could not explain their presence at the time of occurrence. Even otherwise, we have judged the evidence of the eyewitnesses, on the touchstone of Article 129 of the Qanun-e-Shahadat Order, 1984. It appears that conduct of PWs was unnatural and their evidence was rightly disbelieved by trial Court. There are a number of infirmities in the case of prosecution, as such prosecution had failed to prove its case.

14.       For the above stated reasons, while relying upon the above cited authorities of the Hon’ble Supreme Court, we have no hesitation to hold that this Criminal Acquittal Appeal is without merit and the same is dismissed.

 

 

J U D G E

 

J U D G E

Abdul Basit