Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 164 of 2019

Date of hearing : 20.01.2020.

Date of judgment : 20.01.2020.

Mr. Ubaidullah Malano, 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 Sajjan son of Allah Bux Tagar has impugned the judgment dated 19.09.2019. Respondents / accused (1) Muhammad Yousif son of Muhammad Bux, (2) Mushtaq Ali son of Ramzan, (3) Sikander Ali son of Ramzan, (4) Muhram Ali son of Ramzan and (5) Koondar son of Moula Bux, all by caste Tagar, were tried by learned Civil Judge & Judicial Magistrate-III, Naushahro Feroze in Criminal Case No.50 of 2019 for offences under Sections 337-A(i), 337-A(ii), 337-L(2), 114, 147, 148, 149, 504, 114, PPC. On the conclusion of the trial, vide judgment dated 19.09.2019, 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:

“Facts leading to the prosecution story as is envisaged in the FIR are that on 06-07-2019 at about 2130 hours the complainant namely Sajjan Khan lodged FIR, at Police Station Mithiani, alleging therein that on 06-07-2019 at about 1730 hours, the complainant being a police constable was going on his duty when he reached at his Tube Well to look after his land, where his brother Luqman and nephew Muhammad Eissa were working over there in the land. It was about 1730 hours accused Mushtaq Ahmed, Sikander having hatchets, Muharram, Yousif, Koondher and two unidentified persons duly armed with lathies came over there. As soon as they reached over there accused Mushtaq Ahmed abused the complainant and asked him that his some money/amount is outstanding due to his brother which you did not pay yet to him therefore today they will not spare him saying so accused Mushtaq Ahmed instigated other accused persons do not leave him and murder him. Accused Mushtaq Ahmed gave hatchet blow to complainant on his head, while other accused persons gave him hatchet and lathi blows to him. The brother of complainant Luqman and nephew came running, gave the names of Al-Mighty Allah to accused persons and rescued the complainant. The accused persons while abusing went away towards their houses. The complainant in his FIR has further stated that he was brought at Police Station, after getting medical letter went to Hospital and after receiving medical treatment the complainant returned at Police Station and lodged his FIR, as stated above.”

FIR was recorded vide Crime No.42/2019 registered at P.S Mithiani, District Naushahro Feroze for offences under Sections 337-A(i), 337-F(i), 337-L(2), 147, 148, 149, 504, 114, PPC.

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 at Ex.08 to 12, 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 19.09.2019, 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 contended 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 Prosecutor General 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 19.09.2019, acquitted the accused mainly for the following reasons:

“11. Furthermore, Investigating officer admitted that he does not have medical certificate at the time of registration of FIR. It is also admitted fact that the mashirnama of injuries was prepared at the place of incident on the next date of registration of FIR at about 1230 hours with the delay of about fifteen hours. This all creates contradiction in the registration of the FIR how the author of FIR inserted the injuries sections when he did not have medical certificate. It is admitted fact that PW.4 Medical Officer has inserted sections in Provisional Medical Certificate issued by him despite of restriction of Honourable Supreme Court. Moreover, PW.4 Medical Officer in his cross examination has admitted that neither any bone was found exposed nor any fracture was seen to the complainant while section 337‑A(ii) defines that there should be expose of bone and same is reproduced here for the sake of arguments “by exposing any bone of the victim without causing fracture”, therefore, this section is not attracted with the present case of the prosecution in hand. More-over the evidence adduced by the prosecution does not reflect that on which vehicle injured was taken for hospital. It is pertinent to mention here that perusal of evidence of PW.2, Muhammad Eissa in his examination in chief has not deposed even a single word in respect of injuries sustained to complainant Sajjan Khan in his presence at the hands of the accused persons. Apart from that Investigating Officer did not produce any entry about departure or arrival of preparation of memo of place of incident or injuries. Furthermore, no any recovery of weapon used in commission of the offence has been effected by police. Moreover, PW.4- Medical Officer in his evidence has deposed that the clothes of injured Sajjan Khan were bleeding from back side elbow, however the evidence of complainant/ injured Sajjan Khan and PW-2 (eye witness) is silent as such they have not deposed that clothes of injured/complainant were bleeding, moreover same clothes were not made part of investigation as case property. In provisional medical certificate concerned Medical Officer has mentioned six injuries in number but in final medical certificate three injuries are mentioned as such three injuries have been deleted in result of X-Ray report, further more injury No.2 i.e shajja-e-mudihah has not been proved as PW.4- Medical Officer in his examination in chief has deposed that there is no any bone was exposed. Therefore, there is many contradictions in the evidence of PW.1 complainant/injured Sajjan Khan and P.W-2 eye witness Muhammad Eissa and Court can not rely on such piece of evidence to hold conviction. It is settled law that every benefit of a single doubt will go in favour of accused.

12. It is settled law that prosecution has to prove it’s own case through available evidence and he can not rely upon the plea of accused, whatever the accused took in statement recorded under section 342 Cr.P.C, the Honourable High Court helds that in case of 2019 PCrLJ 353 Lahore “Prosecution has to prove its own case beyond shadow of doubt and when prosecution has otherwise failed to prove its case then accused can not be convicted on basis of any plea advanced by accused in his statement under section 342 Cr.P.C. Accused deserved acquittal in circumstances”. Azhar Iqbal VS The State 2013 SCMR 383.

13. All these infirmities on the Prosecution case render the whole story doubtful and thus it cannot be relied upon to convict the accused. It is well established that for the purpose of benefit of doubt to an accused more than one infirmity is not required. Single infirmity creating reasonable doubt in the mind of a prudent person regarding the truth of the charge, makes the whole case doubtful. Reliance is placed upon 2019 MLD 685 Sindh Muhammad Imran vs The State “If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right” Therefore, the point no:1 is answered as not proved.”

12. In the present case, complainant Sajjan Khan deposed before the trial Court that accused Mushtaq Ahmed caused him hatchet blows at his right eye, head and upper right ear so also at right leg. PW Muhammad Eissa, the eyewitness of the incident, no where has deposed that accused Mushtaq caused injuries to complainant. According to the medical certificate, all the injuries sustained by complainant were caused by hard and blunt substance. The number of injuries mentioned in the Provisional Medical Certificate was six, but in the Final Medical Certificate, it was reduced to 04. Ocular evidence was contradictory to medical evidence. There was also delay of more than 14 hours in lodging of the FIR, for which no plausible explanation has been furnished. Apart from that, after acquittal, respondents / accused have got double presumption of innocence. Scope of Acquittal Appeal is always narrow and limited. 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 stated reasons, while relying upon the above cited authority of the Hon’ble Supreme Court, I have no hesitation to hold that this Criminal Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit