Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 216 of 2019

Date of hearing : 13.01.2020.

Date of judgment : 13.01.2020.

Mr. Abdul Wahab Shaikh, Advocate for appellant / complainant.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondents / accused (1) Qurban son of Wali Muhammad, (2) Shahid son of Qurban Ali, (3) Rabnawaz son of Qurban Ali, (4) Barkat son of Atta Muhammad and (5) Imdad son of Atta Muhammad, all by caste Machi, were tried by learned Civil Judge & Judicial Magistrate-III, Kandiaro in Criminal Case No.90/2019. After regular trial, vide judgment dated 11.11.2019, respondents / accused were acquitted of the charge. Appellant / complainant, being aggrieved, has filed this Acquittal Appeal.

2. Mr. Zulfiqar Ali Jatoi, Additional P.G, present in the Court in some other matters, waived the notice.

3. Learned advocate for the appellant / complainant mainly argued that trial Court has recorded acquittal in the favour of the respondents / accused while considering minor contradictions. He has submitted that trial Court failed to appreciate the evidence according to the settled principle of law. He has further submitted that appellant was the owner of the land, which was the subject matter in the case, but trial Court ignored the material evidence. He prayed for converting the acquittal to the conviction.

4. Mr. Jatoi, learned Additional P.G argued that judgment of the trial Court is well-reasoned; that there was inordinate delay in lodging of the FIR, for which no plausible explanation has been furnished. Learned Additional P.G has further argued that identification of the accused was on torch-light and said torch was not produced before the Investigation Officer. He has also argued that ocular evidence was contradictory to the medical evidence. He prayed for dismissal of the Acquittal Appeal.

5. I have carefully heard the learned counsel for the parties and perused the impugned judgment. It appears that trial Court, in the judgment dated 11.11.2019, has recorded acquittal in the favour of the respondents / accused mainly for the following reasons:

“ Furthermore, as per prosecution case, present accused persons along with three unknown accused persons trespassed inside the house of complainant on 27.03.2019, tortured him with kicks and blows, so also extended threats of killing to him in order to deter from asking to vacate the plot. The complainant of the case reiterated the same version in his evidence at Ex.3. Such facts of the prosecution case do not sound appealable to a prudent mind that armed accused persons tortured complainant with kicks and blows but complainant did not sustain single injury due to torture of accused persons. 

While appreciating the prosecution evidences in respect of Point No.1 & 2, record also shows that there are contradictions in statements of complainant Gul Bahar at Ex.3 and eye witness Mukhtiar at Ex.4 regarding the alleged torture of complainant at the hands of accused persons, which also renders the case of prosecution doubtful. Complainant claims in his evidence that he was tortured by accused persons by kicks and blows but PW Mukhtiar claiming to be the eye witness of alleged incident stated in his respective cross examination that complainant was tortured by accused persons with sticks and blows. Further, it also reveals that there are considerable contradictions in evidences of prosecution witnesses regarding site inspection conducted by I.O. Complainant of the case deposed in his evidence at Ex.3 that three to four police officials arrived at the place of incident at the time of site inspection. On the contrary, PW Mukhtiar claiming to be present at the time of site inspection stated in cross examination that only I.O arrived to inspect site.

In order to ascertain the aspect of criminal intimidation as alleged by complainant, it is necessary to pay particular attention to section 506(ii) of Pakistan Penal Code in order to satisfy as to what the prosecution was required to prove. The definition of criminal intimidation as provided under section 503 PPC is reproduced as under:

“Section 503 PPC: Whoever threatens another with an injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding execution of such threat, commits criminal intimidation.”

To prove charge under section 506(ii) P.P.C. the evidence must come up to the standard set forth above. Prosecution relied upon the testimony of complainant Gulbahar and PW Mukhtiar in order to prove the factum of criminal intimidation allegedly committed by present accused persons along with three unknown accused persons. The entire evidence of complainant Gul Bahar claiming to be victim of alleged incident of criminal intimidation at the hands of present accused is inconclusive to ascertain that his act in asking accused Qurban Machi to vacate the plot was legal for which present accused persons allegedly restrained him and extended threats of killing on point of weapons. The restrain from doing an act, legally bound to do and causing to do an act which is not legally bound to do, in the commission of criminal intimidation as defined in Section 503 PPC is basic ingredient to constitute an offence punishable under section 506(ii) of Pakistan Penal Code. Such essential ingredient is missing from the facts of present case as neither any document has been produced by complainant to claim ownership of subject land, nor any Naik Mard or independent witness has been produced as witness of the case to support the version of complainant that he is titled owner of the subject land.

Keeping into consideration the facts and circumstances of present case, I seek guidance from case law reported as GHULAM RASUL V. CH. SALEEM SHAD (1986 P.Cr.L.J. 823(2) wherein the Honorable Lahore High Court held as follows:

“As for section 506, P.P.C, a threat simpliciter does not amount to criminal intimidation as defined in section 503, P.P.C. It is very much necessary that the threats should be to cause alarm or to cause the complainant to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. The case of the petitioner/complainant is that of a threat simpliciter and the other ingredients have neither been alleged nor proved....”

Moreover, record also reveals that none from independent residents of locality have been produced by complainant in support of his allegations except his close relatives and I.O of the case has also failed to associate any private witnesses at the time of inspecting site to validate the allegations of complainant leveled against present accused or even at the time of arrest of accused Rabnawaz.

The above discussed infirmities and contradictions regarding the occurrence of alleged incident create serious doubts in the prosecution case. In such circumstances, I seek guidance from case law reported as NLR 2002 P.Cr.L.J 222 (Muhammad Rashid Vs. The State), wherein it has been held by the Honorable High Court of Sindh that:

“Benefit of doubt would go to accused as a matter of right and not as a matter of grace, even when single circumstance is found creating doubt in a prudent mind, accused in such case would be entitled to acquittal.”

In view of aforesaid discussion, the evidence in respect of Point No. 1 & Point No. 2 is not sufficient to prove the case against present accused persons and renders the same as doubtful. Therefore, Point No.1 & Point No.2 are answered as doubtful.”

6. It is the matter of the record that alleged incident took place on 27.03.2019 at 11:00 p.m., but it was reported to the police on 16.04.2019 at 1600 hours. Delay in lodging of the FIR has not been fully explained. Mere it is stated that soon after the incident, complainant approached the nek mard, who kept him on false hopes, but said nek mard has not been examined by the prosecution at trial. According to the case of prosecution, complainant was beaten / given fists and kicks blows by the accused persons, but there is no corroboration to that effect. It was night time incident. Identification of accused was on torch light but said torch was not produced before trial Court. So far the ingredients of the sections alleged in the FIR are concerned, there was no evidence to satisfy such ingredients. Mere word of the complainant is not sufficient, particularly in the circumstances / background when there is dispute over the property. Judgment of the trial Court is neither perverse nor ridiculous. Law is well-settled that principles for consideration of the Appeal against conviction and Appeal against acquittal are entirely different. Moreover, after acquittal, respondents / accused have got presumption of double innocence. Hon’ble Supreme Court 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.”

7. For the above stated reasons, while relying upon the above judgment of the Hon’ble Supreme Court, I have no hesitation to hold that this Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit