Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 247 of 2019

Date of hearing : 24.02.2020.

Date of judgment : 24.02.2020.

Mr. Ajeebullah Junejo, Advocate for appellant / complainant.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondents / accused (1) Muhammad Saleh son of Fazal alias Faisal Kareem, (2) Muhammad Qasim son of Faizal alias Fazul Kareem, (3) Muhammad Tahir son of Muhammad Qasim, (4) Fazal-ur-Rehman son of Muhammad Saleh and (5) Abdul Waheed son of Abdul Malik, all by caste Indhar, were tried by learned Judicial Magistrate-II (MTMC), Pano Aqil in Criminal Case No.51 of 2019. After regular trial, respondents were acquitted by the trial Court vide judgment dated 22.11.2019.

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

“Succinctly, the facts of the prosecution case as unfolded in the FIR by complainant are that, his dispute with accused Muhammad Saleh & others was pending over matter of plot. On 07.04.2019 in morning time he was available in his house; his maternal Uncle Abdul Qadeer and cousin Saifullah informed him that his plot is being encroached by accused Muhammad Saleh who is constructing building on it. After that he along with his PWs went to his plot and found that boundary wall was constructed and other bricks were lying there. The accused Muhammad Saleh, Muhammad Qasim, Muhammad Tahir, Fazal-ur-Rehman and Abdul Waheed armed with lathies and hatchets came there ahead and on the instigation of accused Muhammad Saleh caused him kicks and fists. Accused Muhammad Saleh caused him piece of brick which he received on his right foot finger. After that accused Muhammad Qasim while pointing Hatchet to him threatened him that, if he will return back to his plot, he will be killed by them. Injured/complainant after taking MLC, on 12.04.2019 lodged instant FIR against accused, hence this case.”

FIR was recorded vide Crime No.23/2019 registered at P.S Cantonment, District Sukkur for offences under Sections 147, 148, 114, 337-F(v), 337-L(2), 447, 504, 506/2, PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under Sections 147, 148, 114, 337-F(v), 506/2, 337‑L(2), 504, 447, PPC.

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 seven (07) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr.P.C at Ex.11 to 15, 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 the learned counsel for the parties and examination of the evidence available on record, vide judgment dated 22.11.2019, acquitted the accused. Hence, this Acquittal Appeal is filed.

8. Complainant being dissatisfied with the acquittal of the respondents / accused has filed this Appeal.

9. Learned advocate for the appellant has mainly contended that it was injury case and ocular evidence is corroborated by the medical evidence. It is further argued that delay in lodging of the FIR has also been explained. Lastly, it is submitted that judgment of the trial Court is perverse and acquittal may be converted to the conviction.

10. Syed Sardar Ali Shah Rizvi, learned DPG submitted that trial Court has rightly recorded the acquittal. He submitted that delay in lodging of the FIR has not been explained by the prosecution and there are material contradictions in the case of prosecution. Lastly, it is submitted that approach of this Court in the Acquittal Appeal is always different from the Appeal against conviction. Learned DPG prayed for dismissal of the Acquittal Appeal.

11. After hearing the learned counsel for the parties, I have perused the impugned judgment. It appears that trial Court, for the sound and valid reasons, has recorded the acquittal. Reasons for recording acquittal in the judgment of the trial Court are reproduced as under:

“12. There is no cavil with the ages old principle of criminal justice that burden to both the above mentioned points beyond any reasonable doubt was on the prosecution. I have heard the submission of the learned counsel for the accused, learned ADPP appearing on behalf of the State and gone through the evidence brought on the record by the prosecution with due, deep and with valuable assistance rendered by them. From perusal of evidence brought on the record by the prosecution it shows that prosecution evidence is pregnant with major and material contradictions. In order to prove the occurrence, prosecution has examined complainant, two ocular witnesses, mashir of injuries, mahsir of place of incident, MLO and I.O. The complainant has deposed that on 07.04.2019 he came to know that accused have encroached to his plot and after hearing such facts he along with his PWs went to his plot where accused caused him injuries. The perusal of record shows that no description of alleged encroached plot is either disclosed by complainant or his PWs in their evidence. Even FIR is silent about of description, measurement and location of plot. No title document of said plot is produced by prosecution to prove the facts that they have any plot which has allegedly been encroached by accused. No evidence, material is brought on record which shows that the accused have encroached the plot of accused except mere allegations. No any revenue record was brought on record which shows that accused have encroached the plot of complainant. Nothing is produced to show that accused have trespassed into the plot of complainant or have remained there unlawfully except mere allegations. Further the complainant had alleged that accused have caused him kicks and fists. In this regard the perusal of memo of injuries it shows that injured has received only two injuries one on his right shoulder and other on his right foot finger but medical certificate discloses that injured has received three injuries. Injury No.1 and 02 of the injured are declared as other section hurt-2 which are non-cog injuries. Medical officer stated that injury No.3 of the injured was x-rayed but he failed to produce such X-ray report before this court. Allegedly accused have caused kicks and fists to complainant but medical evidence is not disclosing about the marks of violence over the body of complainant on the hand of accused to establish the fact of kicks and fists. Admittedly dispute between the parties is over landed property different criminal cases are pending between them, therefore under such circumstances false implication cannot be ruled out.

13. Bare perusal of the evidence shows the picture of an improbable incident. The record shows that alleged incident took place on 07.04.2019 and FIR of the incident was lodged on 12.04.2019, hence I am unable to understand that why complainant has not put the law into motion immediately after incident, though on very next day MLC was issued to him. No any plausible explanation has been given regarding delay in lodging FIR. Admittedly, delay in lodgment of FIR is conspicuous there being no plausible explanation, therefore, accused cannot be left at the mercy of complainant to rope innocent souls so as to entangle/victimize them to on animosity and or to settle the scores, using the FIR as a tool for that purpose, and that, too without any explanation in this regard reliance is placed on Qadir Bux & 2 others vs. The state (2012 MLD 365), wherein it has been held; “Unexplained delay of two and half hours in lodging of FIR, may lead to interference of cooking of concocted story by deliberations”. From perusal of FIR it is alleged that at the time of alleged incident accused have issued threats to complainant but the complainant in his deposition has not disclosed the wordings of threats. However, the main ingredients of section 506/2 are there must be proof of motive and intent of commission of an offence, the intention should be to cause alarm to the person threatened or to cause a person to do something which he was not legally bound to do or omit to do something which he was legally entitled to. It has been held in case law reported as Ghulam Rasool V/s Saleem Shad 1986 P.Cr.L J 823 (2) that as for section 506/2 PPC is concerned even such simple mouth words do not amount to criminal threat. It is very much necessary that the threat should be to cause alarm or 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 ingredients have not been proved as complainant and PWs are proceeding with the case attending the court earlessly.

14. Moreover the complainant and in ured have deposed against the accused but their statement cannot be taken as gospel truth in the circumstances when they are in criminal terms with the accused over the property issues. All the ocular PWs are closely related to the complainant, independent corroboration to ocular account is lacking in this case. Evidence of eye witnesses carried major contradiction which made the case of prosecution doubtful. Radiologist report or opinion of expert has not been produced by prosecution. Further the stamp of injury on the person witnesses would not make testimony of such witnesses is gospel truth, the testimony of injured would not be considered in isolation with other material evidences on record but such testimony required independent corroboration from the circumstantial evidence especially when enmity exist between in the parties. Further relied upon case law SBLR 2016 Sindh-447 Hyderabad, it was observed by the Honorable High Court that the ocular account can be used for recording acquittal or conviction against the accused persons who were charged for the commission of same offence, but there should be the chain among the ocular evidence. The Circumstantial evidence is not in line with ocular testimony. Evidence of eye witnesses carried major contradiction which made the case of prosecution doubtful. Further it is well settle principle of law that if a single circumstance creates reasonable doubt in the prudent mind about the guilt of the accused, then he will be entitled as a matter of grace and concession but as the matter of right. In view of above discussion I have further relied on the case law given below: - It is held in the case of Tarique Pervez vs the state reported in 1995 SCMR 1345 by the Honorable Supreme Court of Pakistan that for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt--if a single circumstance creates a reasonable doubt in the prudent mind about the guilt of accused, then he will be entitled to such benefit not as matter of grace and concession but as matter of right. Therefore in this matter the prosecution has failed to prove the charge against the accused and for the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity creating reasonable doubt in mind of a prudent mind regarding the truth of the charge is sufficient to give the benefit of doubt to the accused. Further, no satisfactory evidence documentary or oral available on record to prove the charge against the present accused. The prosecution is duty bound to prove the charge against the accused person beyond any shadow of doubt. It is also settled principle of law that, it is better for the Court to err in acquittal then in conviction as 100 guilty men may be acquitted but one innocent person must not be convicted. Hence this point is not proved beyond shadow of doubt.”

12. It is settled position of law that after acquittal, accused earns double presumption of innocence. Principles of appreciation of evidence while hearing Appeal against acquittal are always different from the principles of appreciation of evidence in the case of Appeal against conviction. A number of infirmities / contradictions in the prosecution case have been highlighted in the impugned judgment of the trial Court. Admittedly, there was delay in lodging of the FIR, for which no plausible explanation has been furnished. There was dispute between the parties over the plot. Some independent evidence was required to corroborate ocular evidence, but it is lacking in this case. Medical evidence was also contradictory to the ocular evidence. In the case of Tarique Parvez v. The State (1995 SCMR 1345), it is held that for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If a single circumstance creates a reasonable doubt in the 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. Trial Court has rightly appreciated prosecution evidence and held that prosecution could not prove its case. Moreover, Hon’ble Supreme Court in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315) 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. For the above stated reasons, I have no hesitation to hold that unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Consequently, Criminal Acquittal Appeal fails and the same is dismissed.

J U D G E

Abdul Basit