Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 145 of 2019

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 26.02.2020.

Date of judgment : 26.02.2020.

Mr. Alam Sher Bozdar, Advocate for appellant / complainant.

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondents Kazim Ali and Sadam Hussain were tried by learned Additional Sessions Judge (Hudood), Sukkur in Sessions Case No.539/2016 for offences under Sections 302, 301, 34, PPC. After regular trial, vide judgment dated 30.07.2019, respondents were acquitted by the trial Court for the following reasons:

“ The complainant Mst.Abida Parveen (mother of the said deceased) has deposed in her cross examination that “my son had his personal mobile at that time. It is correct to suggest that, I had not disclosed my cell number from which I called my son at that time. It is correct to suggest that “I had not disclosed the cell number or company of mobile phone of my son Muzzamil. It is correct to suggest that, I have not disclosed in my chief examination that, I called accused Saddam to enquire about my son. It is correct to suggest that, I also did not disclose the cell number of accused Kazim on which I called him. It is correct to suggest that, at that time I had not filed any complaint to any P.S or any other forum. It is correct to suggest that I have also not got such information published in any Newspaper. It is correct to suggest that neither me nor my husband or my father, did not contact with the elders of accused Sadam in respect of my son throughout the period on 27.06.2016. I have come to know about the death of my son through T.V news in evening time. I do not remember the name or designation of the person who showed us the clothes of my deceased son in Edhi Centre. I do not remember the surrounding boundaries of the place of incident from where the dead body of my son was recovered. I did not enquire about the name of the owner of the said land. It is correct to suggest that they (accused) did not murder to my son. It is correct to suggest that, I did not saw them with my own eyes. It is correct to suggest that clothes of my son which were shown to me but Edhi workers were not sustained with blood. It is correct to suggest that I had filed an application in the court of family Judge Sukkur for examination of dead body of my son. It is correct to suggest that it is not mentioned in my said application that, my son was murdered by firing. I had come to know through persons that accused murdered to my son by firing. It is correct to suggest that, in FIR, as well as in my examination chief I have not disclosed that the accused used fire arm weapon, in murder of my son. It is incorrect to suggest that I demanded heavy money from the elders of accused to blackmail them and on their refusal, I nominated the accused in this false FIR.

P.W Abdul Ajeeb (father of the deceased) had deposed in his cross examination that “it is correct to suggest that the accused had not murdered my son Muzamil in my presence. It is incorrect to suggest that my son had left the house himself by taking golden ornaments and cash of Rs.55000/- from my house. It is incorrect to suggest that my son had become annoyed with me and also pointed his pistol upon me on 24.6.2016. I do not remember that on what T.V channel the news about the murder of my son was flashed. It is correct to suggest that in my 161 Cr.P.C statement it is not mentioned that I along with my wife and others went to Well and recovered dead body of my son from there. I do not remember that who had written FIR. I do not remember that who had written my 161 Cr.P.C statement. It is correct to suggest that dead body of my son was not recovered in my presence. It is correct to suggest that prior to lodgment of this FIR I also had not filed any complaint against the police or accused in any court of law.

The P.W ASI Ghulam Mehdi has deposed in his chief examination that on 27.06.2016 at about 10-00 am he received spy information that, a dead body is lying in a well near Kando Wahan Taluka and District Sukkur on such information he reached there at about 10-45 p.m and took out the dead body from the well and then examined the dead body, but did not find any injury or fire shot on the dead body and at that time he captured a photo graph of dead body with her cell phone which were shown by him to Mst.Abida and others, who identified to be the dead body of their deceased son but in his cross examination he himself has contradicted to his version that “it is correct to suggest that, in the mashirnama of recovery of dead body it is not mentioned that I have captured the photo graphs of dead body of deceased. It is correct to suggest that while going to place of incident, I had seen several persons on the way but I did not associated them as mashirs.

The mashir of recovery of dead body namely PC Moharram Ali Khoso has deposed in his cross examination that it is correct to suggest that dead body was in full swelling condition hence I did not notice any marks of injury on it. I do not remember the color of clothes which were weared by the deceased. I do not remember that whether the clothes of deceased were blood stained or not.

In order to resolve the said controversy recovery of blood stained clothes of deceased the mashir Fareed was re‑called and re-examined who has admitted that the clothes weared by the deceased have not been produced in the court as case property. The record keeper of the Honorable sessions Court namely Muhammad Ibraheem Mahar was also examined on application U/S 540 Cr.P.C, who has also deposed that no blood stained clothes which were received by him, as case property of this case from I.O etc.

From the above mentioned contradicted version of the complainant and P.Ws, it appears that they have tried to divert their version to say that their deceased son was murdered by the accused persons with fire shot injuries and in the same context, recovery of pistol has also been recovered from the accused Kazim but he has been acquitted from the said case of arms ordinance by disbelieving the prosecution evidence. Regarding the recovery of alleged blood stained clothes of deceased it has not been proved from any corner that the said deceased was having any fire arm injury upon his person or his alleged recovered clothes were blood stained, even the said clothes were not produced before this court by the I.O or by the record keeper of the Honorable Sessions Court as the case property for believing the said version.

From all the above mentioned facts and circumstances and in absence of ocular evidence it appears that if it was the dead body of deceased son of the complainant, the said was murdered by un-known persons, there is no single iota of evidence to connect the present accused with the alleged incident of the murder of the said deceased except the circumstantial evidence that the said deceased has went with the present accused persons but the said version is also contradictory and un believable having no independent support, therefore I am of the humble conclusion that the prosecution has failed to connect the present accused from any corner beyond the shadow of reasonable doubt, with the alleged incident. There is universal law that even single and slightest doubt if arises in a prudent mind regarding the guilt of accused, must be resolved in favour of the accused. There is also famous judgment of Muhammad Arif Vs. The State reported in 2006 P.Cr.L.J 1827 it is held by their Lordships Mr. Justice Mian Muhammad Najam-uz-Zaman and Mr. Justice Aijaz Ahmed Chaudhry at relevant page 1829 as under:

“Rule of benefit of doubt is based on the maxim that it is better that ten guilty persons be acquitted rather that one innocent person be convicted. The said, rule occupies pivotal place in Islamic Law and is enforced rigorously in view of the saying of Holy Prophet (p.b.u.h)” Mistake of Qazi (Judge) in releasing a criminal better than his mistake in punishing innocent.”

Therefore I hold that, the prosecution has failed to prove the case against the present accused, beyond the shadow of reasonable doubt. The case of prosecution is not free from reasonable doubt and it would be un-just and improper to record the conviction against the accused, on such doubtful evidence, having no other independent and strong corroborative support, therefore point under discussion is answered as doubtful.”

2. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 30.07.2019, acquitted the accused as stated above.

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

4. Facts of this case as well as evidence find an elaborate mention in the judgment of the trial Court, hence, no need to repeat the same.

5. Learned advocate for the appellant / complainant mainly contended that respondents had committed murder of the son of the complainant and there was evidence of last seen against them. It is argued that trial Court had failed to appreciate the evidence in its true prospective and this is the case of mis-reading and non-reading of evidence. Lastly, it is submitted that complainant had no motive to falsely implicate the respondents in this case.

6. Mr. Abdul Rehman Kolachi, learned DPG argued that trial Court has discussed each and every piece of evidence and discarded the same while assigning the sound reasons. It is further submitted hat it was the case of circumstantial evidence and prosecution had failed to prove its case at the trial against the respondents. Learned DPG supported the judgment of the trial Court and prayed for dismissal of the Acquittal Appeal.

7. After hearing the learned counsel for the parties, we have carefully perused the evidence as well as the impugned judgment.

8. According to the case of prosecution, the incident had occurred on 24.06.2016 and a news with regard to taking out the dead body from a well was flashed on 27.06.2016, but the FIR was lodged on 11.07.2016 with the delay of 17 days, for which no plausible explanation has been furnished. Learned trial Court in the judgment has mentioned that prosecution case was based upon the circumstantial evidence and there is no single iota of evidence to connect the respondents with the alleged incident. Trial Court has highlighted the contradictions in the evidence of the prosecution witnesses so far the last seen evidence is concerned. Moreover, this is Appeal against acquittal. The considerations of the appreciation of the evidence in the case of Appeal against acquittal are entirely different from considerations in the case of Appeal against conviction. After acquittal, accused earns the presumption of double innocence, and this Court is always slow in interfering the acquittal, as scope of Acquittal Appeal is always limited and narrow as held by Hon’ble Supreme Court in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315). Relevant paragraph is reproduced 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.”

9. Reasons assigned by the trial Court are based upon the evidence which was brought on record by the prosecution. We have no reason to interfere the acquittal judgment passed by the trial Court. The Appeal is without merit and the same is dismissed.

J U D G E

J U D G E

Abdul Basit