IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No. D-46 of 2019
Present :
Mr. Justice Naimatullah Phulpoto,
Mr. Justice Zulfiqar Ali Sangi,
Appellant: Dhani Bux Jagirani,
Through Mr. Habibullah G. Ghouri, Advocate.
The State: Mr. Muhammad Noonari, D.P.G.
Date of hearing: 14-10-2020
Date of Decision: 14-10-2020
J U D G M E N T
Zulfiqar Ali Sangi, J. This criminal acquittal appeal has been filed against the judgment dated 18.10.2019, passed by the learned 1st. Additional District & Sessions Judge, Shahdadkot in Sessions Case No.271/2013, whereby the respondents/accused were acquitted of the charge by the learned trial court.
2. Briefly the facts of the case are that on 10-04-2013 at 10:00 hours, the complainant Dhani Bux Jagirani went to police Station Sijawal Junejo and lodged the FIR stating therein that on 09.04.2013, he along with his nephew Siddique @ Fida Hussain, Khamiso and Ali Gohar were available at their Otaque. At about 06:00 pm, accused namely, 1. Manzoor, 2.Liaquat Ali, 3. Ali Bux, 4.Dost Ali, 5. Mohammad Nawaz, 6. Shaman Ali and two un identified persons came over there and asked Mohammad Siddique alias Fida Hussain to accompany them for some work, Mohammad Siddique @ Fida Hussain accompanied the accused persons, who did not come back. However, on the following day in the morning time the complainant came to know that a dead body of a person was lying at the Katcha path leading towards village Lashari. Thereafter, the complainant along with his witnesses proceeded towards pointed place and identified the dead body of the deceased to be Mohammad Siddique @ Fida Hussain son of Rahim Bux @ Rahim Dad Jagirani. The complainant noticed that the deceased had received fire arm injuries on his left arm and left side of his chest. The blood was also lying over there. Thereafter, the complainant got shifted the dead body to Taluka Hospital Mirokhan and then he got lodged F.I.R against accused persons. Motive as set up by the prosecution was dispute over landed property. FIR was recorded vide Crime No. 15/2013, U/S 302,148,149 PPC at P.S Sijawal Junejo.
3. After completing the investigation, Investigation Officer submitted the challan and after completion of all the legal formalities the trial court framed the charge against the accused to which they pleaded ‘not guilty’ and claimed to be tried.
4. At the trial, the prosecution examined P.W-1, ASI Qurban Ali Chandio, the author of the FIR, PW -02 Muhammad Aslam Bhutto, the Tapedar, PW-3 ASI Nisar Ahmed Noonari, the I.O, he verified the carbon copy of danishnama, memo of inspection of dead body, memo of inspection of place of incident, memo of arrest and body search of accused Manzoor and report of chemical examiner respectively. PW-4 Dr. Sikander Ali who conducted the postmortem and produced police letter and postmortem report respectively. PW.5. PC Bisharat Ali, he was the corpse bearer and produced the receipt of handing over the dead body of deceased Muhammad Siddique to the complainant. PW-6, Dhani Bux, the complainant who verified the contents of FIR and also owned his thumb impression thereon. PW 7, Khamiso, allegedly shown as the eye witness in the case. PW 8, Imamuddin, the mashir of danishnama, memo of identification of dead body and memo of place of vardat. Thereafter, prosecution closed its side.
5. Trial Court recorded statements of accused under section 342 Cr.PC wherein they denied the prosecution allegations, claimed their false implication in the case by stating that police had managed the chemical report and the PWs are interested witnesses have falsely deposed against them. However, they did not opt to record their statements on oath so also did not opt to lead defence evidence to disprove their case.
6. After assessment of evidence learned trial court has passed the above impugned judgment which is assailed before this Court through instant criminal acquittal appeal.
7. Learned counsel for the appellants contended that all the witnesses have fully supported case of prosecution but their evidence was not appreciated by the learned trial court; that there are minor contradictions in the evidence of witnesses and on the basis of minor contradictions, accused were acquitted; that learned trial court has committed illegality while acquitting the respondents and there was huge evidence for conviction of respondents.
8. Learned DPG contended that there are several contradictions in the evidence of the witnesses and learned trial court has rightly appreciated the evidence and passed the acquittal judgment and he fully supported the judgment of trial court and prayed for dismissal of acquittal appeal.
9. We have heard learned counsel for the parties and gone through the material available on the record with their able assistance.
10. On careful scrutiny of the evidence of complainant Dhani Bux, who deposed that on 09.4.2013, he alongwith Khamiso, Fida Hussain and Ali Gohar were available on their lands situated adjacent to their house when about 6.30 pm accused Liaquat, Manzoor, Dost Ali, Shaman, Ali Bux, Muhammad Nawaz, Roshan and Wali Dad came there. Accused Liaquat and Manzoor asked his nephew Muhammad Siddique @ Fida Hussain to have accompanied for a while as they hada piece of work. Whereas in the FIR it is mentioned that the complainant along with deceased Siddique @ Fida Hussain and others were available at their Otaque when at about 6:00 PM accused persons namely Manzoor, Liaquat Ali, Ali Bux, Dost Ali, Muhammad Nawaz, Shaman Ali and two unidentified persons came over there and asked Muhammad Siddique @ Fida Hussain to have accompanied them for some work. This is not only contradiction but it appears that complainant had improved his case which creates very serious doubt.
11. It is admitted fact that there was no eye witness of the incident of the murder of the deceased Muhammad Siddique @ Fida Hussain. The PW Khamiso also admitted during cross examination by replying that “It is correct to say that none of us seen the accused persons while they fired upon the deceased.”
12. The complainant and the witness Khamiso deposed that when they reached at the place where dead body of deceased was lying police of police station Sijawal also reached there but there is no evidence which support this fact that police also reached at the time when complainant and witnesses first time seen the deceased at the place where dead body of the deceased was lying.
13. We carefully examined the impugned judgment of the trial court and found that the trial court discussed each and every piece of evidence produced by the prosecution in depth. Relevant portion is reproduced as under:-
“27. In addition to above stated position, I have also noted that the medical officer, investigating officer, corpse bearer PC Bisharat Ali and mashir are also not inconsistent with each other on the material points. For instance, the medical officer in his evidence specifically deposed that on 10.04.2013 he had received the dead body of the deceased Muhammad Siddique @ Fida Hussain brought by P.C Bisharat Ali. He did not mention about the time at which he had received the dead body. However he had deposed that he had started postmortem of the dead body at 11:30 am and ended the same at 01:00 pm.
28. As against the evidence of the medical officer, PC Bisharat Ali who was corpse bearer in his evidence deposed that he was given the dead body by ASI Nisar Ahmed Noonari between 09:30 to 10:00 am and reached at Hospital at 12:30 pm. He further deposed that the doctor came at Hospital at 01:00 pm who after having conducted postmortem of the deceased Muhammad Siddique @ Fida Hussain returned the dead body at 1:30 pm.
29. If the evidence of police constable PC Bisharat Ali is believed to be true that he brought the dead body at 12:30 pm and the doctor came at Hospital at 01:00 pm then the evidence of the doctor would become untrue because as per his evidence (medical officer) he had started the post-mortem of the deceased at 11:30 am and finished at 1:00 pm. Therefore, under such circumstances it can be said that either the police constable Bisharat Ali was not available at Hospital. This contradiction also made the case doubtful.
30. Be that as it may, while I have gone through the
evidence of mashir Imamuddin and found that he had deposed that the police
officer ASI Nisar Ahmed Noonari along with Subordinate came at Hospital at
11:00am and examined the dead body. If it is believed that Police officer had
examined the dead body at 11:00 am then it would be said that the dead body was
brought at Hospital at 11:00am. Moreover the said mashir also went to say that
the
police had secured the clothes of the deceased Muhammad Siddique and he was the
mashir or securing bloodstained clothes but in fact no such memo has brought on
record which could suggest that the police had ever secured bloodstained
clothes.
31. Be that au it may, while I have examined the evidence of the investigating officer and found that he during his evidence deposed that he alongwith PC Bisharat reached at Hospital by motorcycle at 1100am where the doctor Abdul Sattar was already present, In fact doctor Sikandar Ali Sheikh was present al hospital and not Dr. Abdul Sattar as claimed by the police officer. More so the PC Bisharat Ali in his evidence deposed that the dead body was shifted by a Dotson in which ASl Nisar Ahmed Noonari was also accompanied him, It means the police officer was not available at Hospital otherwise he could have known about the availability of doctor and other things.
32. I have noted that the prosecution brought all the carbon copies without offering any explanation regarding original ones.
33. Keeping in view of the above detailed discussion, the net result thereof is that the prosecution miserably failed to bring on record direct or oven weak type of indirect circumstantial evidence which could connect the aroused persons with the alleged murder of the deceased Muhammad Siddique @Fida Hussain. As such it can certainly and without any hesitation be said that the prosecution miserably failed to prove its case against the accused persons beyond any shadow of doubt. Accordingly, the instant point stands answered as not proved being doubtful. ”
14. It is well settled principles of law that burden of proving the case is always upon the shoulders of prosecution and prosecution is bound to prove the case beyond shadow of reasonable doubt, and if a single circumstance creates doubt in the case of prosecution it goes in favour of accused and the benefit of doubt shall be extended to the accused not as a matter of grace but as a matter of right as laid down by Honourable Supreme Court of Pakistan in case of Tariq Pervaiz v. The State (1995 SCMR 1345), Muhammad Akram v. The State (2009 SCMR 230) and in case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639).
15. In view of above, the impugned judgment seems to be an elaborate, speaking one hence does not suffer from misreading, non-reading or non-appraisal of evidence, and it does not warrant interference of this court. Further it is well settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. Reliance is placed on Inayat Ullah Butt v. Muhammad Javed etc. (PLD 2003 SC 563),Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others(2017 SCMR 1710).
16. Whatever is stated above, we have reached at the conclusion that the acquittal of respondents does not suffer from any illegality so as to call for our interference with the impugned judgment. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and we see no legal justification to disturb the same in view thereof the instant Cr. Acq. Appeal is dismissed.
JUDGE