Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S –18 of 2012

 

                                                                                   

 

Date of hearing                       :           30.08.2019.

 

Mr. Zulifqar Ali Jatoi, Additional Prosecutor General.

 

 

                                                            -.-.-.

 

 

J U D G M E N T

 

 

Naimatullah Phulpoto, J.  Appellant / Complainant  has filed this acquittal appeal on 14.05.2012  against the respondents Nasrullah alias Papoo and Phelwan alias Palho who were acquitted by learned 2nd  Civil Judge & Judicial Magistrate Ghotki in criminal case No.245/2011 for offence under sections 457, 380 PPC, vide crime No.77/2011 registered at Police Station Adilpur.

 

2.                     Brief facts of the prosecution case as disclosed in the Judgment of trial Court are that on 29.05.2011 complainant along with his family was sleeping in the house, at 1.30 a.m he woke up on the barking of dogs and saw on the bulb light that accused Nasrullah alias Papoo armed with pistol was stealing Television from his house on his head. Accused Pehlwan alias Palho, armed with gun along with two unidentified persons was also present in his house. Complainant raised cries which attracted to P.Ws Nisar and Akber Chachar. It is alleged that they also identified accused persons but complainant party could not go near to the accused persons as they were armed with weapons. Complainant party kept silence and accused went away. Complainant has further stated that accused had taken away from his home Nokia phone and cash of Rs.6500/-. Thereafter, complainant went to his nekmard Rehmatullah and narrated him incident, then, he went to Police station Adilpur and lodged FIR. It was recorded on 03.06.2011 vide crime No. 77/2011 for offences under sections 457, 380 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 both the accused at Ex.2. They pleaded not guilty and claimed to be tried.

5.         At the trial, prosecution examined eight (04) PWs and prosecution side was closed.

6.         Statements of accused Nasrullah alias Papoo and Phelwan alias Palho were recorded under Section 342, Cr. P.C in which accused claimed false implication in this case and denied the prosecution’s allegation.

7.         Learned trial Court after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 17.04.2012 acquitted the accused for the following reasons:

“          It is the case of prosecution that during the night 29/30.05.2011 at 1.30 a.m the accused committed theft from the house of complainant and were seen by the complainant party taking away articles from weapons restraining them not to follow. The manner of such incident as deposed by complainant in his examination in chief is re-produced as under :-

“          During same night at about 1.30 a.m (30.05.2011) I woke up on the barking of dogs and saw on the light of electricity bulbs. I identified accused Nasrullah as Bagoo having Television on his head and holding pistol in his hand, so also Pahlwan holding gun both bycaste Malik and remaining two being unidentified holding lathies were going out from one room of my house. I also cries whereupon my cousin Nisar Ahmed and Ali Akber came running they also saw the accused and identified them.”

The other witness PW Nisar to support ocular account has deposed about such manner in his examination in chief as under:-

“           I was sleeping in my house during the night of 30.05.2011, while complainant was sleeping in his own house. Where at about 1.30 a.m I woke up on hearings of barking of dogs and cries of complainant from his house. I came to the house of complainant  along with our uncle Akber were appeared from his house. Electricity bulbs were on, where upon we saw accused Nasrullah alias Papoo having a T.V on his head and a pistol holding in his hand so also accused Pahilwan alias Palhoo holding gun and two unidentified persons with lathies in their hands were coming out from the hedge passage lying open of the complainant.”

            However, in cross examination both of them have contradicted each other about the manner created doubt therein. It has been disclosed by complainant that accused holding lathies were infront of remaining accused and accused Nasrullah was holding pistol in his right hand and they saw accused at about 4/5 paces after getting up from cot he raised cries and both PWs reached there almost together. He has further deposed that he was following accused without resistance. His such replies from cross examination are re-produced as under:-

            “ The accused were present and coming out from western side room of my house, the accused holding with latheis were in front of remaining accused but jointly. The accused were Nasrullah and Pahawan were previously known to us being living in our vicinage. Accused Nasrullah was holding the pistol in his right hand. I do not remember the company name of my T.V because it was very old and ancestral property. We saw accused just at about 4/5 paces. After getting up from cot I had raised cries. Both P.Ws had reached there almost together .”

Whereas, P.W Nisar had disclosed that iw as accused Nasrullah who was heading all of them and was also having T.V on his head. Complainant only was standing in the house and his such words are re-produced as under :-

“ Accused Nasrullah alias Papoo was heading of all of them who was also having T.V on his head. Complainant was sanding in his house, when we reached and saw him. The accused had just about 10/12 feet from us. The accused had went away towards western side.

Now in the back drop of such contradiction the question of identification of accused on electricity bulbs is to be discussed as the complainant party has disclosed that I have identified the accused on the light of electric bulbs. The I.O has produced mashirnama of place of wardat at Ex.7/A and has not disclosed availability of any electricity bulbs in the house or outside the house of complainant.  The mashirnama further doubts the alleged incident, because in cross examination the complainant has disclosed that accused after committing theft from western side room were coming out. But at the time of visit of I.O, he has shown eastern side room wherefrom alleged theft was committed. It is admitted position of the mashirnama and evidence of I.O that no any electricity bulb was taken into custody or produced before Court. In this manner the very source of identification has become doubtful and reliance in this regard is placed 2001 YLR 2436 as under :-

“ In order to establish the house-trespass on the part of applicants the prosecution is relying the source of identification on torch and bulb. Admittedly neither torch has been produced by the prosecution nor bulb has been found by the Investigating Officer and in the absence of both the aforementioned articles the case of prosecution is shattered.”

The complainant has further doubted the FIR in his cross examination, wherein he has only gave number of accused to be four in total two being unidentified yet in cross examination he has disclosed that number of accused more than four and by specifically giving namesof three other persons, thereby heavily doubting the very of FIR. His such words are also re-produced as under :-

            “ I know one Asad and Imdad who are my relatives. It is correct that the faisla of this incident was also held by Qadridad Khan Dharejo between me and said my relatives Asad and Imdad but we did not accept such faisla. One Gulzar alias Baboo was also part of such faisla as one of the suspected culprit. But they have been avoiding to give faisla and Qadirdad Khan also siding with them otherwise they three Imdad, Gulzar and Asad are also culprits of my such incident.”

Now the question of recovery comes. According to the evidence the accused during remand had led to the recovery of alleged stolen T.V, mobile set and some cash amount. I.O has produced such mashirnama at Ex.7/C. According to evidence of IO on 9.6.2011 the accused was taken out from lock up and after interrogation they became ready to hand over the alleged stolen property and led them to forest path called Mori waro Phhaho wherefrom, they produced T.V, mobile phone and cash amount of Rs. 1000/- in presence of two mashirs Ali Asghar and Shafi Muhammad . It has been disclosed in cross examination by IO that they had gone there on hired taxi car with private driver, yet he had not called private driver to be mashir though he was present at that time. He has disclosed that recovery was effected at 200 paces towards western side from the road and such property was in bushes. He has admitted that complainant has not handed over any receipt of such TV or mobile phone and the such bushes were adjacent to the forest path towards western side. He has admitted, that he had not mentioned the number of currency notes in mashirnama and disclosed that such mashrinama was written by WPC. However, mashir Ali Ashgar has heavily contradicted the recovery proceedings making it heavily doubtful. He has disclosed that the bushes wherefrom recovery was effected about half kilometer from such road and vehicle was moved bit away from road and left at the road side and that both times one PC was driver the Car and that mobile phone and cash amount was in plastic wrapper and that such mashirnama was written by one munshi by keeping paper on the plastic wrappers and that such mashrinama was written by one munish by keeping paper on the bonnet of the car which according to him was parked half kilometer away at road side. The mashir has admitted that complainant is his nephew and he lives 6/7 K.Ms away from the place of recovery. He has further admitted that IO had not tracked any neighbourer or villager form village Dragho. He had admitted that he has acted as mahsir of place of incident so also alleged recovery. In this manner the alleged recovery has become heavily doubtful.

            It is the case of accused that IO ASI Pir Bakhsh Sellro with whome their matrimonial dispute is going on and the complainant party was planted by him to involve them in this case falsely as he was heavily interested to obtain conviction against accused. The IO has admitted tat he has remained IO against same accused of crime No.92/2009 PS Adilpur. In the back drop of above discussed I have come to the conclusion that prosecution witnesses cannot be relied upon for Safe administration of justice. Therefore, point No.1 is replied as not proved.

POINT NO.2.

                        For what  has been discussed at point No.1, it can be said safely that prosecution has failed to prove the charge against accused. Therefore, all accused are acquitted from the charge u/s 245(i) Cr.P.C. They are present on bail, as such their bail bonds are cancelled and surety discharged.”

 

8.         Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

9.         It appears from record that appellant / complainant and his counsel failed to appear before this Court since 2018. On the last date of hearing viz. 16.08.2019 appellant and his counsel were also called absent. Case was adjourned for today with note of caution if appellant / complainant and his counsel failed to appear, the present acquittal appeal shall be proceed without  waiting further. Intimation notice was issued to counsel for appellant. Despite issuance of intimation notice, none appeared. In the present case there is no legal justification to adjourn it. I have perused evidence with assistance of Additional Prosecutor. There was delay of four days in lodging of the FIR for which no plausible explanation has been furnished.  It was night time incident. According to complainant party, accused / respondents were identified on the bulb lights but those bulbs were not secured by the Investigating Officer during investigation. Even there is no mention of bulbs in the mashirnama of place of vardat. There are material contradictions in the evidence of complainant and witnesses on material particulars on the case. Evidence of P.Ws is also materially contradicted on the point of recovery of the stolen property.

10.       Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General argued that trial Court has properly appreciated the evidence and submits acquittal of the accused / respondents  is neither perverse nor based upon misreading of evidence. He has supported the acquittal judgment of the trial Court.

11.       In the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others(2019 SCMR 1315), Hon'ble Supreme Court 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.”

 

12.       From perusal of judgment of trial Court it reveals that there is no serious flaw or infirmity in the impugned judgment. View taken by the learned trial Court is a possible view, structured in evidence available on 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, impugned view is found on fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled.

13.       For the above stated reasons, this Criminal Acquittal Appeal is without merit and the same is dismissed.

 

 

 

 

J U D G E

Irfan/PA