Judgment Sheet.

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S-46 of 2019

Date of hearing : 21.10.2019.

Mr. Alam Sher Bozdar, Advocate for Appellant.

Mr. Zulifqar Ali Jatoi, Additional Prosecutor General.

-.-.-.

J U D G M E N T

Naimatullah Phulpoto, J. Through this Acquittal Appeal, appellant / complainant Abdul Ghaffar son of Abdul Ghani Bozdar has impugned the judgment dated 27.02.2019 passed by Judicial Magistrate-I Mirpur Mathelo in criminal case No. 72/2018 for offences under sections 337-A(i) and 337-F(ii), 114, 147, 148, 149, 504, 34 PPC. On the conclusion of trial vide judgment dated 27.02.2019 respondents / accused Muhammad Haroon, Arbab Ali, Nawab Ali and Abdullah were acquitted.

2.                     Complainant Abdul Ghaffar lodged his report at Police Station Mirpur Mathelo against accused, it was recorded vide crime No. 167/2016 under sections 337-A(i) and 337-F(ii), 114, 147, 148, 149, 504 PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under sections 337-A(i), 337-F(ii), 337-L(ii), 114, 504, 34 PPC.

4. Trial Court framed the charge against all the accused. They pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined eight (06) PWs and prosecution side was closed.

6. Statements of accused persons were recorded under Section 342, Cr. P.C in which accused claimed false implication in this case and denied the prosecution’s allegation. They did not examine themselves on oath nor produced any witness in their defense.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence, by assigning sound reasons, acquitted the accused vide judgment dated 27.02.2019, for the following reasons.

“Point No.1.

To prove this point, the prosecution has relied upon the ocular and medical evidence, 

All the private P'Ws including complainant have deposed that on the day of incident, complainant along with his maternal cousin Mohammad Oabil and Uncle Ameer lux were working in the lands where accused persons came, abused and caused injuries to complainant party. Similar version was recorded in the evidence of PW- 02 Mohammad Qabil who retreated the same facts of FIR. Pw-4 mashir of Injuries has also stated that he was available at his village Belo Naich along with Ghulam Mustafa, Rahib and Haji Khan where they heard cries, they rushed to the side of cries and saw that Abdul Ghaffar and Mohammad Qabil were injured, he further said, they took the injured to PS and police prepared the memo of injuries and obtained his signature as well as signature of co-mashir. Surprisingly, the entry No.15/1600 dnted:20.11.2016 which was kept for issuance of medical letter shows the name of one Abdul Ghani who is father of injured/complainant Abdul Ghaffar, interestingly, in the evidence of all the PWs the presence of one Abdul Ghani was not shown, either at the time of incident or after the incident, I again produce the relevant piece of evidence of PWs below, 

PW-01 complainant at Ex.7 deposed "On dated: 20.11.2016 I along with my cousin Mohammad Qabil and maternal uncle meer Bux were working and cleaning the watercourse.."

PW-01 in his cross examination deposed that “… we were taken by Aijaz Bozdar on motorcycle to PS after the incident and Ghulam Mustafa took Muhammad Qabil, we told the facts of incident to ASI whose name I don’t remember now …”

PW-02 Mohammad Qabil at Ex. 8 in his examination in chief deposed that “…. I along with complainant and maternal uncle Ameer Bux were present at the lands and were working and cleaning the water course ..."

Above extract of evidence deposed by PWs clearly negates the presence of one Abdul Ghani whose name is shown in the entry for obtaining medical letter from police 2 days before lodging of FIR, further, neither he is complainant of this FIR nor witness in challan sheet, which creates doubt in the prudent mind and negative interference may be drawn as per article 129(g) of Qanoon Shahadat Order, which creates doubt in the manner of incident as suggested by the prosecution, for this I am fortified by the case law reported in Abdul Hamid Vs The State PLD 1980 Peshawar 25. 

Further regarding the injuries PW-02 Mohammad Qabil at Ex.8 deposed in his cross examination that the injury on left foot is inclined shape and PW-04 Aijaz at Ex.11 deposed that injury to Mohammad Qabil is horizontal and parallel to foot which also creates doubt in the manner of incident as suggested by prosecution, on the contrary the MO Dr. Mir Hassan at Ex. 10 deposed in his cross examination that injury of Mohammad Oabil was straight/vertical from foot towards leg which is contrary to each other of PWs, for this I am fortified by the case law reported in Abdul Majeed Vs The State 2012 MLD 964.

PW-4 Aliaz who is mashir of injuries deposed at Ex.11 in his cross examination that his house is situated about 4 KM away from the place of incident and he heard the cries of complainant party, which is unbelievable how and the distance of 4 KM mashir heard the noise of cries which is surprising and creates reasonable doubt. He further deposed that when they took the injured to PS they told the names of accused to police and preparation of memo of injuries but the entry No:15/1600 hours shows the arrival of injured at PS neither show the name of PW Aijaz neither show the name of accused, which also substantiate the doubt in prosecution case, 

It is settled principle of law that to extend benefit of doubt there is no necessary to gather many circumstances, even a single or slightest doubt would arise out of prosecution case is, sufficient to such doubt would be resolved in favor of accused. Reliance placed on 2018 P.Cr.L.J 1042 & 2018 YLR page 110. In the light of the discussion above, point No.01 is replied as DOUBTFUL. ”.

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

9. Learned advocate for the appellant/complainant mainly contended that impugned judgment of the trial Court is based on misreading and non-reading of evidence. He has also argued that trial Court has disbelieved strong documentary evidence without assigning sound reasons, and prayed for converting the acquittal to the conviction.

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

11. It is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

12. I have perused the impugned judgment. There is also no serious flaw or infirmity in the impugned judgment. In this case,according to prosecution evidence injuries were caused to the P.Ws, with hard and blunt substance but according to evidence of the medical officer injury No.1 was caused by sharp cutting weapon. Counsel appearing for appellant / complainant submits that medical certificate issued by doctor was challenged before medical board but no chairman or member of the medical board has been examined before the trial Court. Trial Court has found presence of PW Abdul Ghani doubtful. Counsel for the appellant could not satisfy the Court regarding infirmities in the case of prosecution as highlighted in the impugned judgment. Ocular evidence was contradictory to medical evidence. There are material contradictions in the evidence of prosecution witnesses. 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. The Criminal Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Irfan/PA