Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. D – 103 of 2016
Present: Mr. Naimatullah Phulpoto, J
Mr. Khadim Hussain
Tunio,J
Date of hearing : 13.11.2019.
Mr. Muhammad Arif Malik, Advocate for the appellant / complainant.
Mr. Shakeel Ahmed Kalwar, Advocate for respondent / accused.
Mr. Zulifqar Ali Jatoi, Additional Prosecutor General.
-.-.-.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J.-- Through this Acquittal Appeal, appellant
/ complainant Mushtaque Ahmed son of Muhammad Shareef Malik has impugned the
judgment dated 07.06.2016 passed by
learned Additional Sessions Judge-I Ghotki in Sessions case No. 236 of 2015 for
offences under sections 302, 34 PPC. On the conclusion of the trial vide judgment
dated 07.06.2016, respondent / accused Mian Imtiaz Ahmed was acquitted.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are that on 14.05.2015 complainant
Mushtaque Ahmed Malik lodged his FIR alleging that on 09.05.2015 he along with
his inmates was available at his house when at about 02:00 PM the door of his
house was knocked. They came out and saw three persons on two motorcycles, one
of whom was identified as Mian
Imtiaz Ahmed son of Mushtaque Ahmed Samejo, while two others whose faces were
opened were not known, however would be identified if seen. Mian Imtiaz told
his son Ashique Hussain that the
electricity of his house is out of order which may be repaired and electricity
may be restored. Complainant's son accompanied them on a motorcycle but could
not return back till 07:00 PM, therefore, complainant with his brother Mohammad
Idrees and maternal cousin Mohammad Umar rushed to the rented house
of Mian Imtiaz Ahmed, where Mian Imtiaz was available along with two unknown
persons, they all on seeing complainant party ran away. The complainant then
entered inside the house and saw that his son Ashique Hussain was lying dead on
the ground having swelling on his neck. They took the dead body through police
to the Government Hospital Daharki and after postmortem the dead body was
brought to the house and after burial and receipt of condolences,
complainant appeared at Police Station Daharki on 14.05.2015 and lodged report
that Mian Imtiaz and his 02 unknown companions committed murder of his son.
3. On
the conclusion of the investigation, challan was submitted against the respondent
/ accused for offences under sections 302, 34 PPC.
4. Trial
Court framed the charge against respondent / accused. He pleaded not guilty and
claimed to be tried.
5. At
the trial, prosecution examined seven (07) PWs and prosecution side was closed.
6. Statement
of accused Mian Imtiaz Ahmed was recorded under Section 342, Cr. P.C in which
accused claimed false implication in this case and denied the prosecution’s
allegation. He did not examine himself on oath nor led any evidence in his
defense.
7. Learned
trial Court after hearing learned counsel for the parties and assessment of the
evidence vide judgment dated 07.06.2016 acquitted the accused for the following
reasons:
“
Heard learned counsel
for the parties and perused evidence led by the prosecution.
Learned
counsel for the complainant has argued that there is strong circumstantial
evidence against the accused which by itself is sufficient to award conviction.
In support of his case he has relied upon case law viz: 2007 SCMR 778, 1998
SCMR-2004 and P.Cr.L.J 1326.
On
the contrary learned counsel for the accused has argued that since the cause of
death of the deceased has not been determined the accused cannot be held guilty
for the murder of deceased and that there is no evidence worth reliance against
the accused. Besides, there was inordinate delay of lodging of FIR which is
also un-explained, thus no reliance can be placed on such delayed FIR. In the
end, learned defence counsel stated that case being of no evidence the accused
may be acquitted from the charge.
I
have considered the above submissions, gone through the papers & the case
law referred to by complainant's learned counsel.
There
is no cavil to the legal proposition that in all criminal cases it is the
bounden duty of the prosecution to prove its case against the accused beyond
any shadow of doubt. As regards murder cases, it is also the bounden duty of
the prosecution to first prove the un-natural death of the deceased, the cause
of death of deceased and then the person who caused such death. Here in the
case, though the complainant, the Medico-legal officer, the witnesses as well
as the investigation officer are unanimous that there was swelling on the neck
of the deceased, but there is nothing on the record to indicate even remotely
that the death of deceased was the result of the said swelling on his neck. In
this regard, the postmortem notes so also the reports of two Chemical Examiners
is also silent. The Medico-legal officer has deposed in clear terms that from
all the symptoms so also the report of two Chemical Examiners the cause of
death of the deceased could not be determined. Very slightly, in the evidence,
it appears that the death of deceased was due to electric current but for that
also there is no reliance evidence, What it appears and for which there are
reasonable ground to believe that cause of death of the deceased was shrouded
in mystery.
Contention
of complainant's learned counsel that there is strong circumstantial evidence
against the present accused, in the circumstances of the instant case, has no
force. Mere recovery of dead body of deceased Ashique Hussain from the house of
accused by itself is no proof that the murder of Ashique Hussain was committed
by the present accused, for the simple reason that neither any incriminating
article has been recovered from the said house, nor it has been established
that the swelling on the neck of deceased was the cause of death, particularly
when there is no evidence that how that swelling was on the neck of the dead
body of deceased. There is also nothing on the record to show that any poison
was administered to the accused. The symptoms of electricity current are also
not there. Besides, there was inordinate delay in lodging of FIR, which has not
been explained at all. The incident, if any, as alleged was committed on
09.05.2015, according to complainant he visited police station on the same day
and informed the police that dead body of his son was lying at Hospital but
none from police came there. He visited the police station on the next day i.e
10.05.2015 when police visited the hospital, even on that day the complainant
has not lodged any FIR but he appeared at police station on 14.05.2015 and
lodged FIR naming the present accused with two unknown persons as the culprits.
As narrated, hereinabove, the cause of death of deceased also not determined by
the Medico legal officer, nor were there other circumstances to show that the
cause of death of deceased was the swelling on his neck.
In
the absence of any evidence worth credence, I am of the considered opinion,
that the prosecution has miserably failed to determine the cause of death of
the deceased and there is no evidence worth reliance against the accused for
awarding conviction. I therefore,
answered point No.2 as not proved..”
8. Complainant being dissatisfied with the
acquittal of the accused has filed this appeal.
9. Mr. Muhammad Arif Malik advocate for the appellant /
complainant mainly contended that deceased
was lastly seen by the PWs in the company of respondent and dead body was
recovered from the house of accused. He has also stated that death of deceased
was unnatural but some favour has been extended by the Medical Officer. It is
also argued that accused in his statement recorded U/S 342 Cr.P.C could not
explain as to why dead body was found in his house. In support of his
contentions he has relied upon the cases of Jaffer Ali vs. The State (1998 SCMR
2669) and Binyamin alias Khari and others vs. The State (2007 SCMR 778).
10. Mr. Shakeel Ahmed Kalwar advocate for respondent /
accused argued that there were number of infirmities in the evidence of
prosecution witnesses and trial Court has rightly acquitted the accused /
respondent. Learned Additional P.G supported the judgment of the trial Court
and argued that trial Court has deeply appreciated the evidence and assigned
sound reasons for recording acquittal in favour of respondent / accused.
11. We have
heard learned counsel for the parties and perused the case file minutely. It is
settled law that any acquittal order cannot be lightly interfered with by the
Appellate Court, though it has wide powers to review the evidence and to come
to its own conclusion. These powers must be exercised with care and caution
because the presumption of innocence is further strengthened by the acquittal
of an accused.
12. It
is also 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 case of Zaheer Din v. The State
(1993 SCMR 1628), following guiding principles have been laid
down for deciding an acquittal appeal in a criminal case:
“However, notwithstanding the diversity of facts
and circumstances of each case, amongst others, some of the important and
consistently followed principles can be clearly visualized from the cited and
other cases-law on, the question of setting aside an acquittal by this Court.
They are as follows:--
(1) In an appeal against acquittal the
Supreme Court would not on principle ordinarily interfere and instead would
give due weight and consideration to the findings of Court acquitting the
accused. This approach is slightly different than that in an appeal against
conviction when leave is granted only for reappraisement of evidence which then
is undertaken so as to see that benefit of every reasonable doubt should be
extended to the accused. This difference of approach is mainly conditioned by
the fact that the acquittal carries with it the two well accepted presumptions:
One initial, that, till found guilty, the accused is innocent; and two that
again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second
presumption and will also thus lose the first one if on pints having conclusive
effect on the end result the Court below: (a) disregarded material evidence;
(b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles
of reappraisement of evidence will have to be kept in view while examining the
strength of the views expressed by the Court below. They will not be brushed
aside lightly on mere assumptions keeping always in view that a departure from
the normal principle must be necessitated by obligatory observations of some
higher principle as noted above and for no other reason.
(4) The Court would not interfere with
acquittal merely because on reappraisal of the evidence it comes to the
conclusion different from that of the Court acquitting the accused provided
both the conclusions are reasonably possible. If however, the conclusion reached
by that Court was such that no reasonable person would conceivably reach the
same and was impossible then this Court would interfere in exceptional cases on
overwhelming proof resulting in conclusion and irresistible conclusion; and
that too with a view only to avoid grave miscarriage of justice and for no
other purpose. The important test visualized in these cases, in this behalf was
that the finding sought to be interfered with, after scrutiny under the
foregoing searching light, should be found wholly as artificial, shocking and
ridiculous. ”
13. 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.”
14. It appears
that incident had occurred on 09.05.2015 but FIR of the incident was lodged
after five days for which no explanation has been furnished. This is a case of circumstantial
evidence, no one had seen the deceased in the company of the respondent at his
house. Unnatural death of deceased could not be ascertained as deposed by the
Medical officer before the trial Court. Mere recovery of the dead body of the
deceased recovered from the house of respondent / accused would not be
sufficient for recording the conviction in the case. Trial Court has assigned
sound reasons while disbelieving the prosecution evidence. We are unable to
take a different view . Moreover, this is appeal against acquittal, so far the
appreciation regarding appeal against acquittal and appeal against conviction
both are entirely different . After acquittal respondent had got double
presumption of the innocence. No case of interference is made out. Appeal is
dismissed. 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.
15. This Criminal Acquittal Appeal is without
merit and the same is dismissed.
J U D G E
JUDGE
Irfan/PA