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