IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Acq. Appeal S-55 of 2020 : Ali Murad vs.
Ghulam Yaseen & Others
For the Appellant : Mr. Abdul Rehman A. Bhutto Advocate
Date of hearing : 03.02.2022
Date of announcement : 03.02.2022
ORDER
Agha Faisal, J. (1) Over ruled (2) Granted subject to all just exceptions (3) Present criminal acquittal appeal is filed against acquittal rendered vide judgment dated 10.10.2020 by the court of learned I-Civil Judge and Judicial Magistrate, Kandhkot. It is considered illustrative to reproduce the findings of the learned court whereupon the conclusion is rested:
"Following material contradiction and glaring discrepancies have been found in the case of prosecution which have caused the dents to it and created doubts:
Firstly; The complainant of the case deposed in his examination in chief at Exhibit No: 11 that “I along with Nisar Ahmed, Shahmurad and Lal Bux were available outside of our house in the street.” While on the contrary hand, the eye witness of occurrence and the injured victim namely Shahmurad deposed in his examination in chief at Exhibit No: 12 that “I along with Ali Murad and Nisar were available at Shakh which is outside of our house.”
Evidently, the complainant deposed that the occurrence took place in the street outside of his house but the eye witness of occurrence Shahmurad deposed adversely that the occurrence took place at the Shakh. Moreover, another contradiction is also found during appreciating their evidence that the complainant showed the presence of 3 other witnesses except him while on the contrary the eye witness namely Shahmurad showed the presence of only 2 witnesses except him at the crime scene which is major dent in the case of prosecution.
Secondly; The complainant of the case deposed in his examination in chief at Exhibit No: 11 that “The accused Lalo made hakal to other accused persons and caused lathie blow to victim Shahmurad at his head. Accused Yaseen caused Lathie blow to him at his temple. Accused Barkat caused lathie blow to him at his mouth and his tooth was broken.” While on the contrary hand, the eye witness of occurrence and the injured victim namely Shahmurad deposed in his examination in chief at Exhibit No: 12 that “The accused Lal Bux made hakal and prohibited not to pass from the street. The accused Laloo caused lathie blow to me at my head. Accused Yaseen caused lathie blow to me at my temple. Accused Barkat caused lathie blow to me at my mouth and my tooth was broken.”
The complainant of the case alleged in the version of FIR at Exhibit No: 07/A that “Accused Asadullah, Lalo, Ghulam Yaseen and Barkat caused lathie blows to brother Shahmurad. We saw him that he had injuries at his head, mouth and right side of the Temple.”
It is clear from the above reproduced gist of ocular account of evidence that the complainant and the injured victim/eye witness of occurrence made dishonest improvements in their depositions at Exhibits No: 11 & 12 by assigning the specific roles of injuries to the said accused persons. But the complainant did not allege any of the above mentioned fact in the version of FIR at Exhibit No: 07/A which is clearly transpired from the contents of FIR reproduced above. The complainant clearly alleged in the FIR that the accused persons equipped with lahteis caused injuries to the victim conjointly which story is very different from the above gist of ocular account of evidence. Hence, the case is full of dents and doubts which favour the above named accused persons.
Thirdly; The complainant of the case deposed in his examination in chief at Exhibit No: 11 that “The accused persons armed with Guns aimed their weapons upon us and made firing upon us.” While on the contrary hand, the eye witness of occurrence and the injured victim namely Shahmurad deposed in his examination in chief at Exhibit No: 12 that “The accused persons armed with Guns made firing upon us.”
The role of firing assigned to the accused persons who were shown duly armed with Guns is also dishonest improvement by the complainant and the injured/eye witness of occurrence because the complainant never allegedly disclosed such fact in the version of FIR at Exhibit No: 07/A.
Fourthly; It is evident from the depositions of the complainant at Exhibit No: 11 and the eye witness of occurrence at Exhibit No: 12 that they did not utter single word which may attract the category of the penal section 504. Such a concealment in their deposition as compare to the version of FIR is also the dent in the case of prosecution.
Fifthly; The Medical officer deposed and admitted in his cross-examination at Exhibit No: 09 that “It is correct to suggest that no rectal temperature was checked by me during examination. It is correct to suggest that I have not produced X-ray and CT-scan reports before this Court.”
Sixthly; The Medical officer deposed and admitted in his cross-examination at Exhibit No: 09 that “It is correct to suggest that the Police letter issued to me for examination of Victim does not reveal the injury of broken tooth.” While on the other hand, the eye witness of occurrence and the injured victim namely Shahmurad deposed in his examination in chief at Exhibit No: 12 that “It is correct to suggest that I did not produce the broken tooth to the I.O of the case Ghulam Rasool. Voluntarily says that the broken tooth was disappeared in clay.”
Seventhly; The I.O of the case deposed and admitted in his cross-examination at Exhibit No: 10 that “It is correct to suggest that nothing was secured from the Place of Incident. I say that there was no blood on earth during inspection. Voluntarily says that the FIR was registered with delay of 07 days.” On the other hand, the Mashir of Inspection namely Shahnawaz also deposed and admitted in his cross-examination at Exhibit No: 13 that “I say that I.O of the case saw the blood on earth. I say that no empty corteges were available at Place of Incident during inspection.”
Eighthly; The I.O of the case deposed and admitted in his cross-examination at Exhibit No: 10 that “I say that the Mashirs of Place of Incident are relatives of complainant. I say that I asked the people of locality to act as Mashir of Place of Incident but they refused. It is correct to suggest that I did not initiate any proceeding against those persons. I say that there is previous grudge between the parties.”
Ninthly; That the prosecution produced 07 witnesses in the witness box and examined all of them in order to prove its case against the above named accused persons. But it failed to produce the qualitative evidence rather than quantitative evidence. There are many material contradictions, discrepancies, infirmities, dishonest and deliberated concealments in the depositions of the all these witnesses which have rendered the case doubtful one.
During the appreciation of evidence, no corroboration either in the ocular account of evidence or circumstantial account of evidence is found. Hence, all the dents in the case of prosecution favour the above named accused persons.
Apparently, the above reproduced pieces of evidence and the discussion have caused serious dents in series to the case of prosecution. The benefits of such dents to the case of prosecution case favour the above named accused. Thus, the Point No: 01 is answered in negative/doubtful against the present accused.
CASE LAW/ CITATION 2019 MLD 685:
In this regard I have been guided by the well-entrenched principles of law discussed by my Lordship Abdul Maalik Gaddi, Justice, in a case law/ citation 2019 M L D 685, in the case of MUHAMMAD IMRAN Versus The STATE.
CASE LAW/ CITATION PLD 2019 Supreme Court 527:
I have also been guided by the well-entrenched principles of law discussed in the case law/ citation, PLD 2019 Supreme Court 527, settled by My Lordship Asif Saeed Khan Khosa, Chief Justice, Mazhar Alam Khan Miankhel and Sajjad Ali Shah, Justices; in the matter of Notice to Police constable Khizar Hayat Son of Hadait Ullah on account of his statement.
DERTERMINATION OF POINT NO: 02
CASE LAW/ CITATION 2019 S C M R 129:
While deciding instant criminal case, I have also been guided by My Lordship Manzoor Ahmad Malik, Sardar Tariq Masood and Ijaz ul Ahsan, Justices; in a case called ABDUL JABBAR and another Versus The STATE, having citation reference 2019 S C M R 129 reproduced as under;
BENEFIT OF DOUBT. Once a single loophole was observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution case automatically went in favour of an accused.
For the reasons discussed above in Point No: 01, the prosecution has failed to prove the case against the present accused persons namely Ghulam Yaseen Son of Hidayatullah, Sain Bux Alias Bhalo Son of Faiz Mohammad Alias Punhal, Asadullah Alias Laloo Son of Hidayatullah, Barkat Son of Hidayatullah and Amanullah Son of Abdullah; therefore, I do hereby acquit them under section 245 (1) Cr. P. C by extending them benefit of doubt. The accused are present on bail, therefore, their surety/sureties stand discharged from all liabilities and bail bond/bonds cancelled. "
2. Learned counsel was asked to demonstrate any infirmity in the judgment, however, he remained unable to do so.
3. It is settled law that an accused is innocent till proven guilty and exoneration by a court of competent jurisdiction confirms the same. Such a vested right may only merit interference if the court below has disregarded material evidence, misread evidence and / or received such evidence illegally. Interference in acquittal ought not to be warranted merely because on re-appraisal of the evidence a different conclusion could also be 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 conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice. The august Supreme Court has envisaged a pivotal test in such matters, being that the finding sought to be interfered with, after scrutiny, should be found as artificial, shocking and ridiculous. No such case has been made out before this Court in the present case.
4. This Court has given careful consideration to the contents of the impugned judgment and is of the view that that the appellant’s counsel has remained unable to identify any infirmity therein, meriting interference of this Court. In view of foregoing, this appeal is dismissed in limine.
JUDGE