JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

 

Criminal Acquittal Appeal No.D-28 of 2013

 

                             Before:

Mr. Justice ArshadHussain Khan

Mr.JusticeAmjad Ali Sahito,.

 

 

Appellant:                     FaqirSherGul S/O Fakir Sher Muhammad, bycaste Hisbani

throughMr.Sohail Ahmed Khoso, Advocate.

 

Respondents:                Through Mr.Qurban Ali Malano, Advocate.

State:                             Syed Sardar Ali Shah, Additional P.G.

 

Date of hearing:            19.04.2022.

Date of Judgment:        11.05.2022.

 

 

J U D G M E N T

 

 

AMJAD ALI SAHITO, J-.Beingaggrieved and dissatisfied with the judgment dated19.01.2013 recorded under Section 265-H(i) Cr.P.C in favour of the respondents/accused No. No1,4,6,7 to 10 by the learned Sessions Judge, Khairpur in Sessions case No. 56 of 1998 arising out of the FIR No.06/1997 for the offence under sections 302, 364 PPC registered at PSFaizganj District Khairpurwhereby the respondents were acquitted from the charge. The complainant Faqir Adam has died his natural death hence the appellantbeing the real brother of the deceased SajidFaqrithe appellant has filed the instant Criminal Acquittal Appeal.

 

2.     The facts in brief necessary for the disposal of instant acquittal appeal are that on 03.02.1997 at about 12.00-noon complainant lodged FIR wherein complainant has alleged that on the same day at about 11.00 a.m complainant along with Fakir Sajid, Fakir SherMuhammad, Fakir Shamshad, Noor Ahmed Sarki boarded in Car and went to send the voters of Fakir Bakhat Ali Hisbani to Polling Station, while returning to village Fakir KhushKhairMuhammad, when reached at the distance of about a furlong from link road leading to packachang near village WazeerSangi at about 11.00 a.m one speedy wagon stopped the Car of the complainant and the wagon was driven by Din Muhammad Banbhan. Sajid Ali Hessbani got down from the car, while Sajid Ali Bambhan, ZahidBambhan, Kareem Pathan, JumoPathan, Wahid Bakhsh, Wazeer, NiazHussain, Mehmood and 5/6 unidentified persons also got down from the Car. Out of whom SajidBambhan had a revolver whereas Zahid had a kalashanikov, Kareem Pathan and JumoPathan had arms in their hands and the rest of the accused were also having guns and lathies. After getting down from the wagon Sajid and Zahid instigated other accused to catch hold of SajidHeesbani and put him in the wagon so that he may be murdered at Zaffarabad to teach a lesson to Heesbani for contesting the election against them. In the meantime, Kareem, Jumo and Wahid Bakhsh caught hold of Sajid Fakir Hessbani to whom Noor Ahmed Sarki tried to rescue him but in the meantime unidentified accused caused him lathi blows to Noor Ahmed Sarki who fell down then accused persons while firing and dragging Sajid Fakir Hisbani beaten him and put in a wagon and abducted him intending to murder. Due to fear complainant and Shamshad Ali speed away from the Car after a while complainant party after leaving the accused went to take the injured Noor Muhammad in the Car. The complainant has stated in FIR that he and Shamshad had seen unidentified accused persons whose faces were opened and would identify them if seen and brought the injured in the same car and then went to Police Station and lodged FIR.

3.      After completing the investigation, Investigation Officer submitted the challan and after completion of all the legal formalities, the trial court framed the charge against the accused/respondents No. 1 to 10 to which they pleaded ‘not guilty’ and claimed to be tried.

4.      At the trial, to establish accusation against the accused, prosecution examined P.W Fakir Shamshad Ali at Ex. 16 who produced 164 Cr.P.Cstatement at Exh.16-A. P.W Noor Ahmed Sarki at Exh.17 who produced 164 Cr.P.C statement at Ex.17-A.P.W Dr.HashimAli Shah who produced medical certificate of injured SajidAli ,Form NO. 25-39,  post mortem report and letters at Ex. 18-A to 18-E respectively. P.W Fakir AltafHussain Exh. 21 who produced 164 Cr.P.C statement at Husain at Ex 21-A. P.W Sarfraz Ali at Exh.22 who produced 164 Cr.P.C at Exh.22-A.P.W Muhammad Saleh at Exh.23 who produced receipt of dead body at Ex. 23-A. PW Mashooque Ali at Ex.24 who produced mashirnama of place of incident at Ex.24-A and 24-B. PW Ashique Ali at Ex.25 who produced inquest report, mashirnama of arrest of accused Abdul Kareem, JumaKhan, mashirnama of recovery of lathi without blood stained from accused Mehmood and Juma khan, mashirnama of arrest of accused Mehmood, mashirnama of recovery of wagon, cloths of deceased Sajid Ali at Exh.25-A to 25-H. P.W Abdul Khalqiue M.O at Ex.26 who produced letter, and medical certificate of injured Noor Ahmed at Ex.26-A and B. P.W Irshad Ali Shah MasoomiP.I Investigation Zone at Ex.27 who produced mahsirnama of injury of Noor Ahmed, Fakir Sajid Ali, Abdul Kareem, Muhammad Juman, daily diary letters at Ex.27-A to F respectively.P.W. Riaz Mustafa DDO at Ex.29.Thereafter prosecution closed its side.

5.      Trial Court recorded the statement of the respondents/accused under Section 342 Cr.P.C, wherein theydenied the prosecution allegations leveled againstthem. However, they stated that all the formalities were completed at Police Station and other documents at Police Station and stated that on the day of the incident Abdul Kareem, Abdul Ghafoor, Juma Khan, and Liaquat Ali after casting their votes at Polling Station Akri were in Wagon and were going to NajooSiyal where at about 1.45 pm when reached NazirSangiPacka Chang link road, all of sudden two cars intercepted the wagon from which accused Shamshad, Bakht, Oshquqe, Nazeer,  Sajid, Noor Ahmed and two unidentified persons out of whom five persons armed with weapons, lathies and accused Bakht told them that you have supported Sajid Ali Bambhan in an election and have opposed them and then at the instigation of Fakir Oshque, Bakht Ali, Nazeer who were armed with pistols and Kalashnikovs made fires directly which hit to Abdul Kareem on his abdomen and Juma Khan received injury on his leg and other accused attacked upon them with lathies. The complainant party is the aggressor. The accused party tried to lodge FIR but due to the influence of accused Bakht candidate of Sindh National Front, FIR could not be lodged and the same was lodged underthe directions of this Court. The complainant party to save themselves, lodged FIR against them by showing a false story.  An opportunity was given to accused persons to examine themselves on oath but they refused, however, they examined DWs Liaquat Ali, Ali Dino, Muhammad Ayoob, HazoorBakhshRajper at Ex.42 to 45. PW SafdarAwan Polling Officer PS Din Muhammad Marri.DW GhulamHyder Polling Officer PS SakharShar. PW Haji Muhammad AzeemRetired Police Officer at Ex.48 who produced the letter, certificate, office memorandums, diaries, letters of transfer of investigation etc at Ex.48-A to 48-F respectively.

6.      The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, acquitted the respondents/accused vide judgment dated 19.01.2013.The acquittal recorded by the learned trial Court has been impugned by appellant Fakir SherGul by way of this acquittal appeal.

7.      Learned advocate for the appellant was called absent, however, a written synopsis was filed on his behalf wherein he stated that all accused are nominated in FIR with a specific role, and all the accused persons abducted Sajjad Fakir Hisbani thereafter committed his murder. All witnesses have supported the version of the complainant. Injured Noor Muhammad had received the head injury which is supported by a medical certificate issued by Medical Officer; that there are minor contradictions in the evidence of witnesses and based on minor contradictions, accused were acquitted; that learned trial court has committed illegality while acquitting the respondents/accused and there was huge evidence for conviction of respondents/accused.

8.      Learned Additional P.G assisted by Mr.Qurban Ali Malano Advocate who has filed his vakalatnama on behalf of respondents/accused submits that complainant could not prove his case hence the learned trial Court has rightly passed the Judgment and acquitted the respondents/accused.

 

9.      We have heard the Additional Prosecutor Generalfor State as well as counsel for the respondents and have gone through the written synopsis filed by the learned counsel for the appellant as well as impugned judgment.

 

10.    The appellant presented the instant appeal on 11.3.2013 with a delay of about more than 19 days. The learned counsel for the appellant filed an application for condonation of the delay in filing the appeal. The reason shown in the application was that the judgement was announced on 19.1.2013, whereas the copy was applied on 26.01.2013. A copy of the said judgement was prepared but no notice was issued to the appellant to collect the same hence the judgement was collected on 12.02.2013. The ground mentioned in the application for condonation of delay that the copy of the judgement was prepared but no notice was issued to the appellant to collect the same, was hardly a ground for condonation of delay.  It is a well-settled principle of law that delay has to be satisfactorily explained, as after the expiry of the limitation period a vested right is created in favour of the other party which could not be easily brushed aside as the law always help the vigilant and not the indolent. In the case of Lt.Co.Nasir Malik v. Additional District Judge Lahore, (2016 SCMR 1821),the Hon’ble Supreme Court of Pakistan hasheld that each day of delay had to be explained in an application seeking condonation of delay and that in the absence of such an explanation the said application was liable to be dismissed. Reliance is also placed in the case of Noor Hussain v. Muhammad Salim (1985 SCMR 893), and Mst. KHAIRAN BIBI v.  Mst. HASEENA ATTA and others (PLD 2021 SC 937)

11.As for as the merit of the case is concerned, the perusal of the record, reveals that there are material contradictions in the evidence of the complainant and his witnesses. As per the prosecution case, complainant Noor Muhammad, Fakir Sher Muhammad and Fakir Shamshad were the witnesses of the abduction of Fakir SajidHisbani but the same PWs have not been stated in the deposition that Fakir Sher Muhammad was present along with others at the place of abduction. Complainant has given the names of eight accused persons at the time of abduction but PW Shamshad Ali had given the ten names of accused by adding two more names of Mehmood and Malkoo accused in his examination in chief. As per the prosecution case, the complainant alongwith others had gone to P.S along with eyewitnesses including PW Shamshad for registration of FIR, then why did PW Shamshad had not disclosed the name of the accused MehmoodMalkoo to the complainant and remained silent. Same PW has deposed that accused persons beat them and made direct fire shorts upon them but the prosecution has not produced empties during the trial. The prosecution has neither taken blood stained earth from the place of the incident nor produced such mashirnama during trial before the trial Court. According to the PW-1 Fakir Shamshad Ali, the incident had taken place on 19.03.1997 and the same PW Fakir Shamshad who claimed to be an eye witness of the alleged incident stated in his cross-examination that his statement U/S 161 Cr.P.C statement was recorded on 04.03.1997 ( in other words 15 days before the alleged incident). Moreover, the statement of this PW was recorded by Mukhtiarkar at the place of the alleged incident but this PW during his cross admitted that in his statement U/S 164 Cr.P.Crecorded, Noor Ahmed, Adam and other persons were present along with him. As per the prosecution case PW Noor Muhammad injured was sent to Faizganj hospital for treatment and the prosecution produced a medical certificate at Ex.26 but the same PW/injured contradicted the same stated in his cross-examination that he was not admitted at the hospital, the question arose that when PW/injured was not admitted in hospital then how the medical certificate of injured/PW Noor Ahmed was issued. Furthermore, PW Ashique Ali mashir of injuries stated in his examination in chief that Noor Muhammad Sarki was present at the place of incident in injured condition and police had shown his injuries and he had received on his hand but medical certificate shows that he had received injury on his occipital region of the head, thus this is a material contradiction over the location of injury which cannot be ignored in the circumstances of the case. There are many other contradictions in the statements of  PWs examined by the trial Court.

12.      Wehave considered the submissions of learned counsel forthe appellant submitted through written synopsis, arguments of learned counsel for respondents/accused, learned Additional P.Gand perused the record. From the perusal of judgment passed by the trial Court, it appears that the same is speaking one and does not suffer from any interference by this Court. In these circumstances, the learned trial Courtwas right to record the acquittal of the private respondents by extending themthe benefit of the doubt and such acquittal is not found to have been recorded in an arbitrary or cursory manner, which may call for interference by this Court.  

            “ In case of The State and others vs. Abdul Khaliq and others     (PLD 2011 SC-554), it is held by the Hon’ble Apex Court 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 the heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. 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 in a grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findingsare perverse,arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal 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”.

 

13.   We are fully satisfied with the appraisal of evidence done by the learned trial Court and are of the view that while evaluating the evidence, the difference is to be maintained in an appeal from conviction and acquittal appeal and in the latter case, interference is to be made only when there is a gross misreading of evidence resulting in miscarriage of justice. Learned counsel for the appellant failed to disclose any misreading and non-reading of evidence. In the case of Muhammad Zafar and another v. Rustam and others(2017 SCMR 1639), the Hon’ble Supreme Court of Pakistan has held that:-

“We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents No.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/appellant and learned Additional prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos. 2 to 5 which reasons have not been found by us to be arbitrary, capricious of fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well-settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed”

 

14.           The sequel of the above discussion is that we are satisfied with the appreciation of evidence evaluated by the learned trial Court while recording the acquittal of the respondents/accused persons by extending the benefit of the doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed, along with barred by law of limitation.The listed applications are also dismissed.

 

  

 

                                                 J U D G E

J U D G E

 

Irfan/PA