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