JUDGMENT SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No.S-102 of
2021
Date of hearing: 11.01.2022.
Date of Judgment: 11.01.2022.
Appellant: Leehaz
Ali Mangrio through Mr. Noor Muhammad Memon, Advocate
Respondent No.1to9: None present.
Respondent No.11 : Mr.
Shafi Muhammad Mahar, D.P.G.
J U D G M E N T
AMJAD ALI SAHITO, J-. Being aggrieved and dissatisfied with the judgment
dated 12.08.2021,recorded under Section 265-H(i) Cr.P.C. in favour of the respondents
No.1to9by the learned Assistant Sessions Judge, Kandiaro in Sessions Case No.207/2021arising
out of the FIR No.173/2020 for offence under sections 324, 337-A(iv), F(i),
H(ii), 504, 147, 148, 149 PPCregistered at PS Kandiaro, District Naushehro Feorze,
whereby the respondents 1 to 9 were acquitted from the charge.
2. The
case of the prosecution as depicted in the FIR is thaton 18.10.2020 at 1130 hours accused persons shown
in the FIR duly armed with deadly weapons in prosecution of their common object
on the instigation of accused Abdul Aziz Mangrio, accused Hakim Ali fired from
his gun at Safeer which hit on his nose then all accused while raising slogans
went away, ultimately complainant and his witnesses took the injured Safeer and
after getting medical treatment and certificate went to Police Station and
lodged FIR.
3. The charge was framed against respondents/accused
by the trial Court, to which they pleaded not guilty and claimed to be tried.
4. At the trial, in order to establish accusation
against the accused, the prosecution examined complainant Leehaz Ali Mangio , P.Ws Waseem Ali Mangio, HC Muhammad
Khan Jatoi, PW Dr. Sharjeel Asghar Arain, PW Niaz Hussain Tanwari
(Investigating Officer), PW Injured Safeer who produced certain documents,
thereafter learned State counsel closed its side.
5.
Statements of the respondents/accused
were recorded under Section 342 Cr.P.C,
wherein they denied the prosecution allegations leveled
against them. However, neither they examined themselves on oath nor led defense
evidence.
6.
The learned trial Court, after
hearing the learned counsel for the parties and appraisal of the evidence,
acquitted the respondents/accused Aijaz Ali son of Ayaz Ali Mangrio, Noor Nawaz
alias Dil Nawaz son of Ayaz Ali Mangrio, Aziz alias Abdul Aziz son of Muhammad
Mangrio, Abdul Ghani son of Muhammad Sachal Mangrio, Ghaffar alias Abdul
Ghaffar son of Muhammad Sachal Mangrio, Ayaz Ali son of Nawab Mangrio, Ali Hyder
son of Muhammad Raheem Mangrio and Hakim Ali son of Allah Obhayo Mangrio vide
judgment dated 12.08.2021. The acquittal recorded by the learned trial Court
has been impugned by the appellant / complainant before this Court by way of
filing the instant Criminal Acquittal Appeal.
7.
Learned counsel for the appellant
argued that the impugned judgment is based on misreading and non-reading of
evidence, which is not maintainable; that complainant Leehaz Ali, P.Ws Waseem
Ali, Muhammad Khan and injured PW Safeer have implicated all the respondents /
accused for committing the above incident; that the learned trial Court has not
considered all the material points and acquitted the respondents / accused.
Lastly, he prayed that this appeal may be allowed and the respondents / accused
may be convicted in accordance with law.
8. Conversely, the learned D.P.G. while
supporting the impugned judgment argued that respondents are innocent and have
falsely been implicated.
9. I have heard the learned counsel for the appellant/complainant,
learned D.P.G for State and have gone through the evidence as well as impugned
judgment with their able assistance.
10. Learned counsel for the appellant as well as
learned D.P.G haveagreed that the
criteria of interference in the judgment against acquittal, is not the same as
against the cases involving a conviction. The scope
of interference in appeal against acquittal is narrow and limited for the
reasons that 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.
11. The case of prosecution is that on
18.10.2020 complainant along with Safeer and Waseem were coming from city towards
their village on motorcycle, when they reached at village Tharo Khan Kaleri,
where they saw that all accused persons Hakim Ali, Azeez, Naseeb, Ghani,
Haneef, Ali Hyder, Ayaz, Aijaz, Noor Nawaz and Ghaffar were standing there.
They identified and saw accused Hakim
Ali was armed with gun, Aziz armed with Rifle, Naseeb armed with gun, Ghani
armed with gun, Haneef armed with gun, Ali Hyder was armed with a pistol, Ayaz
was armed with pistol, Aijaz was armed with a Rifle, Noor Nawaz was armed with
repeater and Ghaffar was armed with pistol. Accused Azeez instigated other
accused by saying them to kill the complainant party and not to live them
alive. On such commutation, accused Hakim Ali fired at Safeer which hit him on
his nose from his right to left side which cross the limits of nose. Then all
accused while making aerial firing and
raising slogans went away. Then complainant, P.Ws Waseem and Khursheed took the
injured Safeer to Police Station Kandiaro wherefrom they obtained letter for
medico legal treatment and certificate, went to Kandiaro hospital where after
some treatment the injured was referred to Nawabshah Hospital. On 19.10.2020 complainant
Leehaz Ali returned back from hospital and lodged FIR at Police Station
Kandiaro leaving the injured at Nawabshah Hospital for necessary treatment.
12. Medical
Officer Sharjeel Asghar Arain during his evidence recorded before trial Court
has deposed that on 18.10.2020 complainant Leehaz Mangrio brought injured
Safeer Mangrio for treatment and medico legal certificate along with police
letter addressed to him. At aobut 11.50 a.m injured was unconscious. During
examination he found following injuries.
Injury
No.1. entrance wound. An oval shaped penetrating, punctured type of lacerated
wound with slightly burnt e inverted margins situated on left side of nose near
the medial canthus of left eye measuring about 01 cm x 0.7 cm x through and
through on right side of nose.
Injury
No.1(b) Exit wound-. A punctured and lacerated type of wound with entered
margins situated below the tower eyelid of right eye measuring about 04.5 cm x
0.5 cm in continuation of left side nose.
The injured was referred to PMC
Hospital Nawabshah for further management, Radiological opinion and final
Medico Legal Certificate. The nature of injury was kept reserved due to patient
was referred to PMC Hospital Nawab Shah for radiological opinion and
management. Probable duration of injuries was half hour and kind of injury was
shown to be discharge fire arm. Thereafter, injured was referred to PMCH
Nawabshah for further treatment, Two X-ray were obtained form victim which were
communicated to him, then he sent to PMCH Nawab Shah. On 01.01.2021 hje issued
final Medico Legal Certificate on the basis of radiological as well as CT
report and injury was declared as Shujjah munaqqillah and the weapon used was
of fire arm. He deposed that provision certificate was issued on 19.10.2020.
13.
During the evidence PW-5 SIP Niaz
Hussain Tanwari, the Investigating Officer at Exh.12 has deposed that they
obtained three empty shells of cartridges and three empty shells of bullets
from the place of vardat, they also secured one red colour motorcycle from the
place of vardat, such memo was prepared in presence of mashirs at 0800 hours
whereas mashir/witness has deposed that two red empty shell cartridges were
recovered, three empty bullets were also recovered from the place of vardat and
mashir/witness has also deposed in his evidence that Khursheed took the empty
shells of cartridges and bullets to the police. Investigating Officer in his
evidence recorded before trial Court has deposed that police and he collected
empty shells of cartridges and empty shells of bullets. He also produced
original letter dated 06.05.2021 at Exh. 12/E whereby all members of Special
Medical Board were of unanimous opinion that injuries No (1) (a) & (b)
sustained by the injured does not coincide with discharge from fire arm and
possibility of fabrication cannot be ruled out.
14.
I am fully satisfied with appraisal of
evidence done by the learned trial Court and I am of the view that while
evaluating the evidence, the difference is to be maintained in appeal from
conviction and acquittal appeal and in the latter case, interference is to be
made only when there is 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”
15. The sequel of the above discussion is that I
am satisfied with the appreciation of evidence evaluated by the learned trial
Court while recording 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 accordingly.
16. These of reasons of my short order announced
in earlier part of the day whereby the instant acquittal was dismissed.
JUDGE
Irfan/PA