JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

Criminal Acquittal Appeal No.S-139 of 2021

Before:

Mr.JusticeAmjad Ali Sahito.

For hearing of main case.

11.02.2022

Mr. Ali GulAbbassi, Advocate for Appellant.

-.-.-.-.-.-.-.-.-

1. Appellant/Complainant Mst. Fouzia has challenged the Judgment dated 28.10.2021 passed by Judicial Magistrate-II (MTMC) PanoAkil in Criminal Case No.145/2020 arising out of crime No.140/2020 registered at Police Station PanoAqil, through which respondents/accused Nos. 2 to 7 have been acquitted by extending benefit doubt under section 245(i) Cr.P.C.

2. The facts in brief necessary for disposal of instant acquittal appeal are that she is married with Ishtiauqe and out of wedlock she has four children. She was being tortured by her husband for permission on contracting second marriage and on her refusal, her husband was annoyed. On 13.09.2020 at 1015 hours her husband Ishtiaque along with his brothers AmeerAli ,Mehar Ali, Shahanshah alias Mithoo, Javed alias Jani and Ashfaque caused her kicks and fists blows while her husband/accused Ishtiaque caused pistol butt blow to her which she received on her head and other parts of body. She raised cries and she was confined in a room, she on phone narrated such facts to her brother Amir Ali whereafter her brother Amir Ali along with cousin PW Zakari came at her house, opened her door of the room where she was confined. In the meantime accused came and they by abusing them again caused kicks and fist to her and her brother Aamir Ali. Lastly accused Ishtiauqe pointed pistol upon her brother asked him to take away his sister, otherwise she will be killed while returning accused Javed made aerial firing behind them, meanwhile villagers attracted there who rescued them. On the same day complainant went to PS and lodged FIR.

3. After investigation, Investigation Officer submitted the challan and after completion of all the legal formalities the trial court framed the charge against the accused to which they pleaded ‘not guilty’ and claimed to be tried.

4. At the trial, the prosecution examined P.W-1Mst. Fouzia at Exh.3 she produced carbon copy of FIR. PW-2 author of FIR HC Muhammad Jameel was examined at Exh.4. PW-3 Investigating Officer ASI GhulamNabi was examined at Exh.5 who produced memos of injuries, securing clothes of complainant, place of incident and arrest and personal search of accused. PW-4 eye witness Zakariya was examined at Exh.6. PW-5 WMO Dr. Samina was examined at Exh.7 who produced final MC of injured complainant.Thereafter, prosecution closed its side.

5. Trial Court recorded statements of accused under section 342 Cr.PC wherein they denied the prosecution allegations, claimed their false implication in the case.

6. After assessment of evidence learned trial court has passed the above impugned judgment which is assailed before this Court through instant criminal acquittal appeal.

7. Learned counsel for the appellant contended that all the witnesses have fully supported case of prosecution but their evidence was not appreciated by the learned trial court; that there are minor contradictions in the evidence of witnesses and on the basis of minor contradictions, accused were acquitted; that learned trial court has committed illegality while acquitting the respondents and there was huge evidence for conviction of respondents.

8. Learned Additional Prosecutor General on behalf of State supports the impugned judgment.

9. The case of prosecution is that on 13.09.2020 at 1015 hours accused Ishtiaque along with his brothers AmeerAli ,Mehar Ali, Shahanshah alias Mithoo, Javed alias Jani and Ashfaque caused kicks and fists blows to complainant while accused Ishtiaque caused pistol butt blow to complainant which she received on her head and other parts of body. She raised cries and was confined in a room, she on phone narrated such facts to her brother Amir Ali whereafter her brother Amir Ali along with cousin PW Zakari came at her house, opened her door of the room where she was confined. In the meantime accused came and they by abusing them again caused kicks and fist to her and her brother Aamir Ali. Lastly accused Ishtiauqe pointed pistol upon her brother asked him to take away his sister, otherwise she will be killed while returning accused Javed made aerial firing behind them, meanwhile villagers attracted there who rescued the complainant party. On the same day complainant Mst. Fouziawent to PS and lodged FIR.

10. From perusal of record and proceedings it reveals that complainant Mst. Fouzia has disclosed only one seat of injury i.e on her head while for other injuries she stated that she received on her other parts of body but when Dr. Saima Shaikh was examined and she in her cross examination stated that no injury was observed on the body of injured except her face injuries but for the said alleged face injuries as disclosed by Medical Officer, complainant has not disclosed in her FIR or in her examination in chief. Further more, the ocular witnesses,mashir and memo of injuries are not supporting the version of Medical Officer to the extent of face injuries. MLC of injured shows that the injuries sustained by her caused by hard and blunt substance but the Medical Officer has stated in cross examination that injuries Nos. 3, 4 and 5 of inured were caused to her by human fingers. Complainant in her cross examination has admitted the version of accused with regard to their civil dispute with her father over sale and purchase of house. According to the contents of FIR Aamir Ali brother of complainant came to rescue her sister but accused persons caused him kicks and fists blows but in this regard no medical certificate has been obtained or produced in the evidence. The witnesses shown in the FIR are near and related to complainant but no independent witness was cited as witness though incident is shown to have taken place in thickly populated area and the co-villagers gathered at the place of incident at the time of incident.Thus there are many contradictions in the statements of PWs examined by the trial.

11. Ihave considered the above arguments and perused the record. From 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 Court obviously was right to record acquittal of the private respondents by extending them benefit of doubt and such acquittal is not found to have been recorded in 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 criinal 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 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 into 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 findings are 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”.

12. 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”

13. In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed in limine.

J U D G E

Irfan/PA

10. On careful scrutiny of the evidence of complainant and PW Shah Muhammad, who have deposed in their examination in chief that accused persons having TT pistols,opened fires upon deceased Muhammad yousif but surprisingly as per post mortem report only one injury of fire arm has been observed by SMO. Moreover, three empties have been recovered from the place of incident though deceased had received only one fire arm injury. Furthermore incident has allegedly taken place in night time and identification was shown on the light of motorcycle and the identification of accused by the complainant party in the court after the lapse of eight years was doubtful. There was delay of about 08 days in registration of FIR and the same has not been explained properly. As regards to the source of information about the involvement of the accused in the offence,the complainant and PW Shah Muhammad have deposed that they came to know that accusedSobdar, Sono and Rabnawaz have committed the murder of deceased Muhammad Yousif and have not disclosed during their evidence as to how they came to know and who informed them about the involvement of the accused persons. For the extra-judicial confession of the accused persons before the complainant party that accused persons became ready to pay compensation after admitting their guilt but they refused to receive the compensation. However, nowhere PWs have mentioned the date, time and place of extra-judicial confession made by the accused persons which creates very serious doubt and the extra-judicial confession cannot be relied upon without any independent corroboration and the same is weak type of evidence.

11. We have carefully examined the impugned judgment of the trial court and found that the trial court discussed each and every piece of evidence produced by the prosecution in depth.

12. It is well settled principles of law that burden of proving the case is always upon the shoulders of prosecution and prosecution is bound to prove the case beyond shadow of a reasonable doubt, and if a single circumstance creates doubt in the case of prosecution it goes in favour of accused and the benefit of doubt shall be extended to the accused not as a matter of grace but as a matter of right as laid down by Honourable Supreme Court of Pakistan in case of Tariq Pervaiz v. The State (1995 SCMR 1345), Muhammad Akram v. The State (2009 SCMR 230) and in case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639).

13. It is also a settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. Reliance is placed on InayatUllah Butt v. Muhammad Javed etc. (PLD 2003 SC 563), Mst. Anwar Begum v. AkhtarHussain alias Kaka and 2 others (2017 SCMR 1710).

14. In view of above, the impugned judgment seems to be an elaborate, speaking one hence does not suffer from misreading, non-reading or non-appraisal of evidence, and it does not warrant interference of this court.

15. Whatever is stated above, we have reached at the conclusion that the acquittal of respondents does not suffer from any illegality so as to call for our interference with the impugned judgment. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and we see no legal justification to disturb the same in view thereof the instantcriminal acquittal appeal is dismissed in limine.

It is contended by learned counsel for the appellant that the learned trial Court has erroneously acquitted the respondents without appreciating their corroborative evidence andwithout lawful justification on the basis of improper assessment of the evidence, therefore, such acquittal is liable to be examined by this Court by way of instant criminal acquittal appeal.

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.1to9 by the learned Assistant Sessions Judge, Kandiaroin Sessions Case No.207/2021 arising out of the FIR No.173/2020 for offence under sections 324, 337-A(iv), F(i), H(ii), 504, 147, 148, 149 PPC registered at PS Kandiaro, District NaushehroFeorze, 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. SharjeelAsghar Arain, PW NiazHussainTanwari (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 SachalMangrio, Ghaffar alias Abdul Ghaffar son of Muhammad SachalMangrio, Ayaz Ali son of NawabMangrio, Ali Hyder son of Muhammad RaheemMangrio and Hakim Ali son of Allah ObhayoMangrio 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 SharjeelAsghar Arain during his evidence recorded before trial Court has deposed that on 18.10.2020 complainant LeehazMangrio brought injured SafeerMangrio 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 Shujjahmunaqqillah 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 NiazHussainTanwari, 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:-

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

ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Acquittal Appeal.No.S-20 of 2020

Date of hearing

Order with signature of Judge

Djdjdj

Briefly facts of the case that complainant Hamid Mazari got registered F.I.R on 16.11.2009, stating therein that on 09.11.2009, complainant along-with his brother Muhammad Yousif, son Shah Muhammad and maternal nephew Sher Jan came to Guddu city and after finishing their work they proceeded towards their house on bikes. In the meantime at 07:30 pm, they reached near Zahir Peer at northern bank of BS Feeder. Four unknown accused persons on two bikes were standing there, the accused persons shouted upon complainant party to stop and due to fear the complainant party alighted from their bikes. The complainant party on the light of bikes saw that two accused persons were armed with TT pistols, one was armed with K.K and one was with stick. It is alleged that two accused persons opened fires with TT pistols upon Muhammad Yousif who died on spot while complainant party due to empty handed remained silent. It is alleged that then two of the accused persons pointed their TT pistol & K.K upon complainant party to remain silent while two of the accused persons took away the dead body of Muhammad Yousif on their bike towards western side via northern bank of BS Feeder. After half an hour two of the accused persons left complainant party while threatening not to make complaint and they went away on their bike. The complainant party came back to the house, and searched the dead body at own level, as such on 16.11.2009, they found the dead body of deceased from northern bank, the complainant left the PWs over the dead body and went to Ps and got registered the 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 to which they pleaded ‘not guilty’ and claimed to be tried.

4. At the trial, the prosecution examined P.W-1, M.O Dr. Manzoor Ahmed Kalwar, he produced attested copy of post mortem report at Ex.8-A, Insp. Ghulam Mustafa Mirani at Ex.12, he produce carbon copies of memo of place of incident, attested copies of FIR, danistnama, memo of inspection of dead body at Ex.13-A to 13-D, respectively, PW- PC Hatim Ali Chachar was examined at 14, he is corpus bearer and produced carbon copy of receipt of dead body at Ex.14-A, complainant Hamid was examined at Ex.14, he produced his further statement, statement under section 164 Cr.PC at Ex.14-A and 14-B along with attested copy of criminal miscellaneous application and order thereon dated 7.4.2017, PW Shah Muhammad was examined at Ex.15, he produced his further statement under section 161 Cr.PC and statement under section 164 Cr.PC at Ex.15-A and B, respectively, ASI/I.O Faiz Muhammad Gadani was examined at Ex.16, he produced memo of arrest of accused at Ex.16-A, Mr. ShafquatHussainNaich, learned Judicial Magistrate, was examined at Ex.17, he produced application of I.O to record statements under section 164 Cr.PC and statement of PW Sher Jan under section 164 C.PC at Ex.17/A and 17-B, respectively. Thereafter, prosecution closed its side.

5. Trial Court recorded statements of accused under section 342 Cr.PC wherein they denied the prosecution allegations, claimed their false implication in the case. However, accused Sobdardid not opt to record his statement on oath so also did not opt to lead defence evidence to disprove his case. However, accused Sono alias Sonzada and Rabnawaz opted to record their statements on oath, which were recorded at Ex.25 and 26 respectively. However, they also did not lead any evidence in their defence.

6. After assessment of evidence learned trial court has passed the above impugned judgment which is assailed before this Court through instant criminal acquittal appeal.

8. Learned Additional Prosecutor General contended that there are several contradictions in the evidence of the witnesses and learned trial court has rightly appreciated the evidence and passed the acquittal judgment and he fully supported the judgment of trial court and prayed for dismissal of acquittal appeal.

9. We have heard learned counsel for the parties and gone through the material available on the record with their able assistance.

11. We have carefully examined the impugned judgment of the trial court and found that the trial court discussed each and every piece of evidence produced by the prosecution in depth.

These are the reasons of our short order dated:01-12-2020.

JUDGE