JUDGMENT
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No.S-73 of 2021
Before:
Mr.
Justice Amjad Ali Sahito.
01. For orders on office objection at Flag ‘A’.
02. For orders on MA No.3724/ 2021
03. For orders on MA No.3725/2021
04. For hearing of main case.
28.03.2022
Mr. Suhail Ahmed Khoso, Advocate for Appellant.
-.-.-.-.-.-.-.-.-
Amjad Ali Sahito, J. Through instant Acquittal
Appeal, appellant/ complainant Abdul Razaque has challenged the judgment dated 29.04.2021
passed by learned IV-Additional Sessions Judge Mirpur Mathelo in Sessions case
No. 360 of 2015 whereby respondents/accused were acquitted, hence this
acquittal appeal has been filed.
2. The facts in brief
necessary for disposal of instant acquittal appeal are that appellant/complainant is
owner of agricultural land bearing Survey No. 22/5 (03-02) and other survey
numbers shown in the criminal complaint, total area (33-19) acres, out of
whom applicant possessed (08-00) acres situated in deh Dil Murad
Gabole, tapo Bheri teghari, Taluka Mirpur Mathelo District Ghotki as per Form
VII-B, entry No.23 dated 16.06.2005 and other survey Nos. 368/1 (0-32) and
others to the extent of 50 paisas share, total admeasuring an area (15-20)
acres situated in deh Dil Murad Gabole, Tapo Bheri Legahri, Taluka Mirpur
Mathelo, District Ghotki, as per Form No. VII-B, entry No.24 dated 20.03.2006.
It was further mentioned in the complaint that on 12.02.2012 at about 04.00 pm,
complainant along with his PWs Imdad Hussain and Talib Hussain were present on
his aforesaid land where accused namely Noor Muhammad, Rahamdeil alias Rindo,
Gohram, Jeewan, Ali Bux, Rano, Sattar all bycaste Gabole residents of village
Azmat Khan Gabole, taluka Mirpur Mathelo, Ghulam Hussain, Nazeer Ahmed,
Mashooque, Himath, Rasheed, all bycaste Gabole, residents of village Kaladi
Gabole, Taluka Mirpur Mathelo, District Ghotki all armed with guns and lathies
came there, they illegally and forcibly trespassed on the land and dispossessed
complainant. Accused persons occupied land of complainant about (08-00 acres
and 07-00 acres) total (15-20) acres since their possession, they enjoying possession
and harvest the rice crop and the complainant have danger to his life and the
accused persons are very dangerous and notorious.
3. In
order to prove the case, complainant was examined at Exh.23 who produced Direct
complaint and some other documents at Exh.23-A to Ex.23-C. Witness No.2 Imdd
Ali at Exh.24, Witness No.3 Mukhtiarkar (Revenue) Nazeer Ahmed at Exh.25.
Witness No.4 SHO Zulifqar Ali Mahar at Exh.26 who produced report at exh.26-A
then counsel for complainant closed the side.
4. Statements of accused
were recorded at Exh. 28 to 34 respectively, wherein wherein they denied the allegations of complainant, claimed their false
implication in the case. However, they neither examined themselves on oath nor
led any evidence in defense.
5. After assessment of evidence learned trial court
has passed the above impugned judgment which is assailed before this Court
through instant criminal acquittal appeal.
6. Learned counsel for the
appellant contended that all the witnesses have fully supported case /version
of complainant 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.
7. Learned Additional
P.G by supporting the impugned Judgment submits that complainant could not prove his case hence the learned trial Court has rightly
passed the Judgment and acquitted the respondents/accused.
8. The case of
complainant as per criminal complaint filed by him is that appellant is owner
of agricultural land bearing Survey No. 22/5 (03-02) and others shown in the
criminal complaint, total area (33-19) acres, out of whom appellant
possessed (08-00) acres situated in deh
Dil Murad Gabole, tapo Bheri teghari, Taluka Mirpur Mathelo District Ghotki as
per Form VII-B, entry No.23 dated 16.06.2005 and other survey Nos. 368/1 (0-32)
and others to the extent of 50 paisas share, total admeasuring an area (15-20)
acres situated in deh Dil Murad Gabole, Tapo Bheri Legahri, Taluka Mirpur
Mathelo, District Ghotki, as per Form No. VII-B, entry No.24 dated 20.03.2006.
It was further mentioned in the complaint that on 12.02.2012 at about 04.00 pm,
complainant along with his PWs Imdad Hussain and Talib Hussain were present on
his aforesaid land where accused namely Noor Muhammad, Rahamdeil alias Rindo,
Gohram, Jeewan, Ali Bux, Rano, Sattar all bycaste Gabole residents of village
Azmat Khan Gabole, taluka Mirpur Mathelo, Ghulam Hussain, Nazeer Ahmed,
Mashooque, Himath, Rasheed, all bycaste Gabole, residents of village Kaladi
Gabole, Taluka Mirpur Mathelo, District Ghotki all armed with guns and lathies
came there, they illegally and forcibly trespassed on the land and dispossessed
complainant. Accused persons occupied land of complainant about (08-00 acres
and 07-00 acres) total (15-20) acres since their possession, they enjoying
possession.
9. From perusal of
record and proceedings it reveals that appellant/complainant Abdul Razaque had
lodged FIR No.27 of 2013 under sections 447, 337-H(2), 147, 148, 504 PPC of
Police Station Khanpur Mahar in respect of same property bearing same survey
numbers against present respondents/accused and others showing date of incident
as 27.03.2013 whereas in the complaint, the complainant had shown that incident
took place on 12.02.2012. In the criminal case based on crime No.27 of 2013,
the accused were acquitted by Civil Judge & J.M I Ghotki vide Judgment
dated 19.02.2016. It further reflects from the record that during cross
evidence complainant has stated that he does not remember that he had lodged
FIR against accused persons with allegations that they occupied his land which
is subject matter of this case.
Appellant/complainant further stated that he does not know that he had
filed criminal complaint during pendency of criminal case which he registered
against accused during pendency of criminal case. Complainant further admitted
in his cross examination that “It is fact that I had moved application
before DIG police and in that application I had given names of 09 persons a accused and the application moved by me to
SSP was against 17 accused persons.” Furthermore, perusal of report of
Mukhtiarkar Revenue Mirpur Mathelo dated 12.08.2015 reveal that land in
question is occupied by only seven persons namely Noor Muhammad, Gohram,
Wazeer, Rano, Ali Bux, Behram and Jiwan whereas in the complaint 12 accused persons
were shown to have occupied the land of complainant. The reports of Mukhtiarkar
and SHO are silent with regard to date of alleged illegal dispossession and
occupation of land by the proposed accused. There are also many contradictions
in the statements of witnesses examined by the trial Court.
10.
I have 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 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 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”.
11. 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”
12. 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:-
“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
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 |
Dd
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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.
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 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.
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.
These are
the reasons of our short order dated:01-12-2020.
JUDGE
JUDGE