IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Acquittal Appeal. No.D- 148 of 2019
Crl. Acquittal Appeal. No.D- 214
Mr. Justice Naimatullah Phulpoto, J.
Justice Abdul Mobeen Lakho, J.
Date of hearing: 26.10.2022
Date of judgment: 26.10.2022
Mr. Iftikhar Ali Arain
Advocate for appellant/complainant.
Mr. Nusrat Ali Memon
Advocate for respondent No.2&3 in Crl. Acq. Appeal No.D-148 of 2019.
Syed Sardar Ali Shah, Addl.
Prosecutor General Sindh.
J U D G M E N T
ABDUL MOBEEN LAKHO, J: Through captioned acquittal appeals the
appellant/complainant Muhammad Nadeem Malik has impugned the judgment dated 02.08.2019
and order dated 21.10.2019 passed by learned Ist Additional Sessions Judge/Model
Criminal Trial Court, Naushehro Feroze, in Sessions case No.282/2014 (Re-Fayaz Hussain Charan and others) arising
out of Crime No.10/2014 Police Station, Halani for offence punishable u/s 302,
337H(ii), L(ii), 34 PPC, whereby the respondents Sikandar, Atta Muhammad and Fayaz Hussain were acquitted by extending
benefit of doubt. Being aggrieved by the
aforesaid judgment and order of acquittal, appellant filed captioned Criminal
2. The crux prosecution case, as unfolded in
the FIR, lodged by complainant Muhammad Nadeem son of Muhammad Ibrahim Malik,
is that he serving in Ranipur Sugar Mill while deceased Shoukat Ali son of
Mushtaque Ahmed Malik being his nephew, aged about 30/32 years owning a welding
shop at Behlani was also working as Field Officer in Syngenta Pesticide Company.
It is alleged that on 22.01.2014 complainant while returning from Ranipur called
Shoukat Ali on his Cell phone to inform him that Ghulam Murtaza and Saleem
Ahmed are waiting to accompany him for proceeding to their village. At about
6:30 p.m, complainant reached at Halani where they were taking tea. During
conversation Shoukat Ali informed complainant that his amount is outstanding
against Fayaz Charan and his friends who on his demands are issuing threats of
dire-consequences. After having tea they all proceeded towards their village on
motorcycles. Shoukat Ali being ahead from complainant, when at about 7:00 p.m.
they reached near Banana Garden four persons standing on the road with opened
faces, three of them were armed with weapons while fourth one with a club
“Danda”, out of them one identified as Fayyaz Hussain son of Muhammad Saffar
Charan armed with pistol and three unidentified persons, two were armed with
pistols while one had a club “Danda” who used it to inflict injury, to Shoukat
Malik and Ghulam Murtaza who were on motorcycle, upon receiving such inquiry they
fell down on the ground. Accused Fayaz Charan pointed out Shoukat to other
accused persons, the persons who armed with pistols made fires at Shoukat Ali
which hit him and threatening complainant party not to come near to them and
while making aerial firing ran away in the Banana Garden. Complainant party
found Shoukat sustained firearm injuries on left side of his face, left side of
neck and left side of clavicle bone and he went unconscious. Ghulam Murtaza
also sustained club “Danda” blows. Complainant
then shifted Shoukat Ali
and Ghulam Murtaza
to Halani hospital where Shoukat
Ali succumbed to his
injuries and died. After getting free from postmortem
and burial rite, complainant lodged FIR. After usual investigation challan was
submitted against the accused under the above referred sections.
court framed charge against the respondents/accused at Ex.2. Accused pleaded
not guilty and claimed to be tried.
4. In order to prove it’s case, prosecution
examined in all 08 witnesses. Thereafter, prosecution side was closed.
5. Statements of respondents/accused were recorded
u/s 342 Cr.P.C in which they claimed false implication in this case and denied
the prosecution allegations. Accused neither examined themselves on Oath nor
they led any evidence in their defence in disproof of the prosecution
6. Trial court after hearing the learned
counsel for the parties and on assessment of evidence, by judgment dated 02.08.2019
acquitted the accused/respondents as stated above. Hence, this appeal.
Iftikhar Ali Arain, learned advocate for the appellant contended that the
learned trial court has passed the impugned judgment without application of
judicial mind. He further contended that ocular account was fully supported by medical
evidence. He further contended that the trial Court did not appreciate the
evidence according to the settled principles of law. He also submitted that
this acquittal may be converted into conviction.
the other hand, Mr. Nusrat Hussain Memon, learned Advocate for the respondents
No.2&3 as well as Syed Sardar Ali Shah Additional Prosecutor General for
the State argued that unnatural death of deceased has been fully established by
Medical Officer in his evidence and postmortem report as well as ocular
evidence has also been fully established and even mere relationship of witnesses
is not sufficient to discard their evidence unless it is established through
reliable evidence that they had motive to falsely implicate the
accused/respondents. They have argued that the judgment of acquittal is based
upon sound reasons.
hearing the learned counsel for the parties, we have perused the judgment of
trial court. The relevant portion is reproduced hereunder:-
In view of the findings arrived at
forgoing point, I have reached to the conclusion that ocular & medical
evidence brought on record suffers from infirmities, material irregularities,
major contradictions and is not confidence inspiring. The prosecution has miserably
failed to prove its case against present accused, therefore, extending benefit
of doubt, accused Sikandar and Atta Muhammad are acquitted of charge under
Section 265-H(i) Cr.P.C. They are present on bail, their bail bonds stand
cancelled and sureties are discharged. The case against proclaimed offender
Fayyaz Hussain Charan is hereby kept on dormant file till his arrest.”
have carefully perused the prosecution evidence and impugned judgment passed by
the trial Court dated 02.08.2019. We have come to the conclusion that the trial
court rightly acquitted the accused/respondents for the reasons that neither
names of respondents are mentioned in the FIR nor their features have been
given and they were introduced by complainant and PWs in their further
statements recorded on 25.02.2014 without disclosing the source of information.
This improvement clearly shows that supplementary statement was made after due
consultation and deliberation to falsely involve the accused. In case of Muhammad
Rafique and others v. The State and others (2010 SCMR 385), the
Honourable Supreme Court has held that “Improvement
made by complainant had created serious doubt about his veracity and
credibility. Complainant had made his supplementary statement after due consultation
and deliberation to falsely involved the accused. Other eye witnesses had also
improved their statements in Court on various material points”. In this
case the complainant has also lodged FIR with consultation and due deliberation
and the names of accused/respondents do not transpire hence, the credibility of
further statement of complainant in this case does not arise at all. To sustain
conviction in an offence of capital punishment evidence of unimpeachable nature
was required which was not available in this case. Prosecution failed to
produce reliable evidence before trial Court. Trial court for sound reasons
disbelieved prosecution evidence. There were several circumstances in the case
which had created reasonable doubt in the prosecution case. In the cases of
circumstantial evidence strong evidence is required for convicting the accused,
which is lacking in this case. Even complainant party has failed to prove
sinister motive against accused/respondents to strengthen his case.
appreciation of evidence in the case of appeal against conviction and appeal
against acquittal are entirely different as held in the case of Ghous
Bux v. Saleem and 3 others (2017 P.Cr.L.J 836).
of acquittal should not be interjected until findings are perverse, arbitrary,
foolish, artificial, speculative and ridiculous. The scope of interference in
appeal against acquittal is narrow and limited because in an acquittal the
presumption of innocence is significantly added to the cordinal rule of
criminal jurisprudence as the accused shall be presumed to be innocent until
proved guilty. In other words, the presumption of innocence is doubled as held
by the Honourable Supreme Court of Pakistan in the case of The State and others v. Abdul
Khaliq and others (PLD 2011 Supreme Court 554).
13. It is
well settled that High Court can only interfere in an appeal against acquittal
if the view of learned trial judge is either manifestly perverse on facts or
vitiated in law. If the view taken by the trial judge can reasonable be said to
be arrived at, this court does not substitute it with its own view as held in
the case of The State v. Abdul Khalique and others (PLD 2011 Supreme Court 554).
Moreover, principles for appreciation of evidence in appeal against acquittal
are different from the appeal against conviction.
far as the case of accused/respondent Fayaz Hussain is concerned, he at the
time of pronouncement of judgment dated 02.08.2019 remained absconder and his
case was kept on dormant file, later on he joined the trial. During proceedings,
he filed an application under Section 265-K Cr.P.C which was allowed by learned
trial Court vide order dated 21.10.2019 and he was acquitted of the charge on
the ground that co-accused Sikandar and Atta Muhammad had faced full-fledged
trial have already been acquitted vide judgment referred to above and there is
no tangible evidence or concrete material available on record from which guilt
of accused Fayaz Hussain could be deduced and charge against him was groundless
and even if case against him is proceeded, it will not entail into conviction
rather sheer wastage of time.
the above stated reasons, there is no merit in both the appeals against
acquittal of the respondents/accused. Acquittal recorded by trial Court in
favour of respondents/accused named above in impugned judgment dated 02.08.2019
and Order dated 21.10.2019 are based upon sound reasons, which require no
interference. As such, the appeals against acquittal being without merits was
dismissed by our short order dated 26.10.2022 and these are the reasons
J U D G E
J U D G E