IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Before:
Mr. Justice Irshad Ali Shah
Mr. Justice Zulfiqar Ali Sangi
Criminal Acq. Appeal No.D-26 of 2019
Appellant/Complainant: Ghulam Nabi Chahwan
Through Mr. Altaf Hussain Surahiyo, Advocate
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 29.03.2023
Date of decision: 29.03.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:- This acquittal appeal is directed against Judgment dated 06.08.2019 passed by learned I-Additional Sessions Judge (MCTC) Larkana, in Sessions Cases No.182/2013 & 527/2013 (Re. State v. Imdad and two others) emanating from F.I.R No.62/2013 for offence punishable under sections 302, 114 & 34 P.P.C. at Police Station Naudero, whereby he had acquitted the accused/respondents No.1 to 3 of charge by extending them benefit of doubt.
2. The facts in brief for disposal of instant acquittal appeal are that appellant/complainant lodged F.I.R with Police Station Naudero on 04.07.2013 at 0920 hours stating therein that on 03.07.2013 his deceased brother Ghulam Hyder went to his land, where harsh words were exchanged by him with Imdad on over flow of irrigating water in the land, which caused loss to the land, on that accused Imdad issued threats to his brother. On the day of incident his brother Ghulam Hyder and Mohammad Siddique and maternal cousin Qurban were available at hotel of Fazal Kori near Panj-Guli Chowk Naudero for taking tea when at about 2130 hours, they saw and identified on the light of bulbs accused namely Imdad having (Danda), Mohammad Moosa duly armed with T.T pistol and Mashooque coming to them. Accused Mashooque Ali instigated co-accused to take life of his enemy Ghulam Hyder, therefore accused Mashooque and Mohammad Moosa caught hold Ghulam Hyder from his arms and accused Imdad caused Danda blows to him on his head with intention to commit his murder, who after sustaining said blows fell down and the culprits slipped away. They brought Ghulam Hyder in serious condition at Government Hospital Naudero for treatment, there from injured was referred to CMCH Larkana for further treatment. On 04.07.2013 at about 07:00 am, injured Ghulam Hyder succumbed to the injuries and expired. Hence this FIR.
3. On completion of usual investigation the police submitted challan against the accused and charge against them was framed, to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove the case examined as many as nine witnesses, who produced certain documents and items in support of their statements; thereafter prosecution closed its side. The accused were examined in terms of section 342 Cr.P.C. wherein they denied the allegations of prosecution leveled against them and further claimed their false implication in this case due to matrimonial dispute and pleaded their innocence in the case. However, they did not examine themselves on oath as required u/s 340(2) Cr.P.C nor led evidence in their defence.
5. After hearing learned counsel for the respective parties, the trial Court acquitted respondents No.1 to 3 by extending them benefit of doubt vide impugned judgment. Hence, this acquittal appeal.
6. Heard learned counsel for appellant, learned Additional Prosecutor General and gone through the material available on record.
7. Learned counsel for the appellant mainly contended that F.I.R was promptly lodged, therefore, question of false implication of accused does not arise; that the accused persons were nominated in F.I.R with specific role of causing lathi blows to the deceased and version of the complainant was fully established by him and it takes support from evidence of his witnesses; that no any material contradiction appeared in their evidence and they were unanimous on each and every material point. Learned counsel further contended that trial Court has not appreciated the evidence according to principles of evaluating the evidence in criminal cases and has erroneously extended benefit of doubt in favour of accused/ respondents No.1 to 3. He further contended that the prosecution had proved its case beyond the shadow of reasonable doubt and the acquittal of the accused/ respondents has caused miscarriage of justice. He lastly contended that the impugned judgment may be set-aside and the accused/ respondents may be convicted.
8. On the other hand learned Additional Prosecutor General supported the impugned judgment and contended that the learned trial Court has rightly extended benefit of doubt in favour of accused/ respondents No.1 to 3. He further submitted that the impugned judgment is based on the detailed discussion of the evidence produced by the prosecution. He lastly, submitted that acquittal appeal may be dismissed.
9. We have perused the impugned judgment and from its careful perusal and other material, it is found that the contradictions observed by the trial Court have been suitably highlighted in its judgment. The observations of the trial Court on very material point with regard to happening of the alleged incident seems to be proper. The learned trial Court has also properly commented on all aspects of the case. In these circumstances, the learned trial Court has rightly come to a conclusion that the prosecution could not establish the case against the respondents/accused beyond shadow of doubt for the following reasons:
(i) The motive of incident is shrouded in mystery. As per FIR, complainant claimed that his deceased brother had gone to his land in the morning of 03.07.2013, where dispute arose with accused Imdad on the matter of water which came in the land of his brother from the land of accused Imdad, who subsequently shown his annoyance with his brother. But while deposing before this court complainant stated that Imdad met with his brother and issued threats of seepages of water from his land to the land of Imdad. Complainant deposed that his brother disclosed such facts to him at about noon time and at that time he also dialed phone to Muhammad Siddique. P.W. Qurban did not depose a single word in support of such motive, while P.W Muhammad Siddique deposed that due to overflow of water from the land of Imdad, Imdad and others had exchanged (hot words) with my brother. This P.W did not depose that he came to know such facts from his deceased brother or that the accused Imdad had also issued threats to his brother. Complainant party neither reported the matter of threats at PS nor made any complaint before their nek-mard, hence in absence of corroboration, contradictory statements with respect to overflow of water cannot be accepted.
(ii) As per FIR Complainant party was available in front of hotel where accused Mashooque on his appearance instigated co-accused by saying that our enemy Ghulam Hyder is sitting, and by saying so he and Muhammad Moosa caught hold Ghulam Hyder from his both arms while accused Imdad caused Danda blow on his head, and later on ran away from the spot. Complainant narrated such facts in his deposition but he deposed that accused Imdad caused Danda blow on head his hand, while both P.Ws Qurban and Muhammad Siddique deposed that they were sitting in the hotel. P.W Qurban did not support version of holding hands by both accused, nor has he deposed that Danda hit on head or hand of Ghulam Hyder. P.W. Qurban even failed to depose date and month of the incident. As per P.W Muhammad Siddique accused Mashooque issued threats of murder. As per complainant occurrence held in front of hotel, while other two P.Ws deposed inside hotel, complainant & PW Muhammad Siddique deposed two accused caught hold deceased, while PW Qurban did not support it, even part of body not deposed by this P.W.
(iii) Complainant deposed, they all left the house jointly at about 08.50 pm for hotel and hotel is situated less than half km from their house. PW Qurban deposed that he and Ghulam Nabi came at hotel by feet from the house and P.W Muhammad Siddique deposed that they are residing separately at few distances, he does not remember time of leaving the house for hotel, he deposed, first Ghulam Hyder and Ghulam Nabi came at hotel then he and Qurban rushed. PW Qurban deposed they were available in hotel at 09:00 p.m.
(iv) As per complainant accused came from corner of North-western side, while P.W Muhammad Siddique deposed that accused came in hotel through road lead to PS and also road leads from corner of northern and eastern side.
(v) In chief-examination, Complainant deposed that he brought dead body of his brother at Naudero Hospital for conduct of postmortem, where he left P.Ws Muhammad Siddique and Mashooque with dead body and he rushed to PS for FIR, but in his cross examination he deposed that “we brought the dead body at Naudero P.S. I do not remember the time of arrival at Naudero P.S. I alongwith with dead body and said witnesses came at Naudero P.S WHC written the FIR on dictation of SHO. I do not remember the time consumed at P.S. Naudero. After report at P.S then we rushed at Naudero Hospital”, he also deposed that “I handed over the dead body to the doctor for conducting postmortem”. Both P.Ws did not support such improved version of complainant. PW Muhammad Siddique deposed they directly brought the dead body at Naudero hospital.
(vi) I.O visited spot shown to him by complainant, which is situated on metal road, at chowk outside of the hotel, which negated version of both eye-witnesses Qurban and Muhammad Siddique regarding place of occurrence inside of the hotel. However, mashir Ali Hassan did not support claim of site visit in his presence, nor prosecution declared him hostile, while complainant submitted application for giving up 2nd mashir, hence it was given up by prosecution. Complainant in his cross deposed that he was busy in funeral ceremony up to 05:00 p.m, he does not remember time of visit of place of wardat by I.O. Furthermore, mashir only supported memo of dead body. IO has introduced same mashirs in arrest of accused affected on 10.7.2013 so also for recovery of crime weapon i.e. “Danda” on 16.7.2013, but mashir did not support both events and deposed that memos were prepared at PS, hence report of chemical analysis is of no legal consequences.
(vii) It is surprising that three accused came at spot and the two accused caught hold deceased from his both arms, while remaining accused having only danda in his hand even then complainant party did not resist/grapple with accused, such conduct on the part of complainant and P.W Muhammad Siddique being brother of deceased is beyond imagination.
(viii) As per complainant incident took place for 2/3 minutes and 2/3 persons also came there, but IO did not bother to record statement of any other independent person from the locality, more particular waiter or owner of the hotel of Fazul Kori or near by land owners where alleged hot words exchanged between accused Imdad and deceased.
(ix) As per complainant hospital is near to the place of wardat, where the injured remained for one an hour, while as per P.W Muhammad Siddique they consumed 30 minutes in Naudero hospital.
(x) As per complainant no any relative rushed at hospital again deposed that except relatives and P.W none else rushed at hospital.
(xi) As per IO he recorded statements of P.W on 7.7.2013, while P.w Qurban in his cross deposed that after one day police examined him at PS, where one munshi recorded his statement. P.W Muhammad Siddique deposed that after 03 days police examined him u/s-161 Cr.P.C. However, no explanation was furnished by P.Ws regarding their late recording of statements.
(xii) The alleged incident happened at 2130 hours on 3.7.2013, and as per complainant he shifted injured at Naudero Hospital, wherefrom the injured was referred at CMC Hospital Larkana and on next day morning injured succumbed to injuries at 7am but FIR was lodged at 0920 hours on 4.7.2013. No plausible explanation for delay in FIR is shown, as complainant could have lodged FIR after shifting of injured at Naudero Hospital as Police station was in the way OR at the most same could have been lodged after lodging the injured with CMC hospital but the FIR was lodged with delay of twelve hours, which in view of contradictory evidence of P.Ws appears to be outcome of consultation and deliberation.
(xiii) P.W Muhammad Siddique deposed that after postmortem they received dead body in same cloths but same were torn, while PC-Sikander deposed that he handed over last worn cloths to IO.
(xiv) As per complainant injured died at 7am while as per doctor postmortem was completed at 1.30pm, meaning thereby that postmortem was completed within 7 hours, while as per postmortem report it show time of death twelve hours before postmortem, hence medical is in contradiction with ocular account.
(xv) Tapedar did not show presence of P.Ws nor he showed separate presence of all accused in the sketch.
22. Ocular account furnished by P.Ws and complainant are contradictory, if the version of complainant is to be believed, that would negate the version of other witnesses of ocular account in respect of place of occurrence, if the version of eye-witnesses is to be believed that would mean that the complainant is dishonest. In either case, the casualty is of their credibility. Furthermore, as per complainant he brought dead body at PS, where his FIR was lodged by WHC thereafter, he brought dead body at Naudero hospital. It appears that Witnesses have deposed with improvements and exaggerated the story, hence their testimony, cannot be said one of trustworthy. Prosecution also miserably failed to produce corroboratory circumstantial evidence circumstantial. The medical evidence as discussed above did not show any injury on hand, while complainant deposed for hand injury, hence it is contradictory with testimony of complainant, what to say of providing corroboration to so called ocular account. There is also lack of strong corroboratory circumstantial evidence as discussed above and not only has this, but prosecution also miserably failed to establish motive through concrete material of worth reliance, which is lacking in this case, further more neither IO has recorded statements of nearby shopkeepers, owner/waiter of the hotel.”
10. We have heard the learned counsel for appellant at great length and called upon him to satisfy about any infirmity in the impugned judgment. However, he could not show any substance and has not been able to point out any material piece of evidence or any other crucial point or any misreading or non-reading of any material evidence, which has not been considered or discussed by the learned trial Court in the impugned judgment. As such, no case has been made out against respondents/ accused for interference in their acquittal.
11. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Honourable Supreme Court in case of State Versus Abdul Khaliq and others (PLD 2011 SC-554), wherein the Hon’ble Supreme Court has held as under:-
From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.
12. The upshot of above discussion is that, the impugned judgment is well founded and well-reasoned, based on proper appraisal of the evidence thus it calls for no interference by this Court. Even otherwise, it is re-iterated that the acquittal recorded by the Court of competent jurisdiction, would not be disturbed until and unless misreading or non-reading of the evidence resulting into miscarriage of justice is found, which has not been noticed. Consequently, there seems to be no substance in the present acquittal appeal, it is accordingly dismissed.
JUDGE
JUDGE