IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Crl.
Acquittal Appeal. No.D- 28 of 2022
Present:-
Mr.
Justice Yousif Ali Sayeed, J.
Mr. Justice Zulfiqar Ali Sangi, J.
Mr. Safdar
Ali Kanasro, Advocate for appellant.
Syed
Sardar Ali Shah, Addl. P.G.
Date of hearing: 26.10.2023.
Date of judgment: 26.10.2023.
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J U D G M E N
T
ZULFIQAR ALI SANGI, J; Through captioned acquittal appeal the
appellant/complainant Ahsan Ali son of Ali Hassan Mari has impugned the
judgment dated 09.05.2022 passed by Additional Sessions Judge-I/ Naushehro
Feroz, in Sessions case No.365/2019 (Re-Himath
Ali and others) culminating from FIR No. 90/2019 for offence punishable u/s
302, 337-A(i) F(i) & 34 PPC, whereby the respondents Himath Ali, Zeeshan
Nawaz Ali, Mir Murtaza and Habib Mazahir @ Habubullah were acquitted by
extending benefit of doubt. Being aggrieved
by the aforesaid judgment of acquittal, appellant filed captioned Criminal
Acquittal Appeal.
2. The crux of prosecution case, as unfolded
in the FIR lodged by the appellant/complainant are that he owns agricultural
land admeasuring 0-8 Ghuntas, situated in Deh Channari besides watercourse adjacent
to the land of Qudoos Moorojo which he used to cultivate since forefathers. Accused/respondents
Himath Ali and his brothers used to ask the complainant that said land belong to
them who were demanding its vacant possession so also restrained not to
cultivate the same otherwise would not better for them. On the fateful day
viz.07.06.2019, complainant, his elder brother Zulfiqar Ali, nephew Waseem
Abbas alias Naseem Abbas and cousin Irshad Ali were irrigating their land. At
about 10.00 a.m, they saw four armed persons, while raising hakal came there. They
identified to be each Himayat Ali armed with repeater, Meer Murtaza Abbas armed
with DBBL gun, Zeeshan Ali, Habib Mazhir @ Habibullah having Dandas, all the
accused challenged to the complainant party that inspite of restraining to them
they have continuing irrigating the lands, as such they will done to death. In
the meanwhile, accused Himayat Ali with intention to commit murder caused butt
blows of repeater to Zulfiqar Ali who while crying fell down, accused Meer
Murtaza caused butt blows of DBBL gun to Irshad on his left arm and right side
of back, accused Zeeshan Mari caused Danda blows to Wassem Abbas @ Naseem Abbas
on right side of lumber region and accused Habib Mazhir @ Habibullah caused
Danda blows to complainant on his both side ribs, to which complainant party raised
cries of murder, then all the accused went away towards their houses. Thereafter,
complainant party saw and found that his brother Zulfiqar Ali was having injury
on his left eye near eyebrow from which blood was oozing and within their sight
dies on the spot. Complainant conveyed such information to police at PP Darya
Khan Mari. Due to hot sun-rays and heat, complainant party shifted the dead
body of deceased at their otaq, where police came and after completing legal
formalities gave letter to injured for medical treatment so also for autopsy of
deceased. After conducting post mortem, complainant received dead body of the
deceased and brought it at his village. After becoming free from burial and
funeral rituals, he appeared at PS Padidan where lodged FIR on 07.06.2019 at
2200 hours.
3. After usual investigation, the Investigation
Officer submitted challan against the accused/respondents before the competent Court
of law. The learned trial Court completed all legal formalities and framed charge
against the accused/respondents, to which they pleaded not guilty and claimed
trial.
4. At the trial, PW-1 Ehsan Ali
(complainant), PW-2 Irshad Ali (injured), PW-3 Naseem Abbas (injured), PW-4
Sohrab (Tapedar), PW-5 Dr. Shoukat Ali (MLO), PW-6 Dr. Aijaz Ahmed (MLO), PW-7 Ghulam
Murtaza (mashir), PW-8 SIP/SHO Mujeeb Rehman(Investigation Officer) PW-8 ASI
Hussain Bux (Author of FIR), PW-9 PC Abdul Rafique (Corpus bearer) and PW-10 Badaruddin
(mashir of recovery) were examined. They produced the relevant documents and
items in support of their students. Thereafter, the side of the prosecution was
closed. The accused/respondents were examined under section 342 Cr.PC, wherein
they denied the allegations leveled against them and pleaded their innocence.
5. Trial court after hearing the learned
counsel for the parties and on assessment of evidence, by judgment dated 09.05.2022
acquitted the accused/respondents as stated above. Hence, this acquittal appeal.
6. Mr.
Safdar Ali Kanasiro, learned advocate for the appellant contended that the
learned trial court has passed the impugned judgment without application of
judicious mind; that the offence is heinous one as the brother of complainant was
brutally murdered by accused by causing butt blow to deceased Zulfiqar Ali;
that the complainant has witnessed the incident is sufficient to convict the
accused. He 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. Lastly he submitted that this
acquittal may be converted into conviction.
7. Conversely,
Syed Sardar Ali Shah, Additional Prosecutor General for the State while controverting the submissions of learned
Counsel for the appellant, supported the impugned judgment and submitted that
the trial Court has rightly appreciated the evidence and passed well reasoned
and speaking judgment, which does not require interference by this Court. He
lastly concluded that the prosecution has failed to prove the guilt of the
respondents to the hilt, as such the trial Court had no option but to acquit
the respondents of the charge, therefore he prayed that instant acquittal
appeal may be dismissed.
8. We
have heard learned counsel for the appellant and the Addl.P.G, for the state
and have gone through the material available on the record with their able
assistance.
9. For
the sake of our satisfaction we have carefully examined the evidence of
prosecution witnesses and the impugned judgment. The trial court also assessed
the evidence and found the same unreliable, untrustworthy and of no confidence.
The trial Court acquitted the accused mainly on the following grounds;
(i)
Delay in
registration of FIR of about 12 hours is fatal to the case and relied the cases
report on 2021 YLR 913, unreported judgment dated 27.08.2019 passed by this
Court in Crl. Acq. Appeal No.D-01 of 2003 Re-Gulab alias Jamaluddin v. Ghulam
Muhammad and others.
(ii)
The
complainant has not produced a single document to show that he was the owner of
disputed land.
(iii)
Complainant
not proved the motive (No date and time of issuing threats for vacating the
land etc.) and relied on the case reported as 2010 SCMR 97.
(iv)
Although
accused were armed with weapons but not made single shot upon complainant party
or even in the air.
(v)
As per
complainant dead body was shifted to the Otaq of his cousin Zaheer for considerable time and Zaheer was not made
witness of the case nor his statement u/ 161 Cr.P.C, was recorded during the
investigation. Even the I.O., did not visit the said Otaq.
(vi)
It is
unbelievable that after alleged incident till postmortem not a single person
from village came to know about the alleged incident which clearly suggests
that witnesses of ocular account were neither present at the place of occurrence
nor had witnessed the alleged incident with their own eyes.
10. As far as the medical evidence is concerned, it is
always considered as supporting corroborative piece of evidence but injuries by
themselves are not sufficient to identify the culprits. Bare perusal of
impugned judgment reveals that Medical Officer in his opinion has categorically
deposed that “death of deceased is presumed natural death”, as such the
ocular evidence is not inspiring confidence, therefore medical evidence is of
no helpful to the prosecution in the present case. The trial Court in its
judgment reiterated that no concrete material was available before Special
Medical Board to declare the opinion of Medical Officer as “Vague”. Under
such circumstances we are of the view that the prosecution has failed to
produce reliable, trustworthy and confidence inspiring evidence before the trial
Court. There were several other 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.It is settled law that the 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). In the case of Muhammad Mansha Kousar v. 4 Muhammad Asghar
and others (2003 SCMR 477) the Supreme Court observed as under:-
“That the law
relating to reappraisal of evidence in appeals against acquittal is stringent
in that the presumption of innocence is doubled and multiplied after a finding
of not guilty recorded by a competent court of law. Such findings cannot be
reversed, upset and disturbed except when the judgment is found to be perverse,
shocking, alarming, artificial and suffering from error of jurisdiction or
misreading, non-reading of evidence… Law requires that a judgment of acquittal
shall not be disturbed even though second opinion may be reasonably possible”.
Similar
view was reiterated by the Supreme Court in the case of Muhammad Tasaweer v. Zulkarnain
and 2 others (PLD 2009 SC 53), in the following words:-
“Needless to
emphasize that when an accused person is acquitted from the charge by a Court
of competent jurisdiction then, double presumption of innocence is attached to
its order, with which the superior courts do not interfere unless the impugned
order is arbitrary, capricious, fanciful and against the record.”
11. For
the foregoing reasons and keeping in view the dictum laid down in the cases
(supra), we do not see any weight in the arguments advanced by learned counsel
for the appellant/complainant and do not find any illegality in the impugned
judgment of acquittal; as such the acquittal appeal is hereby dismissed along
with listed applications.
JUDGE
JUDGE
Ihsan/*