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/*