IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Acquittal Appeal No.D- 149 of 2019

Present:-

Mr. JusticeYousif Ali Sayeed, J.

Mr. Justice Zulfiqar Ali Sangi, J.

Mr. Irfan Ahmed Balouch, Advocate for appellant.

Mr. Khaliq-ur-Rehman, Advocate for respondents 1&2.

Syed Sardar Ali Shah, Addl.P.G.

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Date of hearing: 26.10.2023

Date of judgment: 26.10.2023

J U D G M E N T

ZULFIQAR ALI SANGI, J; Through captioned acquittal appeal the appellant/complainant Muhammad Sachal Rajper has impugned the judgment dated 19.08.2019 passed by Additional Sessions Judge, Mirwah in Sessions case No.428/2012 (Re-Bakhat and others) culminating from Crime No.08/2012 for offence punishable u/s 302, 395, 337F(6), 337H(2) PPC, whereby the respondents Bakhat Ali, Illahi Bux, Ghulam Abbas @ Jajoo and Rasheed 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 are that on 23.01.2012 complainant Muhammad Sachal lodged FIR at Police Station Setharja, alleging that he owns shops at Sui Gas stop, which are being looked-after by him. As usual complainant alongwith his brothers Munawar Ali and Ali Abbas left house for shop on motorcycle. The motorcycle was being driven by Ali Akber, PW Mehboob Ali and complainant on another motorcycle left while complainant was driving the motorcycle. When complainant party on two motorcycles reached at Ali Bahar wah they saw on the top of it, six persons armed with two motorcycles parked there at 7;30 a.m, the accused persons with intention to commit robbery pointed their weapons towards Ali Akber and asked him to stop. Due to fear of weapons, motorcycle was stopped then accused persons made an attempt to rob motorcycle on which Munawar Ali resisted, the complainant was at some distance at motorcycle and identified accused Ghulam Dastagir with K.Kov, Suhbat with K.Kov, Bakhat Ali with repeater, Illahi Bux with pistol and two unknown persons with K.Kovs are also available there. Accused Sohbat alias Porho with K.Kov fired upon Munawar Ali with intention to murder, which hit Munawar Ali. Accused Ghulam Dastagir caused butt blows of K. Kov, on leg of brother of Ali Akber, who fell down. The remaining accused made aerial firing to cause harassment. On cries of complainant party and fire reports many persons came by raising hakals. Accused persons on their two motorcycles so also on the motorcycle of Munawar Ali went away. The complainant party saw that Munawar Ali died. Thereafter, complainant appeared at Police Station and got registered present FIR.

3. After usual investigation, Police submitted final report. Charge against accused was framed by the trial Court to which they pleaded not guilty and claimed to be tried.

4. To prove the charge prosecution examined PW-1 Complainant Muhammad Sachal who produced FIR, PW-2 Ali Akber. PW Mehboob Ali, PW Khan Muhammad, who produced memo of Inspecting injuries, memo of inspecting place of incident, Danishnam, memo of recovery of cloths, memo of arrest of accused, PW-Fida Hussain, PW Sain dad, PW/Tapadar Abid Karim who produced sketch, PW/ASI Ashique Ali, PW/SIP Ghulam Hussain, PW Dr. Mushtaque Ahmed, who produced postmortem. Thereafter, learned ADPP closed the prosecution side.

5. Statements of respondents/accused were recorded in terms of section 342 Cr.P.C, wherein they claimed their false implication in this case and denied the prosecution allegations. They neither examined themselves on Oath nor led any evidence in their defence in disproof of the prosecution allegations.

6. Trial court after hearing the learned counsel for the parties and on assessment of evidence, by judgment dated 19.08.2023 acquitted the accused/respondents as stated above. Hence, this appeal.

7. Mr. Irfan Ahmed Balouch, 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, namely, Munawar Ali during robbery of motorcycle was murdered by accused by causing fire arm injuries; that the complainant has witnessed the incident and his evidence 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, therefore, this acquittal may be allowed and the respondent may be convicted.

8. Conversely, Syed Sardar Ali Shah, Additional Prosecutor General for the State assisted by Mr. Khaliq-ur-Rehman, counsel for respondents 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 they prayed that instant acquittal appeal may be dismissed.

9. 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. As per FIR and evidence of complainant recorded by the trial Court the allegation of causing firearm injury to the deceased Munawar Ali was upon accused Sohbat alias Porhu and for causing injury to injured Ali Akber was upon the accused Ghulam Dastagir, both the accused are not the respondents in the present Acquittal appeal nor were tried before the trial Court. So far the evidence against the respondents the trial Court while discussing the same in para-12 to 15 has acquitted them. Para No.12 to 15 are re-produced as under;

12. Coming to the evidence of present case, I must start from the version of complainant who is Muhammad Sachal and as per contents of the FIR and charge against the accused persons they committed offence as “on 23.01.2012 at 0730 hours at the top of Ali Bahar wah/minor near land of Ghulam Mustafa Rajper above named accused alongwith absconding accused Ghulam Dastagir and Sohbat on show of weapons committed robbery of one applied motorcycle CD-70 Model 2011, from complainant and during course of committing robbery knowingly and intentionally committed Qat-e-Amd of deceased Munawar Ali, brother of complainant by causing him fire arm injury, caused injuries to PW Ali Akber, brother of complainant and so also made aerial firing in order to create harassment upon complainant party” the first part of the allegations regarding snatching the bike no evidence is brought on record, more particularly initially the complainant deposed that accused were trying to snatch bike from him, which was subsequently changed and was relating to the deceased Munawar Ali. Complainant further deposed that accused persons caused injuries to Akber but no evidence is available on record to show about injury allegedly caused to Akber.

From bare reading of the evidence complainant allegedly four offences against accused persons committing dacoity of bike, killing Munawar Ali, causing injury to Akber and making aerial firing but from deep scrutiny of the evidence I could not any evidence regarding bike so robbed, it’s documents or other relevant evidence of such bike, no evidence of sustaining injury by Akber, not a single word is deposed about aerial firing by the accused before this Court, which clearly shows that 75% deposition of complainant is unbelievable.

Like the other alleged eye witnesses especially Akber who was allegedly injured during incident has been failed to produce any medical evidence showing injuries caused to him, in such circumstances his appearance at the spot is doubtful. It is also matter of record that from the first point of happening of incident the conduct of the complainant side appears doubtful, as complainant and other alleged eye witnesses are not consistent on the material particulars of the incident i.e. time, manner, role of accused persons, there identification even otherwise the role of investigation officers remained dubious.

13. Now very important witnesses of the case are both IOs, they submitted that from first day of incident no witness was examined till recording of further statement of the complainant under Section 162 Cr.P.C, no witness from locality was examined, no arrival departure entries produced, no evidence regarding motive of offence collected, incident is not cross verified, even enmity alleged by the accused persons is not verified. Besides that this I.O., was very much aware that motive of incident is dacoity but he did not verify the version of complainant, which clearly shows that the I.O, has only brought the material which he was wishing and it makes the question mark upon admissibility of his evidence.

14. From bare reading of the examination-in-chief of I.O, and during cross examination, I am unable to see any arrival or departure entry regarding conducting investigation by these witness, which shows or corroborates their version of these witness that whn they left P.S for hospital, when they returned back, when they left P.S for place of incident, when they returned to PS, what formalities were conducted by them, when witnesses were examined u/s 161 Cr.P.C, which clearly compel me to hold that whatever the proceedings were done by the I.Os, were done at P.S because no evidence brought on record which shows that I.Os, had ever left P.S for conducting investigation of the case.

15. Now I must conclude my discussion and say that oral version of prosecution is no corroborated by medical version brought on record as well as other circumstantial material brought on record because nothing recovered from the accused persons, which incriminate them for committing offence. Motive has not been proved, in such circumstances, I cannot hold that charge in heinous crime of dacoity coupled with murder and attempt to murder said to have proved on assumptions and surmises”.

10. 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. 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 ManshaKousar 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/*