ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.Acq.Appeal No. D- 121 of 2008.

DATE ORDER WITH SIGNATURE OF JUDGE

For regular hearing.

Date of hearing: 30.3.2010.

Date of order: 30.3.2010.

Appellant present in person.

Mr. Ghulam Shabir Babar, Advocate for respondents.

Syed Meeral Shah, D.P.G.

Through instant Criminal Acquittal Appeal, the appellant has challenged the order dated 28.7.2008 passed by learned Ist Additional Sessions Judge, Shaheed Benazirabad on an application U/s 265-K Cr.P.C filed by the respondents, whereby the learned trial Judge acquitted all the four respondents from the charge.

The brief facts leading to filing of the instant appeal are that initially a report was lodged by Muhammad Hanis Sub-Inspector, Indus Rangers Headquarters Nawabshah on 13.10.2004, alleging therein that on the same date he received information that a dead body of unknown person was lying in the water course near the Check post of Rangers on road from Habib college to Buchery. He went to the spot alongwith one constable Gharib Nawaz and found the dead body lying there. One service book was recovered from the dead body in which name Iqbal Hussain s/o Muhammad Shafi R/o Moulana Sadiq Road, Khudian Khas, Tehsil and District Qasoor was mentioned. The post mortem of dead body was carried out. It is further alleged that one service card of Rangers, one coin and one pipe for taking heroin were also recovered, which showed that the death of deceased Iqbal Hussain might have occurred due to over dose of heroin and the death was declared to be accidental for the aforesaid reasons.

Subsequently, it is alleged that on 8.1.2005 one Muhammad Shafi Joya, the father of deceased lodged the FIR at PS Taluka, alleging therein that he belonged to the said area where the deceased was shown to have been residing, who was Lance-Naik in Pakistan Rangers and posted with 81 Wing Hathungo Indus Rangers District Sanghar. He alleged that they had a dispute over the land with the accused/respondents and such dispute was looked after by his deceased son. He had received information from Pakistan Rangers, Nawabshah to the effect that his son died on account of taking intoxicants. It is further alleged in the FIR that respondents/accused had gone to Nawabshah and administered insecticide to his son due to which his son expired.

It appears that after registration of FIR, the statement of one Irshad Hussain, the brother of deceased was recorded on 22.3.2005, who stated that he ever did not suspect that the accused/respondents were involved as stated in the FIR on the contrary he stated that they had good relations with the accused. It further appears that statements of Mst. Shahnaz and his brother Akhtar Hussain, Parvez Ahmed and Arshad Hussain were also recorded in which they apprehended that deceased was poisoned by the accused.

After hearing the learned counsel for the parties, the learned Ist Additional Sessions Judge, Shaheed Benazirabad, allowed the application u/s 265-K Cr.P.C and acquitted the accused/respondents.

It is contended by appellant that learned trial Court has erred in law, facts and did not examine the evidence on record. He submitted that learned trial Court without recording the evidence of all the witnesses shown in the challan, has acquitted the accused in a heinous offence which carries capital punishment. The appellant further contended that the report of Chemical Examiner was in positive and it cannot be ignored that deceased was poisoned by the present accused/respondents. The appellant further contended that proper investigation in the instant case has not been made by police at the influence of accused persons and there was sufficient material to connect the present accused persons with the commission of offence which has not been brought on record. He lastly contended that present accused are involved in the commission of offence, hence liable to be convicted.

Conversely, learned counsel for respondents contended that the present accused/respondents are innocent and have been falsely implicated in the case in hand by complainant due to admitted enmity over the land and the respondents have nothing to do whatsoever with the alleged offence. He further contended that it appears to be a natural death caused due to intoxication taken by the deceased and the respondents have un-necessarily been dragged in this case. He further contended that it is an un-witnessed incident. The learned counsel for respondents has pointed out that statement of Irshad Hussain who is brother of deceased was recorded by police in which he has categorically stated that accused are not involved in the murder of his brother rather he stated that has has good relations with accused persons. He lastly contended that statements of some respectable persons of locality were also recorded in which too they have not involved the accused in the commission of offence.

The learned D.P.G in view of the facts and circumstances of the case has adopted the arguments advanced by learned counsel for respondents and supported the order of learned trial Court.

We have heard the arguments and perused the record. Perusal of record reflects that incident took place on 13.10.2004 whereas the FIR was lodged by complainant/appellant Shafi Muhammad on 8.1.2005. As per contents of FIR, it further appears that appellant has nominated the respondents in this case on the basis of suspicion on the ground that some dispute over the land is pending between the parties. On perusal of statement of complainant, it appears that he has reiterated the same facts and has shown his suspicion against the accused/respondents. In cross examination, the complainant admitted that he has given up three prosecution witnesses namely Irshad Hussain, Akhtar Hussain and Mst. Shahnaz who are brothers and wife of deceased. It appears that brother of deceased Irshad Hussain got recorded his statement before police on 22.3.2005 wherein he has stated that deceased had good relations with the accused persons and did not suspect the accused persons in commission of the alleged offence. As per statement of I.O, one paper pipe for taking heroin was recovered from the body search of deceased who according to I.O has died due to over doze of heroin. I.O further stated that there was no injury visible on the dead body nor there was any mark of struggle. The statement of Dr. Moula Bux was recorded by the trial Court on 23.8.2007 who has conducted the post mortem of deceased which reflects that there were no injuries or marks of violence on the body of deceased which further reflects that cause of death of deceased is due to insecticide poisoning.

The learned trial Court in addition to taking into consideration the evidence recorded in Court as well as the material available with the prosecution including the statement of about 20 respectable persons of the vicinity including the Taluka Nazim who stated that accused persons were not available at the place of incident when the said incident occurred. It appears that neither the prosecution nor the complainant could produce any incriminating evidence connecting the accused persons with the alleged offence. Further the allegations against the accused persons are entirely based on suspicion whereas no enmity whatsoever with the police has been alleged by complainant. Under the facts and circumstances of the case and evidence and material available on record, it appears that trial Court was justified to exercise the discretion vested in it in terms of Section 265-K Cr.P.C whereby the learned trial Court considered that there was no probability of the accused being convicted in the alleged offence.

In view of hereinabove, we are of the view that impugned order does not suffer from any illegality hence requires no interference. Accordingly the instant Criminal Acquittal Appeal being devoid of merits, is dismissed.

JUDGE

Tufail