ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Present:
Mr. Justice Shahid Anwar Bajwa &
Mr. Justice Muhammad Ali Mazhar
Cr. Acq. Appeal No. D-25 of 1998.
Fateh Muhammad Kobhar.……………………….Appellant
Sabzal and others…………….….…….…….…..Respondents
Mr. Amanullah G. Malik Advocate for the Appellant.
Mr. Rasool Bakhsh I.Siyal Advocate for the Respondents
No.1, 3 & 4.
Mr. Zulfiqar Ali Jatoi, D.P.G for the State
Date of hearing: 25th January, 2012.
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Muhammad Ali Mazhar J., The appellant has filed this acquittal appeal against the judgment dated 30.5.1998, passed by learned Additional Sessions Judge, Ghotki in Sessions Case No. 74 of 1991 (222 of 1993), arising out of Crime No. 129 of 1990, lodged at Police Station Daharki, under Sections 302, 147 & 148 PPC, whereby respondents No.1 to 4 were acquitted.
2. The brief facts according to prosecution case are that the appellant Fateh Muhammad lodged the above FIR in which he stated that deceased Moula Bux was his cousin. About 11 years back, one Aziz Samejo declared his wife to be Kari with Moula Bux. On the day of incident at Fajar’s prayer time, the appellant, his cousin Sahib Dino and his maternal uncle Soomar came at the house of appellant and they all moved jointly to attend the Khairat of one Meenhon when they reached near the land of Moula Bux at sunrise, they saw accused Aziz, Sabzal, Yakoob, and Jumo came out from the bushes, out of them Aziz was armed with rifle, Yakoob with gun and other accused had lathies in their hands. Accused Aziz abused Moula Bux by saying that he will be murdered. Accused Aziz and Yakoob fired from rifle and gun at Moula Bux which hit him and he fell down and died. The appellant party raised cries and thereafter accused ran away towards northern side.
3. During pendency of this appeal, it was reported that respondent No.2 Jumo alias Jamaluddin has expired, therefore, vide order dated 1.11.2007, proceedings against him were abated.
4. Charge was framed against the accused, to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case examined PWs. Soomar and Sahib Dino. However, after arrest of absconding accused Aziz, charge was amended and prosecution examined PWs. Dr. Zafar Ali and complainant Fateh Muhammad while P.Ws. Soomar and Sahib Dino were again examined. Thereafter, side of the prosecution was closed.
5. The statement of respondents No.1 to 4 were recorded under Section 342 Cr.P.C. The said respondents did not examine themselves on oath nor led any evidence in their defence.
6. PW, Soomar deposed that he knows complainant Fateh Muhammad and also know Moula Bux and PW Sahib Dino. On the day of incident he along with complainant and PW Sahib Dino was going towards Khairat. At sunrise time when reached at the land of Moula Bux he saw accused Aziz and Yakoob duly armed with rifle and gun. All of sudden they came out of the bushes and remaining three accused were at some distance out of them he identified Sabzal duly armed with lathis and two unidentified persons with lathies. Accused Aziz fired upon Moula Bux and accused Yakoob also fired from his gun. The accused Sabzal and two unidentified persons did not come near. After inflicting injuries the accused ran away towards northern side. On cries Ghulam Nabi, Raees, Ali Gul and other villagers came at the place of wardat. In the cross examination he stated that he was at the distance of about 15/20 paces. At the time of raising cries 50 or 70 persons gathered at the place of wardat. He further stated that accused were chased about ½ miles but they made their escape good. He further stated that Sahib Dino and the complainant both are his relatives.
7. PW, Sahib Dino deposed that he knows complainant Fateh Muhammad who is his relative and he also knew deceased Moula Bux who was his brother. Moula Bux deceased was being suspected of having illicit terms with the wife of accused Aziz. He further stated that he along with Fateh Muhammad, PW Ali Gul and deceased Moula Bux so also PW Soomar was going to attend the invitation of Khairat. It was sunrise time all of sudden two persons duly armed with guns came out from bushes who was Aziz and Yakoob along with three other persons armed with lathies, the accused who were armed with guns opened fire upon Moula Bux. In the cross examination he denied the suggestion that he was not present at the place of incident. Her further stated that PW Soomar is son of his mother’s sister. He further denied that he has inimical terms with accused party.
8. PW. Dr. Zaffar Ali deposed that on 11.10.1990 he was Medical Officer at R.H.C Daharki. He received the dead body of Moula Bux and started post mortem at 11:45 a.m. and finished at 12.45 p.m. He found following injuries.
Injury No.1. Lacerated wound 6 cms x 5 cms through and through over posterior aspect of right elbow joint, producing fracture of distal end of right humerus bone and upper and of right radio ulna bone.
Injury No.2. Lacerated wound 10 cm x 8 cm through and through over anterior aspect of upper 1/4th of right forearm.
Injury No.3. Lacerated would 8 cms x 8 cms through and through over left axila.
Injury No.4. Three lacerated wounds each 3 cms x 1 cm through and through over right scapular region about 20 cm apart from each other.
Injury No.5. Lacerated wound 2 cms x 1 cm into muscle deep into over anterior aspect of middle of left leg.
Injury No.6. Lacerated wound 2 cms x 2 cms through and through over lateral aspect of ½ lower 1/3rd of left leg producing fracture of lower and of left fibula and tibia bones.
Injury No.7. Lacerated wound 2 cms x 2 cms through and through over posterior aspect of lower 1/4th of left leg.
The Medical Officer further stated that all the injuries were ante mortem in nature. All the injuries appeared to have been caused by discharge from fire arm such as rifle. He further stated that probable time between death and postmortem is less then 24 hours. However, in the cross examination he stated that the injuries sustained by the deceased were the result of 09 fire shots and all the injuries sustained were result of bullets shots. He further admitted that the injury No.1 was sustained by the deceased from the back side. He further admitted that possible distance from which fires were shot at the deceased may be 20 to 25 ft. He further admitted that probable time between death and post mortem could be 10 to 12 hours.
9. PW, Fateh Muhammad deposed that deceased Moula Bux was his cousin. He further stated that he along with Moula Bux, Soomar and Sahib Dino was going to attend Khairat, all of sudden persons emerged from bushes namely Aziz, Yakoob, Sabzal and Jumo they raised hakals to Moula Bux and stated that he is Karo with the wife of Aziz saying so, they opened fire upon Moula Bux and again accused Aziz holding rifle from which he fired and accused Yakoob armed with gun and other persons having lathis in their hands. Yakoob fired from his rifle which also hit at deceased, thereafter accused ran away towards western side. In the cross examination he stated that PW Sahib Dino is brother of the deceased while Soomar is uncle of deceased and Ali Gul is his brother. In the cross examination, he stated that at the time of incident accused were at the distance of 4/5 paces from deceased. Accused fired upon deceased while coming from his front side. Aziz fired upon the deceased thereafter Yakoob fired upon the deceased. Deceased fallen down on the ground while receiving second fire. He admitted that accused did not fire upon deceased after fallen down. He further stated that he does not know the name of wife of accused Aziz. He further admitted that wife of accused Aziz had died prior to this incident.
10. PW Soomar again appeared and repeated the same statement in his examination-in-chief, however during cross examination again stated that he saw the accused at the distance of 7/8 paces. Deceased first received fire shot by accused Aziz and while fallen on the ground he received fire shot from Yakoob. Similarly the PW Sahib Dino almost repeated the same statement thereafter the prosecution closed the side and recorded statement of accused U/s 342 Cr.P.C.
11. The learned counsel for the appellant argued that there was no delay in lodging of the FIR and the day, time of the incident was properly mentioned along with the name of eyewitnesses but the trial court failed to consider the evidence available on record and acquitted the accused. He further argued that the trial court wrongly observed that the ocular testimony is not trustworthy or credible so far as the medical evidence is concerned the ocular testimony was fully corroborated by the medical evidence. There was strong motive behind the murder of Moula Bux but this important aspect was ignored and over looked by the learned trial court. He further averred that neither the I.O. nor the mashir were examined in the case. The matter could not have been decided without examining the I.O and mashir. The learned counsel further stated that the learned trial court decided the matter in due haste. The prosecution closed the side on 27.5.1998 and the statement of accused was recorded on very next day and the arguments were heard on 29.5.1998 and judgment was announced on 30.05.1998. The learned counsel for the appellant in support of his arguments referred to the case of Muhammad Aslam v State, reported in 1976 P.Cr.L.J 443, which is related to commitment proceedings under Section 208 Cr.P.C, which was subsequently repealed by a Law Reforms Ordinance, 1972 and by virtue of which, Sections 206 to 220 Cr.P.C are no more in force. Even otherwise, the facts of the case law cited above are distinguishable. He next relied upon another Judgment of learned Single Judge of Lahore High Court reported in 1990 P.Cr.L.C 525 Akhter v IIIrd Additional Sessions Judge, Okara, in which the order passed by Magistrate closing the prosecution side was challenged in the revision and the revisional court dismissed the revision application, thereafter, the petitioner assailed both the orders in writ petition. Learned Single Judge observed that the trial court was giving time to summon the witnesses but he failed to effectively utilize its legal powers to procure attendance of witnesses. The order of trial court and revisional court both were quashed by learned Judge with the directions that the Magistrate concerned shall procure the attendance of the remaining two witnesses and then dispose of the case according to law. Again the facts and circumstances of this case are highly distinguishable. Nothing is brought on record to show that when the prosecution closed the side in this case whether the complainant or the State Counsel ever moved any application for summoning the I.O prior or after closing the prosecution side.
12. Conversely, the learned counsel for the respondents No. 1, 3 & 4 argued that during pendency of this appeal the respondent No.2 Jumo expired and appeal against him was abetted vide order dated 01.11.2007. The learned counsel argued that the allegation of firing second shot upon the deceased is against the accused Yakoob who is absconder and his case was kept dormant. The medical evidence contradicts the time of incident stated in the FIR and the other witnesses which creates reasonable doubt. The learned counsel concluded that prosecution failed to prove the guilt of the accused therefore, they were rightly acquitted, so far as the plea that the I.O. or the mashir were not examined, the learned counsel argued that if prosecution failed to produce the evidence the accused cannot be held liable or responsible. In support of the arguments, the learned counsel relied upon the case of Saindad vs. State, reported in 1972 SCMR 74, in which, it was held that medical evidence inconsistent with account of occurrence as given by eye witness. Accused in the circumstances given benefit of doubt and acquitted. He next relied upon the case of Muhammad Khan vs. State, reported in 1999 SCMR 1220, in which, it was held that conviction must be based on an impeachable circumstances and certainty of guilt and any doubt arising in the prosecution case must be resolved in favor of accused. He further referred to the case of Tariq Pervez vs. State, reported in 1995 SCMR 1345, in which, it was held that for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. In another Judgment reported in 1998 SCMR 854 Mst.Shamshad vs. State, it was held that burden to prove its case beyond reasonable doubt is purely rests upon the prosecution, such burden cannot be discharged by weaknesses found in the case of defence. In the case reported in 1980 SCMR 889, Mastan Ali vs. Gulistan, it was held that ocular evidence cannot be accepted to the extent to which it is inconsistent with the medical evidence.
13. The learned DPG for the State did not support the impugned Judgment and he argued that the contradictions if any in the prosecution evidence are minor in nature. He further argued that the ocular testimony fully supported the version of the complainant. It was further averred that the injuries No. 1 to 3 caused by rifle while injuries No.4 to 7 were caused by pellets. He pointed out the evidence of complainant who stated that accused Aziz was holding rifle from which he fired upon deceased. While Yakoob armed with gun and others having lathis in their hands, Yakoob fired from his gun which also hit the deceased. He further argued that though the I.O and mashir were not examined by trial court and prosecution has also closed the side but it is also a fact evidence in this case was recorded and completed in the year 1998 and the Judgment was also passed in the year, 1998, therefore at this stage no useful purpose would be served to remand the case back to the trial court, therefore, he requests that the respondent No.1, 3 and 4 may be convicted by this court. In support of his arguments, the learned DPG referred to 2005 SCMR 1958, Noor Muhammad vs. State, in which, it was held that mere relationship or close association of prosecution witnesses with deceased in absence of established hostility and animosity or any other motive to depose falsely would not be sufficient to hold him to be interested witness and his testimony would not be discarded on such account. We must observe that in this case, hostility and or animosity is floating on the surface which the complainant party himself stated that the motive behind the murder was that the deceased Moula Bux was declared Karo with the wife of accused Samejo eleven years back and this was the motive set by the complainant. He further relied upon 2009 SCMR 471 Qaisar Khan vs. State, in which, it was held that ocular testimony furnished by natural and injured witnesses including the complainant was consistent on material point and was fully supported by medical evidence. The minor contradictions in the evidence were negligible. Again in this case the ocular testimony is not consistent with the medical evidence and the facts and circumstances of the cited case are distinguishable.
14. Heard the Arguments. The whole prosecution case was based on the motive that Aziz raised the allegation against Moula Bux having illicit relations with his wife but it is also fact which has come on record during the evidence that the wife of Aziz expired much earlier to the date of incident. Medical evidence shows seven injuries while the allegations against the respondent Abdul Aziz is that he fired one fire arm injury and there is no allegation against him that he repeated any other fire shot upon the deceased. Complainant said that Accused fired upon deceased while coming from his front side, while medical evidence shows that the injury No.1 was sustained by the deceased from the back side. According to postmortem report injuries sustained by the deceased were the result of 09 fire shots and all the injuries sustained were result of bullets shots. The possible distance from which fires were shot at the deceased may be 20 to 25 fts. while the complainant stated that accused were at the distance of 4/5 paces from deceased and fired upon the deceased while coming from his front side. Postmortem was started at 11:45 a.m. and finished at 12.45 p.m. M.O stated that the probable time between death and post mortem could be 10 to 12 hours, while according to the prosecution case, the incident occurred at the time of morning prayer/sunrise time. The time of incident shown by the prosecution does not match or correspond with the probable time of death shown in the medical evidence. All the aforesaid contradictions and inconsistencies are suffice to hold that the prosecution failed the prove the guilt of answering respondents and they were rightly acquitted by the learned trial court. So far as the plea that prosecution failed to examine the I.O or mashir. The trial continued for a long time but nothing is available on record to show that the complainant ever made any effort or file any application in the trial court either for calling or ensuring the presence or evidence of I.O or mashir but he waited long time for acquittal without making any effort and took this plea in this acquittal appeal with the request to remand the matter back in which the trial was concluded and the judgment was passed in the year 1998.
15. In the Criminal Acquittal Appeal No.D-58 of 2011, (Allah Diwayo versus State), the judgment authored by one of us (Muhammad Ali Mazhar-J), we have discussed the effect of medical evidence and observed that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and medical examination. The medical evidence can never be primary source of evidence for the crime itself but is only corroborative which may confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapons used in the occurrence and it cannot connect the accused with the commission of crime. According to MODI’s Medical Jurisprudence and Toxicology (Twenty-third Edition), Chapter-3 (Medical Evidence and Medical Witness), the medical evidence adduced by the prosecution has great corroborative value. It proves that the injuries could have been caused in the manner alleged and death could have been caused by the injuries, so that the prosecution case being consistent with matters verifiable by medical science, there is no reason why the eyewitnesses should not be believed. The defence can make use of medical evidence to prove that the injuries could not possibly have been caused in the manner alleged or death could not possibly have been caused in manner alleged by the prosecution and if it can do so, it discredits the eyewitnesses. Doctors are experts in their own right and when they examine a person and give opinion, it does not normally mean that their opinion is not correct. In State of Haryana v Ram Singh, it was held that while it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefore it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
16. It is well settled principle that with the acquittal, the presumption of the innocence of the accused becomes double. Unless grounds on which trial court had purported to acquit the accused were not supportable from evidence on record, the court would not interfere or unless the judgment or acquittal is perverse. The appellate courts are loath to interfere unless it is established that misreading of evidence, violation of legal provisions, jurisdictional defects; the acquittal order on the face of it is contradictory. In exercising powers, the appellate court ought to keep in mind the presumption of innocence in favour of the accused which has been reinforced by an order of acquittal recorded by the trial court, the trial court had the benefit of seeing witness in the witness box, the slowness of an appellate court in disturbing a finding of fact arrived at by the trial court, the right of the accused to the benefit of doubt. If true reasonably probably and even balanced views are possible, the appellate court should not disturb the finding of the acquittal recorded by trial Court.
17. In the recent judgment reported in PLD 2010 Supreme Court 632, Azhar Ali versus State. It was held by the honourable supreme court that appellate court should and will always give proper weight and consideration to the views of the Trial Court as to credibility of the witnesses; the presumption of innocence in favour of the accused, a presumption certainly not weakened by his acquittal at the trial; the right of the accused to the benefit of any doubt; and the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witnesses. High Court will not exercise jurisdiction under S.417, Cr.P.C. unless the judgment of Trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. In exercising this jurisdiction High Court is always slow, unless it feels that gross injustice has been done in the administration of criminal justice, due to the incompetency, stupidity or perversity of Trial Court culminating into distorted conclusions. Mere difference of opinion regarding appreciation of evidence is not a good ground for setting aside an acquittal. Test of impossibility. Courts in such like difficult situations have often applied test of "impossibility" by asking question, whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place. Court would not interfere with acquittal merely because on reappraisal of evidence it comes to the conclusion different from that of the court acquitting the accused, provided both the conclusion are reasonably possible. Important test visualized in such cases is that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.
18. The findings of court acquitting the accused must be proved to be perverse, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, false, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises unwarranted in law. Acquitted accused is credited with two advantages, one his innocence at the pre-trial stage and the other earned by him after his acquittal by a court of competent jurisdiction. Law relating to reappraisal of evidence in appeal 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. Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.
19. We are also fortified by the dictum laid down by the honorable Supreme Court supra that in case of inconsistency in the medical evidence with account of occurrence as given by eye witness, the accused in the circumstances given benefit of doubt and acquitted. Conviction must be based on an impeachable circumstances and certainty of guilt and any doubt arising in the prosecution case must be resolved in favor of accused. For giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Burden to prove the case beyond reasonable doubt is purely rests upon the prosecution, such burden cannot be discharged by weaknesses found in the case of defence. Reference can be made to 1972 SCMR 74, 1999 SCMR 1220, 1995 SCMR 1345, 1998 SCMR 854.
20. In the light of what has been discussed hereinabove the judgment impugned did not suffer from any error of law and the conclusion drawn by the trial court is strictly in accordance with law and accordingly no interference is called for. The acquittal appeal being devoid of merit is dismissed.
Sukkur Judge
Dated. 9.5.2012 Judge