2020 PLP 15 (YLRN)

ABDUL MAALIK GADDI, J.

By this common judgment, we intend to dispose of the above-cited criminal acquittal appeals, as they arise out of the same incident, involving common question of law and facts as well as the impugned judgments having been delivered by the same trial Court viz. Sessions Judge, Hyderabad.

2. Through the captioned criminal acquittal appeals, the appellant named above has assailed the legality and propriety of the judgments dated 23.04.2015 and 26.07.2017, passed by the learned Sessions Judge, Hyderabad in Sessions Case No.131 of 2013 (re: (1) The State v. Zaheer Ahmed and others and (2) The State v. Azharuddin) arising out of Crime No.77/2012 of Police Station Phuleli Hyderabad, under section 302 read with section 34, P.P.C., whereby the learned trial Court after full dressed trial, acquitted the private respondents by giving them benefit of doubt.

3. Briefly, facts of the prosecution case are that PW-2 complainant Nazeer Ahmed Abro (Ex.5) on 17.09.2012 at 2200 hours lodged FIR (Ex. 5/A) alleging therein that he is ASI in Police Department and maintained Hidayatullah son of Rasool Bux, aged about 18/19 years, who is son of his wife from first husband and is residing with him. On 17.09.2012, at about 1100 hours Hidayatullah along with his brother-in-law Dodo Khan proceeded on motorcycle from house to Market for taking articles. At about 1130 hours, complainant received a phone call from Dodo Khan, who disclosed that he and Hidayatullah were proceeding on motorcycle towards Fakir Ka Pir and Hidayatullah was driving the motorcycle. when they reached near Speed Breaker of Pakistani Chowk, Afandi Town at 1120 hours, where four persons Azhar Pirzado (accused), Zaheer Pirzado, Shaman and Hassan Pirzado came on two motorcycles; out of whom, accused Azhar Pirzado and Zaheer Pirzado having pistols brought their motorcycle on right side of their motorcycle and both the accused made 4/5 straight fire shots with intention to kill Hidayatullah, and in result thereof Hidayatullah received one bullet injury over his chest and they both fell down . However, accused escaped away towards Pinjra Pole. He further informed to complainant that he is going in rickshaw taking injured Hidayatullah to Civil Hospital and complainant was also asked to reach at hospital. On such intimation of Dodo Khan, complainant informed the police on phone and went at Civil Hospital, where police staff of Police Station Phuleli also reached and the doctors informed that due to bullet injury. Hidayatullah has been expired. The dead body was then handed over to complainant after postmortem and completion of legal formalities by police. The complainant after funereal ceremony came at Police station and lodged FIR that accused Azhar and Zaheer Pirzado in collusion with above accused, made direct fires with pistol and in result his step son Hidayatullah is murdered.

4. Perusal of the record shows that in the first episode, after conclusion of the investigation, challan in the aforesaid FIR was submitted before the concerned Court showing accused Azhar, Shamsuddin and Hassan as absconders while accused Zaheer Ahmed in custody. Subsequently, accused Shamsuddin and Hassan joined the trial, whereas accused Azharuddin was declared as proclaimed offender and the trial Court proceeded with the trial of the case and after hearing the learned parties' counsel acquitted the private respondents Zaheer Ahmed and others vide impugned judgment dated 23.04.2015 (Criminal Acquittal Appeal No.D-09/2015). Thereafter, accused Azharuddin surrendered himself before the learned trial Court and after conducting full-fledged trial, the learned trial Court acquitted him vide impugned judgment dated 26.07.2017 (Criminal Acquittal Appeal No.D-26/2017),

5. It also appears from the record that at trial, charge against the accused/ private respondents was framed at Ex.4, to which they pleaded not guilty and claimed trial by their respective pleas. Thereafter, prosecution in order to prove its case examined complainant Nazeer Ahmed as PW-1 ( Ex.5) who produced the copy of FIR at Ex. 5/A. PW-2 Dodo Khan eye-witness was examined at Ex.6, who produced memo of recovery of clothes of deceased Hidayatullah at Ex.6/A, mashirnama of inspection of dead body of deceased at Ex.6/B. mashirnama of injuries on the person of deceased at Ex.6/C, Danistnama at Ex.6/D, mashirnama of inspection of place of incident at Ex.6/E, Photographs of deceased Hidayatullah at Ex. 6/F. He also produced his 164, Cr.P.C. statement at Ex. 6/G; PW-3 Bashir Ahmed was examined at Ex.7. PW-4 SIP Muhammad Saleem investigating officer was examined at Ex.8. He has placed on record letter issued to MLO at Ex.8/A, entry No.17 regarding information about happening of the incident at Ex. 8/B, Lash Chakas Form at Ex.8/C, departure and arrival entries at Ex.8/D, entry No.34 in respect of lodgment of FIR at Ex.8/E, mashirnama of arrest of accused Zaheer at Ex. 8/F, arrival and departure entries dated 04.10.2012 at Ex.8/G; PW-5 Dr. Baldev, who conducted post-mortem examination over the dead body of deceased Hidayatullah was examined at Ex.9, who produced postmortem report at Ex.9/A. PW-6 DSP Shakeel Ahmed another investigating officer was examined at Ex.10, who produced further statement of complainant at Exs.10/A and 10/B respectively, arrival and departure entries at Exs. 10/C. 10/D, order of SSP entrusting him investigation of present crime at Ex.10/E, letter issued to Mukhtiarkar for preparing Site sketch at Ex.10/F sketch of place of incident at Ex.10/G; PW-7 Tapedar Syed Sikandar Ali was examined at Ex.11 and he produced the sketch at Ex.11/A; PW-8 HC Ishaque, mashir of arrest of accused Zaheer and recovery of crime weapon examined at Ex.12. Thereafter, vide statement at Ex.14, leaned DDPP placed on record the Chemical Report. Then learned DDPP vide his statement at Ex. 13, closed the side of the prosecution.

6. After closing of prosecution side, the statements of accused Zaheer Ahmed was recorded at Ex.16, while statement of accused Shamsuddin was recorded at Ex.17 whereas statement of accused Muhammad Hassan was recorded at Ex.18. All the accused denied the allegations levelled against them by prosecution. Accused Zaheer further stated that he want to examine himself on oath as required under section 340(2), Cr.P.C. and also lead the evidence of DSP Muhammad Ayoob Durrani in his defence. Thereafter, accused Zaheer Ahmed examined himself on oath at Ex.20 and produced Photostat copies of Ballistic Expert report at Ex. 20/A, FIR under Crime No. 64/2011 lodged by co-accused Shamsuddin for offences under Sections 324, 34, P.P.C. at Ex. 20/B, application for reinvestigation of the case at Ex.20/C letter of Honourable Supreme Court of Pakistan at Ex.20/D, letter of SSP Hyderabad at Ex.20/E letter to lncharge CIC Hyderabad at Ex.20/F, Roznamcha entries at Ex.20/G, six statements recorded under section 162, Cr.P.C. at Ex. 20/H, letter for releasing accused under section 497, Cr.P.C. at Ex.20/I. Vide application under section 510, Cr.P.C. the learned DDPP has placed on record the FSL report at Ex.

21. DW-1 Ayoob Durrani is examined at Ex.

22. He produced letter of President Hyderabad Chamber of Commerce and Industry at Ex.22/A, letter of Incharge Crime Intelligence Cell, Hyderabad at Ex. 22/B. Vide statement at Ex.23, learned counsel for accused Zaheer closed his side.

7. Thereafter, the learned trial Court vide judgment dated 10.04.2015, acquitted the accused Zaheer Ahmed, Shamsuddin and Muhammad Hassan under section 265-H(1), Cr.P.C. while the case against absconding accused Azharuddin was kept on dormant file.

8. Thereafter, accused Azharuddin surrendered himself before the leaned trial Court for bail before arrest which was declined and he was taken into custody. After supplying copies as required under Section 265-C, Cr.P.C. at Ex.1, a formal charge was framed against accused Azharuddin at Ex.2, to which he pleaded not guilty and claimed trial of the case.

9. During trial, prosecution examined PW-1 DSP Shakeel Ahmed at Ex.4, the Investigating Officer PW-2 complainant Nazeer Ahmed at Ex. 5; PW-3 eye-witness Dodo Khan at Ex. 6; PW-4 SIP Muhammad Saleem the first investigating officer at Ex.7, PW-5; Dr. Baldev at Ex.8; PW-6 Tapedar Sikandar Ali Shah at Ex.9. Vide statement at Ex.10 prosecution closed its side of evidence. Then statement of accused Azharuddin was recorded under section 342, Cr.P.C. at Ex.11. wherein he denied the prosecution allegations and professed his innocence. The accused neither examined himself on oath, nor examined any witness in his defence. Thereafter, the learned trial Court after hearing the learned counsel for the parties, also acquitted accused/private respondent Azharuddin vide impugned judgment dated 26.07.2017. Hence these acquittal appeals.

10. Learned trial court in the impugned judgments has already discussed the evidence led by the prosecution in this case twice, in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

11. The learned counsel for the appellant in both Cr. Acquittal Appeals has contended that the impugned judgments passed by the learned trial Court are illegal, perverse and the reasons assigned for acquittal of the private respondents are artificial, vis-a-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the private respondents are not supportable from the documents and evidence available on record; that the private respondents have been directly charged with the offence and that discrepancies in the evidence of the prosecution witnesses are not so material on the basis of which respondents could be acquitted; that the learned trial Court has based its findings of acquittal merely on the basis of minor contradictions on non-vital points in the evidence of prosecution witnesses; that the prosecution evidence has not been properly appreciated; therefore, under these circumstances, he prayed that the captioned acquittal appeals may be allowed as prayed.

12. Learned counsel for the private respondents while supporting the impugned judgments contended that the same are perfect in law and on facts; that they are innocent; that they have not played any role in the commission of the alleged offence; that these appeals were filed in the years 2015 and 2017, respectively, and the case pertains to year 2012 and since then they are appearing before the learned trial Court as well as this Court; that the reasons of acquittal as given by the learned trial Court are convincing/plausible and in accordance with the documents as well as evidence available on record; therefore, according to him, the learned trial Court has rightly acquitted the private respondents and the impugned judgments are perfect and need not to be interfered.

13. Learned APG while reading the evidence and other documents available on record, has conceded to the contentions raised by the learned counsel for the respondents.

14. Heard the learned parties' counsel and perused the record.

15. We have gone through the entire evidence available on record along with the impugned judgment with the able assistance of learned counsel for the appellant as well as private respondents and learned APG and find number of contradictions in between the statements of the prosecution witnesses, which are material and fatal to the prosecution case and these contradictions, discrepancies in the prosecution evidence have already been highlighted by the learned Presiding Officer of the trial Court. When these contradictions, which have already been highlighted by the learned Presiding Officer in impugned judgments were confronted to the learned counsel for the appellant he has not replied the same satisfactorily.

16. It appears from the record that the incident was occurred on 17.09.2012 at 11:00 a.m. when Hidayatullah along with his brother-in-law Dodo Khan while boarding on motorcycle was going toward Faqir Ka Pir and reached at Pakistani Chowk, accused Azharuddin, Zaheer, Shaman and Hassan came on two motorcycles; accused Azharuddin and Zaheer made straight fire shots upon Hidayatullah, as a result of which, Hidayatullah received one injury on his chest and died while taking to hospital.

17. The meticulous examination of the entire evidence as available on record, we have come to the conclusion that the prosecution has miserably failed to prove its case against the private respondents beyond a shadow of reasonable doubt and the learned trial Court has rightly acquitted the private respondents for the reasons that P.W. Dodo Khan who is eye-witness of the incident is serving in Police Department and on the day of incident he was on duty under entry in relevant record and claimed to have left the Police Station for breakfast and went to market to purchase some articles along with deceased but no any such entry to leave the Police Station is available in record: that as per evidence of Dodo Khan he was riding on motorcycle along with deceased Hidayatullah, who was driving the motorcycle and he was behind to him, he also stated that deceased received bullet injury on chest, which as per prosecution case was through-and-through but admittedly he has not received any scratch; that according to evidence of PW Dodo, four persons made straight firing upon them when he was with boarded along with the deceased on motorcycle but surprisingly he has not received any injury/scratch; that eye-witness Dodo further stated that blood started oozing from injury of deceased on receipt of injury and also he took the injured in Rickshaw for hospital but even then no any blood mark was found on his clothes; that despite direct firing as well as fall of motorcycle due to fires, neither P.W. Dodo received any injury/scratch nor motorcycle was damaged; that P.W Dodo also stated that deceased succumbed to injuries in the hospital but postmortem report shows instant death; that P.W. Dodo is also mashir of dead body visit, Danistnama, injury, site inspection and recovery of clothes but in his cross-examination he stated that he cannot say that who prepared the mashirnamas; that as per first version given by complainant in FIR and in statement under Section 161, Cr.P.C. of PW Dodo that two accused made fires from motorcycle while coming on right side of the deceased, which is contradicted by medical evidence because no injury on right upper chest can be received from right side; that P.W. Bashir in his further statement recorded under section 162, Cr.P.C. on 24.09.2012, has stated that "accused murdered Hidayatullah in his presence." Whereas while recording his evidence before the trial Court (Ex.07) he stated that "I do not know about the facts of the case. Vol. says no any incident took place in my presence. I am giving my statement without any fear and force." Surprisingly, this prosecution witness neither has been declared as hostile nor he has been cross-examined by the defence counsel. P.W. Bashir in his 162, Cr.P.C. statement has further stated that after the incident he informed the complainant Nazeer Ahmed on mobile phone; whereas complainant Nazeer Ahmed in FIR as well as his examination-in-chief recorded before the learned trial Court has stated that his son-in-law P.W Dodo has informed him about the incident on mobile phone.

18. We have noted that on the date of incident i.e., 17.09.2012 the I.O has recovered two empties of 32-bore pistol and one empty of 9-mm pistol from the place of occurrence: whereas the appellant Zaheer was arrested on 18.09.2012 and one 9-mm pistol bearing No.A-6661124 was also recovered from his possession in presence of mashirs Dodo and Zaheer Ali, but the said empties and pistol were sent to FSL for examination and report on 20.09.2012; however, the Examiner of the Fire Arms, Forensic Division Hyderabad vide his report dated 25.10.2012 has opined as under:

03. OPINION. The examination of the case has led that:

1. One 9mm bore crime empty now marked as "C1" was not fired from the above mentioned 9mm bore Pistol No.A-6661124 in question, in view of the following major points i.e. striker pm marks, breech face marks and ejector marks etc are Dissimilar.

2. Two .30 bore crime empties now marked as "02" and "C3" are the fired empties is of one and the same 30 bore Pistol. Note: One 9mm bore test empty is being sent in the scaled parcel of the above mentioned fire arm." When this crucial point was confronted to learned counsel for the appellant for reply he has no answer with him. This aspect of the case has caused a serious dent in the prosecution case and benefit of the same must go in favour of the accused/ appellants.

19. In view of the above, it is crystal clear that the case of the prosecution based upon the contradictory evidence and the impugned judgments passed by the trial Court are legal, proper and based upon sound reasons. Accused/private respondents were acquitted by the trial Court mainly on the ground that the evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy. During the course of arguments, we have specifically asked the question from learned counsel for the appellant to point out / show us any piece of evidence, which is not supportable from evidence on record no satisfactory reply was available with him. Perusal of record further shows that the trial Court rightly acquitted the accused / private respondents through impugned judgments, which are neither perverse nor arbitrary. So far as the appeals against acquittal are concerned, after acquittal private respondents / accused have acquired double presumption of innocence, this Court would interfere only if the impugned judgments are arbitrary, capricious or against the record. But in this case there were number of infirmities and contradictions in the entire prosecution evidence, as discussed earlier, and the impugned judgments of acquittal in our considered view, do not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Hon'ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo reported as 1993 SCMR

585. Hon'ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-- "

14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to be case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.

20. For what has been discussed above, we are of the considered view that impugned judgments are based upon valid and sound reasons and are entirely in consonance with the law laid down by the Hon'ble Supreme Court of Pakistan. Neither, there is any misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, these criminal acquittal appeals being devoid of any force and consideration are dismissed along with the pending applicant(s) and the impugned judgments dated 23.04.2015 and 26.07.2017, passed by the learned Sessions Judge, Hyderabad in Sessions Case No.131/2013 stand maintained. JK/N-30/Sindh Appeals dismissed.