2005 PLP 215 (YLR)

MUHAMMAD MOOSA K. LEGHARI, J.

This appeal is directed against the judgment, dated 31-10-1998 passed by learned Additional Sessions Judge, Sanghar, in Sessions Case No.197 of 1996, whereby the learned trial Judge acquitted accused/respondents Ibrahim Shar, Suhrab Shar, Khan Shar, Guloo alias Gul Shar, and Sanghram Bheel, under section 265-H, Cr.P.C. of the charges under sections 302 and 265-A, P.P.C. in Crime No.16 of 1996 registered at P.S. Perumal Police Station. According to the case of the prosecution appellant/complainant Karim Bux lodged report on 10-9-1996 being Crime No.16 of 1996 stating that he along with his maternal cousin Amir Bux, Saddar who was the son of maternal uncle and a relative Allahyar are residing together and cultivating the land of Akbar Khan Kaloi. On the day of occurrence in the morning complainant brought his cotton pods to Kandiari, on the camel-cart of Hadi Bux Kaloi along with Amir Bux, Saddar, and Allahyar at the Pedhi/shop of Mirchoo-Mal and were unloading the camel-cart. Meanwhile Sanghram Bheel came on Tractor and the front portion of tractor's blade hit the camel-cart. On inquiry that why he hit the camel cart, Sanghram Bheel became annoyed and went away. After selling the cotton-pods complainant, Amir Bux, Saddar and Allahyar were going towards Bazzar and when they reached in front of taxi stand at about 10-30, they found that Ibrahim Shar armed with gun, Suhrab Shar armed with hatchet, Guloo alias Gul Shar armed with Lathi, Khan Shar armed with Lathi, and Sanghram Bheel armed with Lathi were coming from opposite side of the town, who on seeing them stated that they had insulted their driver and that they would kill them and also started abusing. Ibrahim Shar made straight fire from his gun which hit Saddar on his abdomen who fell down and started bleeding. Suhrab Shar with hatchet, Guloo alias Gul Shar with Lathi, Khan Shar with Lathi and Sanghram Bheel with Lathi jointly caused blows to Amir Bux Kaloi on his head and back of the chest, due to which Amir Bux fell down and blood started oozing from his head. They also raised cries, which attracted Juman Kaloi and other citizens who intervened and got them rescued. Accused after abusing them went away with their Lathies, hatchet and gun. Complainant and Allahyar removed injured Saddar and Amir Bux to Rural Health Centre. Kandiari, where the Doctor declared Saddar as serious and referred him to Hyderabad, hence complainant and Allahyar proceeded to Hyderabad with injured. Saddar and at about 1-30, when they reached near Jam Nawaz Ali, Saddar Kaloi died. They, thereafter, brought the deed body of Saddar Kaloi to Kandiari Hospital, where complainant Karim Bux leaving Allahyar Kaloi with the dead body of Saddar, appeared at P.S. Perumal and lodged report against accused Ibrahim Shar, Suhrab Shar, Guloo alias Gul Shar, Khan Shar, and Sanghram Bheel alleging that they attacked the complainant party with Lathies, hatchets and gun due to annoyance of Sanghram Bheel and committed Qatl-e- Amd of Saddar Kaloi and also caused injuries on the person of Amir Bux with intention to commit Qatl-e-Amd. After usual investigation police sent up all the accused persons to face trial. To prove the charge against the accused prosecution examined P.W. Dr. Abdul Ghaffar Exh. 11; P. W. Karim Bux complainant Exh. 12, P.W. Amir Bux Exh. 13, P.W. Muhammad Juman Exh. 14, P.W. Jan Muhammad Exh. 17, P.C. Laliyo Mal Exh. 18, Tapedar Abdul Ghani Exh. 20, ASI Haji Khan Exh. 21 and P.C. Khushhal Khan Exh.

22. Prosecution produced postmortem report of deceased Saddar Exh.11/B, Medico-legal Certificate of injured Amir Bux Exh.11/D, F.I.R. Exh.12/A, 164, Cr.P.C. statements of Amir Bux Exh. 13/A and Muhammad Juman Exh. 14/A, Mashirnama of place of incident Exh.17/D, Mashirnamn of dead body as Exh. 17/A, inquest report Exh.17/B, Mashirnama of injuries of Amir Bux. Exh. 17/C, mashirnama of place of incident Exh.17/D, mashirnama of arrest of all the five accused and recovery of weapons Exh.17/E, mashirnama of clothes of deceased Exh. 18/A, sketch of place of incident Exh. 20/A, Report of Chemical Examiner Exh.21/A and report of Ballistic Expert Ex. 21/B. After closure of the prosecution side all the five accused recorded their statements under section 342, Cr.P.C. wherein they denied the prosecution allegations, pleaded their innocence and claimed that they were falsely implicated due to political enmity. Accused Ibrahim Shar and Suhrab Shar examined them on oath in disproof of the evidence. None of the accused produced any witness in their defence. Upon appraisal of the evidence learned trial Judge acquitted all the accused/respondents under section 265-H, Cr.P.C. of the charges. Being aggrieved and dissatisfied with the judgment of acquittal appellant/ complainant Karim Bux has assailed the same through this Cr. Acquittal Appeal. We have heard Mr. Aijaz Ahmed Shaikh, learned counsel appearing on behalf of the appellant, Syed Maddad Ally Shah, learned counsel appearing on behalf of respondents Nos.1 to 5 and Mr. Mukhtiar Khanzada, learned counsel appearing on behalf of the State. It was contended by Mr. Aijaz Ahmed Shaikh, learned counsel for the appellant that evidence of a witness cannot be disbelieved solely on the plea that he is related to the deceased. It was further contended that the learned trial Court committed illegality in not considering the ocular evidence which was sufficient to prove the case of the prosecution. There was no motive to falsely implicate the accused persons and that specific role of firing was attributed to accused Ibrahim while co-accused were also implicated for inflicting hatchet and Lathi blows upon the person of injured Amir Bux. It was next argued that the medical evidence was consistent to the ocular evidence. Regarding the maintainability of appeal, it was contended that appellant Karim Bux was not only the complainant and one of the P.W. in the case but was closely related to the deceased and injured, as such he was an aggrieved person, and thus competent to maintain the appeal against acquittal contemplated under section 417 (2-A), Cr.P.C. In support of his contention learned counsel placed reliance on number of authorities, which included 2002 SCMR 269, 2002 SCMR 601, 2002 SCMR 626, 2000 SCMR 448, 2000 SCMR

919. On the other hand Syed Madded Ally Shah, learned counsel appearing for respondents/ accused at outset objected to the maintainability of the appeal on - the ground that complainant was neither injured person nor the legal heir of deceased as such was not competent to maintain, the appeal against acquittal. Learned counsel further contended that though in the F.I.R. complainant has stated that an altercation took place between complainant party and accused Sanghram, yet he has not stated about any altercation in his deposition recorded before the Court. It was further argued that there are material contradictions in the evidence of P.Ws Karim Bux, Amir Bux and Juman. He further argued that the postmortem report was at variance with ocular evidence in respect of time of occurrence and time of death. He has contended that in spite of the fact that the incident took place in day time in presence of so many persons available at the shop of Mirchoomal yet no independent witness was examined. He further argued that no empties were recovered from the place of Vardat and that the Forensic Expert report in respect of gun as crime weapon was of no consequence as no empties were sent for such report. He further argued that admittedly the hatchet and Lathi allegedly recovered from the possession of the accused/respondents were neither blood stained nor were sent for chemical examination. He contended that in fact it was un witnessed incident. He argued that the judgment was based on evidence and did not suffer from any infirmity. In support of his contentions learned counsel placed reliance on 1999 PCr. LJ 1507. Mr. Mukhtiar Khanzada, learned counsel appearing on behalf of the State contended that the considerations for interference in an appeal against acquittal were altogether different from the principles to be taken into consideration while deciding an appeal against conviction. He argued that there was a double presumption of innocence in respect of accused persons and that the judgment did not warrant any interference. We have considered the argument advanced at the bar and have also benefited from the case-law relied upon by the learned counsel for the parties: The first point which requires to be considered is about competence of the appellant to maintain the instant appeal. Admittedly prior to the insertion of subsection (2-A) in section 417, Cr.P.C. the appeal could only be filed by the Provincial Government by issuing directions to the Public Prosecutor or in case an order of acquittal was passed in a case instituted upon a complainant the appeal could be filed in the High Court A after grant of special leave to appeal from the order of an acquittal. However an amendment in the Code was brought about by Act XX of 1994 which became effective from 14-11-1994 whereby the right to prefer an appeal was extended to any "person aggrieved by the order of the acquittal." The intention of the law-makers which could be gathered by making this amendment obviously was to extend the right to any person aggrieved by the judgment of acquittal. In fact this is a beneficial amendment in the procedural law and must be construed liberally. In the instant case Karim Bux was not only the complainant but also an eye-witness of the incident. Nevertheless he was closely related to deceased Saddar as well as injured Amir Bux. In this view of the matter we are not persuaded by the contention raised by Syed Madded Ally Shah, learned counsel for respondents/ accused that since the appellant was neither himself an injured person nor "Wali" of the deceased, thus, he was excluded from the term "aggrieved person" and was not competent to, maintain this appeal. This contention on the face of it is ridiculous, misconceived and devoid of force, the same is repelled. Adverting to the merits of the case we find that though the complainant has stated in the F.I.R. that after the tractor driven by accused Sanghram hit camel cart of the complainant party there was some altercation between Sanghram and complainant party but this fact has not been brought in evidence. In evidence he has testified that after hitting of tractor to camel cart accused Sanghram went away. Thereafter accused Ibrahim, Sohrab, Khan, Guloo and Sanghram again came back duly armed with deadly weapons. In his deposition he stated that he and P.W. Juman accompanied injured Saddar (who subsequently died) to hospital, whereas P.W. Juman has categorically denied this fact stating that he had not accompanied P.W. Karim Bux for removing injured Saddar to hospital. P.W. Muhammad Juman further deposed that police did not record his statement till the day he appeared in the Court for deposition. He further denied that he did not go to hospital to inquire about the health of the injured. P.W. Amir Bux deposed that his statement was recoded by police after 15 days when he was discharged from the hospital. The said P.W. categorically stated that they neither abused tractor driver Sanghram nor gave him beating. He also confirmed that neither any damage was caused to camel cart nor camel or its owner sustained any injury. According to the statement of injured Amir Bux after sustaining injuries he became unconscious. However, according to the statement of P.W. Dr. Abdul Ghaffar injured Amir Bux went to him for treatment all alone. This contradiction if taken into consideration would lead to the inference that either P.W. Karim Bux did not witness the incident or P.W. Juman was set up witness. Dr. Abdul Ghaffar has testified that the dead body of Saddar was identified by Hyder and Akbar who claimed to be respectively father and relative of the deceased. This fact has been mentioned in the postmortem report. This fact is also in contravention of the testimony of P.W. Karim Bux who claims to have identified the dead body' of deceased Saddar. Ocular version given by P.Ws complainant Karim Bux and injured Amir Bux to the effect that assailant Ibrahim fired from opposite side has been falsified by the medical evidence according to which deceased Saddar sustained fire arm injuries from backside. Ocular testimony of P. W. Karim Bux stating that it was accused Ibrahim who fired at the deceased from the distance of three paces is also against the medical evidence. Evidence of injured Amir Bux is also contradictory to the medical evidence. P.W injured Amir Bux has deposed that accused Suhrab caused sharp side hatchet injuries on his head, resultantly bleeding started and he went unconscious whereas medical evidence shows that injured sustained injuries caused) by hard and blunt substance and that none of the injuries was suffered by injured Amir Bux by sharp cutting weapon. The statement of P.W. Amir Bux to the effect that he went unconscious after sustaining injuries and regained his senses in Kandiari Hospital at 6-00 p.m. is also contradicted by the evidence of Dr. Abdul Ghaffar according to him he (injured Amir Bux) himself appeared before him. The statement of P.Ws recorded under section 164, Cr.P.C. were recorded after the unexplained and inordinate delay of 15 days which has further rendered their version doubtful. Admittedly no crime empties were recovered from the place of Vardat therefore, the report of Ballistic Expert in respect of gun was of little consequence to connect the crime weapon with the offence. Admittedly the Lathies and hatchet so recovered from the accused persons were neither stained with blood nor the same were sent for chemical examination thus rendering the recovery of little value, notwithstanding the fact that even the recovery of crime weapons was rendered suspicious as story given by A.S.-I. Haji Khan that all the accused who were arrested after five days were found sitting together duly armed with crime weapons. This version is highly improbable. From the above discussion it will be obvious that version given in the F.I.R. qua role assigned to accused persons was not coinciding with medical evidence. P.Ws have made significant improvement in their evidence. Numerous contradictions and omissions as pointed out above were noticed which rendered the quality of evidence valueless. The principles for appreciation of appeals against acquittal are now well settled. In 1992 SCMR 96 (Yar Muhammad and 3 others v. The State) it was held by the Honourable Supreme Court of Pakistan that 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 made complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdic tion under section 417, Cr.P.C. It was further held that in exercising this jurisdic tion High Court is always slow unless it feels that gross injustice has been done, in the administration of criminal justice. Putting the present case to the test laid down by the Honourable Supreme Court we are of the view that the trial Court did not disregard material evidence or misread such evidence or received such evidence illegally. It cannot be said that the impugned judgment of the trial Court acquitting the accused persons is fanciful, artificial, shocking or ridiculous. It is based on convincing reasons. Learned trial Court has rightly held that the case of prosecution was not free from doubt and the prosecution has failed to prove the guilt of the accused. In the circumstances there are no justifiable reasons to interfere in the judgment of the trial Court. We accordingly hold that the respondents were rightly acquitted. In result the judgment passed by the trial Court is upheld and the instant appeal is dismissed. H.B.T./K-31/K Appeal dismissed.