2020 P Cr (PLP)

ABDUL MOBEEN LAKHO, J.

Respondents/accused Sanaullah and Abdullah were tried by learned Additional Sessions Judge (Hudood), Sukkur in Crime No.118/2008, registered at Police Station A-Section, Sukkur, for offences under sections 302, 337-H(2), 148, 149 and 114, P.P.C. and by judgment dated 04.02.2014, the respondents/ accused were acquitted of the charge. Hence, instant Criminal Acquittal Appeal is filed by the appellant/complainant Ahmed Ali. During pendency of this appeal respondent Sanaullah died and proceedings against him were abated vide order dated 05.05.2016.

2. Brief facts of the case are that on 20.09.2008, complainant Ahmed Ali has lodged FIR alleging therein that deceased Mehmood aged about 40/42 years was his elder brother. They owned residential house, shop of milk and a cattle pond situated in Adam Shah Colony Garam Gody Sukkur. They had dispute with Ghulam Sarwar and such litigations are pending in the courts. On the day of incident complainant and his brother Mehmood, nephew Arif and cousin Abdul Ghaffar were sitting in the shop of milk and his brother Mehmood was sitting in the shop over Sandal (table), it was 1700 hours, they saw in the street accused Ghulam Sarwar. Abdul Wahab, Jamaluddin, Abdul Razzak, Abdullah and Rehmat came over there and accused Rehmat by abusing instigated the co-accused saying that their enemy Mehmood is sitting in front of them, don't spare him and commit his murder. On his instigation. accused Ghulam Sarwar, Abdul Wahab, Abdul Razzk and Abdullah took out pistols from folds of their shalwars and made straight fires at Mehmood which hit him and he fell down on the cot lying near Sandal in the said shop and in the meanwhile two persons also came from outside who had pistols in their hands to whom complainant party saw and identified to be accused Sanaullah and Ghulam Hyder who fired in the air in order to create harassment. Complainant raised cries and on their cries and fire shot report, the neighbourers came who beseached to the accused and then all the accused by making firing ran away. Complainant checked his brother Mehmood and found fire arm injuries on his right shoulder. neck. near the armpit and on the abdomen and blood was oozing and was dead. Complainant leaving his nephew Muhammad Arif and Cousin Abdul Ghaffar over the dead body went to police station and lodged FIR. It was recorded vide Crime No.118/2008, under sections 302. 337-H(2), 148, 149 and 114, P.P.C. at Police Station 'A' Section Sukkur.

3. After usual investigation challan was submitted showing accused Abdul Wahab and Ghulam Hyder in custody while accused Sanaullah. Ghulam Sarwar, Rehmatullah and Abdullah in column No.2 of the challan and accused Abdul Razzak as absconder. Complainant filed application for joining them as accused, accused Sanaullah and Abdullah were joined by court as accused. Thereafter accused Sanaullah, Rehmatullah and Abdullah voluntarily appeared and joined the trial.

4. Trial Court framed charge against accused Abdul Wahab, Ghulam Hyder, Sanaullah, Rehmatullah and Abdullah by the trial court at Ex.3 to which they pleaded not guilty and claimed to be tried. During trial accused Abdullah jumped over the bail and absconded away and he was declared as absconder.

5. The prosecution to prove its case examined PW Akhtar Hussain at Ex.11 and PC Kifayat Hussain at Ex.12. Thereafter, accused Ghulam Sarwar join the trial and then legal heirs of deceased and accused Abdul Wahab, Ghulam Hyder, Ghulam Sarwar and Rehmatullah jointly filed compromise application, and then statements of legal heirs of deceased were recorded, thereafter, the compromise application under section 345(6), Cr.P.C. was accepted by the court and accused Abdul Wahab, Ghulam Hyder, Rehmatullah and Ghulam Sarwar were acquitted by the trial court under section 345(6), Cr.P.C. vide order dated 13.4.2013. Thereafter prosecution examined complainant Ahmed Ali at Ex.14, PW Muhammad Arif at Ex.15, PW Abdul Ghaffar at Ex.16.. PW/PC Kifayat at Ex.17, P.W/mashir PC Abdul Sattar at Ex.18, mashir Yaseen at Ex.19 SIO/retired Inspector Ahsan Ali at Ex.20. PW Dr. Iqbal Ahmed at Ex.21, PW Tapedar Manzor Ahmed at Ex.22 and PW Hafiz Atta Muhammad at Ex.23. Thereafter prosecution side was closed.

6. The statements of accused were recorded under section 342, Cr.P.C. at Ex.25 in which accused Sanaullah denied allegation, alleged false implication and professed his innocence. Neither he neither examined himself on oath nor led evidence in his defence.

7. Subsequently police arrested accused Abdullah and sent up to face trial and then the case proceeded afresh against the accused. Thereafter, prosecution examined all above named witnesses as recalled and re-affirmed. examination- in-chief for accused Abdullah was fresh and all witnesses were also cross-examined at length and prosecution also examined PW/mashir Hadi Bux at Ex.27, PW PC Khan Muhammad at Ex.28 and then prosecution side was closed. The statements of accused were recorded under section 342, Cr.P.C. at Exs.30 and 31 in which accused Sanaullah and Abdullah denied allegation. alleged false implication and professed their innocence. Accused Abdullah examined himself on oath at Ex.32 and produced his defence witnesses at Ex.33. Accused Sanaullah also examined on oath. Again statement of accused Abdullah was recorded under section 342, Cr.P.C. at Ex.34 while mentioning the question of abscondance of accused Abdullah and accused denied allegation, alleged false implication and professed his innocence.

8. Learned trial court after hearing the learned counsel for the parties and assessment of entire evidence acquitted the accused.

9. I have heard Mr.Ali Amir Shah learned councel for the appellant/complainant, Mr. A.R. Faruq Pirzada learned counsel for respondent Abdullah and Mr. Zulfiqar Ali Jatoi, learned Addl. P.G.

10. Learned counsel for the appellant/complainant submits that no doubt accused were carrying pistol at the time of incident and used but according to the Doctor pellets were recovered from the dead body of the deceased. It is submitted by the learned counsel for the complainant that pellets were not handed over by the Doctor to the police which according to counsel for complainant it was the favour extended by the Doctor. He also argued that ocular evidence is strong enough medical evidence could have been ignored by the trial Court.

11. Mr. A.R. Faruq Pirzada Advocate appearing for respondent Abdulllah argued that accused/respondent was declared innocent during investigation. He was joined as accused in the trial and according to Medical Officer pellets were recovered whereas according to case of prosecution bullets were fired by the appellant from the pistol. He submits that the acquittal appeal merits no consideration.

12. Mr. Zulfiqar Ali Jatoi Addl. P.G submitted that during postmortem examination three pellets were recovered from the dead body of deceased Mehmood and same were handed over to SHO Police Station A-Section Sukkur. According to the mashirnama of place of wardat empties of the pistol were recovered and no cartridge was recovered from the place of wardat. Learned APG supported the judgment of the trial Court.

13. We have carefully perused the evidence brought by the prosecution before the trial court. Complainant Ahmed Ali Ex.27. eye-witnesses Muhammad Arif Ex.28 and Abdul Ghaffar Ex.29 have deposed that on 20.09.2008 at 05.00 p.m. they were sitting at the milk shop of complainant along with Mehmood the brother of complainant where accused Rehmatullah Abdul Razzaque, Abdullah, Abdul Wahab and Ghulam Sarwar came and on the instigation of accused Rehmatullah all the four co-accused took out pistols from fold of their shalwars and made fire shots at Mehmood the brother of complainant who received injuries and fell down. Mashir Yaseen Ex.32 also deposed that police secured two empties of the pistol from the place of vardat in his presence. Investigating Officer Inspector Ahsan Ali Ex.33 deposed that he visited the place of wardat in presence of mashirs namely Yaseen and Yakoob and recovered two empties of TT pistol of 30 bore. However, the Medical evidence is in conflict with the ocular version as M.O. Dr. Iqbal Ahmed Ex.34 deposed that during post mortem examination three pellets were recovered from dead body of deceased which were sealed in bottle and sent to SHO PS A-Section Sukkur. This conflict between medical evidence and the ocular version caused serious dent in the prosecution story. Moreover, the complainant himself admitted enmity with the accused party in the FIR stating therein that Ghulam Sarwar Tanwar and Abdul Razzak Tanwari had blood shed quarrel with them and a dispute over place was going on and such cases are pending before the courts. It also appears that present appellant Abdulah was found innocent during investigation, I.O. Inspector Ahsan Ali Ex.33 has deposed that he found innocent accused Sanaullah, Abdullah, Ghulam Sarwar and Rehmatullah therefore their names were placed in column-2 of the challan sheet. These discrepancies and contradictions made the prosecution case highly doubtful. Trial Court by assigning sound reasons has acquitted the respondent/accused.

14. In case of Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803), the Hon'ble Supreme Court of Pakistan has observed as under: "It needs no reiteration 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 no interfere unless the impugned order is arbitrary, capricious, fanciful and against the record".

15. For the above stated circumstances, the findings recorded by the trial court are neither perverse, arbitrary nor speculative. As such, there is no merit in the appeal against acquittal. Acquittal recorded by trial Court in favour of respondent/accused is based upon sound reasons, which requires no interference at all. As such, the appeal against acquittal is without merit and the same is dismissed.

14. These are the reasons for our short order announced on 12.9.2019. SA/A-177/Sindh Appeal dismissed.