2011 PLP 885 (YLR)

IRFAN SAADAT KHAN, J.-This Criminal Acquittal Appeal is directed against the judgment dated 8-1-2010, passed by the learned Sessions Judge, Tharparkar at Mithi whereby he acquitted the respondents Nos.1 to 5 of the offences under sections 302, 337-A(i), 337-F(v), 504 and 34, P.P.C. with which they were charged praying that the same be set aside and the respondents Nos.1 to 5 be convicted and sentenced.

2. Briefly stated facts as they appear from the record are that on 6-4-2007, when deceased Qasim was present in his house along with complainant Muhammad Usman, he was called from outside. The complainant then heard cries of Qasim, he then rushed outside and found the accused persons namely Ramzan son of Hussain duly armed with lathi and Aslam son of Ramzan, Jalal son of Sawan and Moosa son of Gul Muhammad empty handed at the spot. Thereafter as per the complainant, Ramzan hit Qasim with his lathi and other two accused persons started beating him mercilessly. The deceased received 'injuries on his person. The noises of the incident attracted P.Ws. Allah Rakhio and Allah Jurio also. The P.Ws. then intervened and got the deceased rescued from the clutches of the accused persons. Thereafter all the accused persons/respondents fled away. Complainant Muhammad Usman thereafter approached one Hussain, living in the neighbourhood, who instead of helping them abused the deceased and asked them to leave at once otherwise they will have to face dire consequences. Deceased Qasim, who was alive at that time, thereafter approached Police Station Diplo for lodging the F.I.R. but no F.I.R. was lodged, however, N.C. entry was kept in the Station Diary of Police Station Diplo and Qasim was referred to Taluka Hospital Diplo for treatment etc., by the police. Qasim remained at the hospital for about a month. The Medical Officer, Taluka Hospital Diplo issued him a certificate regarding the injuries received by him at the hands of the accused persons and subsequently on 26-7-2007 a F.I.R. bearing No.15 of 2007 was registered at Police Station Diplo under sections 337-F(v), 337-A(i), 337-F(i) and 504, P.P.C. against the respondents Nos.4 to 5.

3. As per the record, F.I.R. was not registered in the first instance as it is stated that accused persons were influential people of the area. It is also mentioned that no proper investigation was even conducted after the registration of the F.I.R. on the pretext that the accused persons are influential "Vaderas" of the locality. However, when the investigation was on, Qasim succumbed to the injuries and expired and such information was communicated to Police Station Diplo but of no avail. It is further alleged that the police instead of inserting sections 302 and 34, P.P.C. in the Challan let off the accused persons of the charge by placing their names in column-Il of the Challan.

4. Being aggrieved with the attitude of the police, the complainant moved an application under section 22-A, Cr.P.C., which was dismissed by directing the complainant to approach the trial Court. The complainant thereafter moved an application under section 193, Cr.P.C. before the Judicial Magistrate Diplo, but that application was dismissed for non-prosecution. As per the averments of the appeal, the complainant has not only lost faith in the police but was also dissatisfied with the investigation and filed yet another direct complaint before the Sessions Judge Thaiparkat at Mithi for apprehending the respondents/accused persons for brutally murdering the deceased by beating him severely with lathis, who after treatment in the hospital for about one month had died. The Sessions Judge after receiving the direct complaint carried out necessary legal formalities by issuing notice to the accused persons who appeared and furnished surety in respect thereof. Before framing the charge the Sessions Judge, on each date of hearing, issued a number of notices to the complainant and his counsel, who took unnecessary adjournments. Thereafter the matter was finally decided on merits in absence of the counsel of the complainant.

5. Mr. Muhammad Shafi Kashmiri, learned counsel appearing on behalf of the appellant submitted that the order passed by the learned Sessions Judge was not in accordance with the law as he has dismissed the case against respondents without appreciating the evidence in its true perspective. As per the learned counsel the Sessions Judge/trial court wrongly acquitted the respondents/accused without applying its judicious mind. As per the learned counsel the accused/respondents persons have brutally murdered the deceased Qasim and the certificate issued by the medical officer supports his version. He, in the circumstances, prayed that the impugned order may be set aside by convicting and sentencing the accused persons.

6. The learned Additional Prosecutor-General Sindh has supported the impugned judgment.

7. We have heard the leaned counsel, Addl. P.-G and have perused the record which shows somewhat strange circumstances. It is evident from the record that neither the complainant nor his counsel cared to appear before the Sessions Judge on the respective dates fixed for hearing and on each date sought unnecessary adjournments without any rhyme or reason. The learned Sessions Judge has granted them sufficient number of opportunities to appear before him and to make their submissions but they chose not to put appearance on the respective dates. It is also -matter of record that Judicial Magistrate Diplo in Criminal Case No.39 of 2007, wherein accused Ramzan had been arrayed in the direct complaint had acquitted him under section 245(1), Cr-P.C., which amply proves that no incriminating material has been found against the accused Ramzan by the said Judicial Magistrate. The record further shows that the incident took place on 6-4-2007, whereas the F.I.R. was registered on 26-7-2007 on the basis of N.C. already recorded at the instance of deceased Qasim. No evidence or material has been produced either before the learned Sessions Judge or before this Court to substantiate that the cause of death of the deceased was the injuries, caused by the respondents/accused persons during the aforementioned incident. The deceased remained in the hospital for about one month and instead of getting himself fully cured/treated, left the hospital against the medical advise "LAMA", which amply proves that he did not want himself to be further treated at the hospital and left it at his own accord without consulting the doctors. No material has been produced either before the trial court or before this Court to show that the injuries allegedly caused by the accused persons were fatal due to which, after passage of a month of the date of the attack by the accused persons, the deceased succumbed to injuries and died. On being asked, whether any postmortem report/certificate regarding the deceased was produced before the trial court, the learned counsel for the appellant conceded that no such certificate was either obtained or produced as post mortem was not conducted. The learned counsel further admits that in absence of post-mortem report and other direct evidence respondents/accused persons were liable to be acquitted extending the benefit of doubt.

8. The deposition of P.W. Allah Rakhio reveals that he had not seen Ramzan beating the deceased with lathi, however, he has stated that blood was oozing from the head of the deceased when he reached the place of incident. The deposition of P.W.6 would also reflect that he had neither seen the incident nor was present at the time of incident. The deposition of P.W.5 Allah Jurio, who was the cousin of the deceased, states that Ramzan inflicted the lathi blows to Qasim, however, he has stated that all the respondents/accused persons were carrying lathis while the deposition of other P.Ws. in contradiction shows that it was only respondent Ramzan, who was carrying lathi and inflicted the blows on Qasim while the others hit him with fists and kicks. The deposition of Doctor Tara Chand, who was the Medico Legal Officer, interestingly did not attribute any head injury on deceased Qasim, however, injuries on shoulder and other parts of the deceased were reported. Moreover, there were marked contradictions in the deposition of the complainant in the statement recorded under section 200, Cr.P.C. and the statement given before the trial court.

9. We, in view of the above facts, are of the considered view that the prosecution has failed to adduce confidence inspiring evidence in support of their claim that it was the respondents/accused persons, who were guilty of the offence causing the death of deceased Qasim. Resultantly, we are of the view that no case of interference is made out and the respondents/accused persons were rightly acquitted by the impugned Judgment for the aforesaid reasons.

10. Above are the reasons of our short order dated 25-11-2010, whereby we dismissed the said Criminal Acquittal Appeal along with the listed appli cation. N.H.Q. /M-204/K Appeal dismissed.