2020 PLP 1013 (MLD)

FAHIM AHMED SIDDIQUI, J.

Through instant Criminal Acquittal Appeal, the appellant/complainant has assailed in the impugned judgment dated 30.10.2017 passed by the learned Additional Sessions Judge, Matiari, in Sessions Case No. 85/2013 (The State v. Khan Muhammad and others), whereby the respondents/accused were acquitted from the charge of the murder of deceased Ghulam Ali Brohi.

2. Brief facts of the prosecution case are that on 18.03.2013 at 20:30 hours at Birandi Shakh, Deh Banwari, the respondents/accused namely Khan Muhammad, Dholio, Abrab, Allah Jurio and Ali Muhammad armed with lethal weapons and batons came in a Jeep of black colour. They, after coming at the place of incident, intercepted and encircled the complainant party under brandishing weapons and at the same time respondent/accused Khan Muhammad made straight fire from his pistol upon deceased Ghulam Muhammad Brohi which hit him at his chin and he fell down and expired at the spot. The respondents/accused then threatened the witnesses to remain silent and not to complain otherwise they would meet the same fate and thereafter they decamped from the scene of offence.

3. The matter was reported by the appellant and after investigation, a final report was submitted before the learned Judicial Magistrate-II, Hala showing all the respondents/accused as absconders. As soon as the case was entrusted to the trial Court, the respondents/accused appeared and joined the trial. The trial commenced and after a full-fledged trial, the trial Court came to conclusion that the prosecution remained fail to establish the case against the respondents, as such, they were acquitted through the impugned judgment.

4. The learned counsel for the appellant submits that the prosecution has established the case against the respondents but the learned trial Court has not considered the evidence of prosecution and acquitted the respondents merely on technicalities. After going through the different portions of the deposition of prosecution witnesses, he submits that the contradictions are a minor and the same will not hinder in bringing the guilt of accused persons to home.

5. The learned counsel for the respondents supposedly impugned judgment and submits that the prosecution case is full of contradictions and doubts, as such, the case against the respondents could not establish. He submits that in the instant case there is no recovery and motive is weak and the same is also not proved by the prosecution during the trial. He specifically points out that the availability of the prosecution witnesses at the place of incident is highly doubtful and the fact is that the alleged incident is an unseen incident. According to him, the deceased was himself is a bandit and absconder and a government KK was recovered from him.

6. Learned DPG supports the impugned judgment and he adopted the arguments of learned counsel for the respondents. In addition, he submits that the incident was allegedly taken place at an isolated place during night time and the complainant and eye witnesses have not disclosed the source of identification. He also submitted that the eye witnesses could not describe the reasons for their availability at the place of incident at such time.

7. We have heard the arguments and have gone through the record and proceedings available before us. In the present case, there are certain things which requires consideration. The place of incident is situated nearby a water course and the time of incident is reportedly 20:30 hours when there must be complete darkness, since the place of incident is an inhabited rural plain. It is alleged by the complainant in his examination in chief that the motive of the incident is that the deceased was Hari of respondent Khan Muhammad and an amount of Rs. 1,50,000/- was outstanding, which was not being paid by respondent Khan Muhammad. Since the deceased was demanding such amount; therefore, the respondents came at the place of incident and cause the murder of the deceased. It is worth mentioning that the prosecution could not establish that there was an amount of Rs. 1,50,000/- outstanding against respondent Khan Muhammad. Even the prosecution could not show that the deceased was ever Hari of respondents. It is worth noting that during cross-examination, the appellant turned to his heels in respect of motive; as during cross-examination he says that in the year 1992 the uncle of Khan Muhammad namely Nawab Dal was murdered by people of Brohi community and he had heard that the respondent Khan Muhammad was kidnapped by the persons of Brohi community in the year 2011.

8. Another aspect of the case is of importance, which pertains to the availability of the prosecution witnesses at the place of incident. It is the admitted position that both of the prosecution eyewitnesses were residents of far-off places and during their examination before the trial Court, they could not reason out their availability at the place of the incident at night time. It is hard to comprehend about the availability of the prosecution witnesses at the place of the incident when they were not residents of the vicinity. It is also incomprehensible that why both the eye witnesses left the dead body of the deceased laying at the place of incident and did not try to shift him to the hospital. It is also worth noting that all these effects have been pointed out by the learned trial Court in addition to the contradictions highlighted by the trial Court.

9. The medical evidence is also important in respect of the death of the deceased. The Medico Legal Officer has verified that the injury sustained by the deceased was firearm injury but he opined that the same being pea shaped injury, is not possible to be caused from the front side and the same may cause from a different angle. We have examined the impugned judgment and we are of the view that there is no misreading or non-reading of the available evidence, besides the appreciation of evidence by the learned trial Court is also proper and as per the settled norms of appreciation.

10. In view of the above observation, we are of the considered view that the impugned judgment, through which the respondents have been acquitted, does not require any interference by this Court. Resultantly, instant criminal acquittal appeal is dismissed being meritless. These are the reasons for our short order dated 11.12.2018. SA/P-11/Sindh Appeal dismissed.