2016 P Cr (PLP)

GHULAM QADIR LEGHARI, J.

Appellant Muhammad Zahir being aggrieved with the impugned Judgment dated 07.05.1995, passed by the learned IInd Additional Sessions Judge, Karachi (West), whereby the learned trial Court acquitted the accused namely Shah Saeed, Mir Saeed and Gul Saeed. Appellant above-named preferred this appeal against the impugned Judgment. By this Judgment, we intend to decide appeal.

2. Succinctly the facts of the prosecution case as depicted from the FIR No.35/1980 are that the complainant Muhammad Zahir resident of Bhutta Village, Keamari, Karachi, alleged that accused persons namely Shah Saeed, Mir Saeed and Gul Saeed, who reside in his mohallah. It is further alleged that accused had litigation with one Mir Haider in connection with a shop and PW Shamsher, the brother of complainant as well as Sher Afsar brother-in-law of complainant were the witnesses in that case but the accused restrained them from giving evidence in said case, they quarreled with complainant 2/3 times. It is further stated that on 12.02.1980 at about 7:00 am the accused persons also quarreled with one Quettawala as to why he had brought his hand cart (thella) there. PWs Shamsher Khan and Sher Afsar, who were passing in front of the shop of accused. It is further alleged that the accused persons attacked upon them. The complainant who was also following his brother and brother-in-law, saw that the accused Mir Saeed had an Iron Sua, Shah Saeed had an Iron Pipe and Gul Saeed armed with Danda gave blows to Shamsher Khan and Sher Afsar who sustained injuries on their heads and fell down. They were taken in a taxi to the hospital where Sher Afsar son of Mir Ahmed succumbed to his injuries whereas Shamsher was under treatment in the hospital. It is further stated by the complainant that the said incident was witnessed by Shamshad Khan, Abdul Wahid and Sardar Amir and many other persons.

3. The charge was framed against the accused under sections 302/307/34, P.P.C. at Exh.6, to which they pleaded not guilty and claimed to be tried.

4. At trial, the prosecution examined complainant Muhammad Zahir (PW-1), Shamsher Khan (PW-2), Abdul Wajid (PW-3), Sardar Amir (PW-4) Muhammad Zahid (PW-5) Sher Zada (PW-6). Dr. Muhammad Rafiq (PW-7), Sarfraz Khan (PW-8), Kazi Siraj Ahmed (PW-9), Zahir Muhammad (CW-1) has been examined at Ex. No.1 and M.S. Tarique (PW-10) has also been examined at Ex. No.22.

5. The statements of accused were recorded under section 342, Cr.P.C. at Exhs: 24 to 26 respectively, the accused examined themselves on oath under section 340(2), Cr.P.C. at Exh: 27 to 29 respectively. They also examined in their defence one Fida Mohammad at Exh.30.

6. Learned trial court after hearing the defence and State counsel acquitted the accused by extending the benefit of doubt.

7. Mr. Fazal Rahim Yousuf Zai, learned counsel for the appellant/complainant contended that accused Shah Saeed, Mir Saeed and Gul Saeed had litigation with Saeed Haider over shop. Shamsher and Sher Afsar were witnesses of Saeed Haider in his Civil Suit. Accused persons had restrained them from giving the evidence, due to which accused persons had quarreled with them several times. He further argued that on the day of incident Shamsher Khan brother of complainant and his brother-in-law Sher Afsar were passing in front of the shop of the accused persons. He further argued that complainant was behind the Shamsher Khan and Sher Afzal. Accused Mir Saeed armed with Iron Sumba, Shah Saeed armed with Iron Pipe and Gul Saeed armed with Danda, all the three accused persons started causing blows to Sher Afsar and his brother Shamsher Khan. They sustained injuries at their heads and they were taken to the hospital. He further argued that incident was witnessed by the complainant, PWs Abdul Wajid, Shamshad, Sardar Hameed and others. He further argued that eye-witnesses Muhammad Zahir, Shamsher Khan, Abdul Wajid and Sardar Ameer had fully implicated the respondents/accused in the commission of the offence. He further argued that the learned trial Court has erred in fact to conclude that the motive has not been proved against the respondents/accused and respondents/accused Shah Saeed and Gul Saeed admitted the fact that there was a civil litigation with one Meer Haider. He further argued that motive of the respondents/accused was to prevent the Sher Afsar and injured Shamsher Khan from giving evidence in the Civil Suit. He further argued that the trial Court while appreciating the evidence on record concluded that there were general allegations of causing injuries by accused and no specific injury was alleged to have been caused by any particular accused. The observations of the lower court are not according to the facts of the case. He further argued that all the three accused are real brothers and at the time of incident they were armed with Iron Pipe, Iron Sumba and Danda started to beat the PWs Shamsher and deceased Sher Afsar with common intention, in such circumstances it is argued that evidence of eye-witness could not be discarded. He further argued that mere relationship of PWs with deceased is not sufficient ground to discard their evidence. It is argued that there was counter case against the appellant Case No.217 of 1980 under section 307/34, P.P.C. in the said case the appellant had been acquitted. It is further contended that there was confidence inspiring evidence against acquitted accused. Trial Court did not appreciate evidence according to settled principles of law and recorded acquittal on artificial grounds. He has placed his reliance on case of Manzoor Masih v. The State reported in PLD 1995 Supreme Court 307.

8. Mr. Abrar Ali Khichi, learned APG, adopted the arguments advanced by learned counsel for the complainant and did not support the impugned Judgment.

9. Learned counsel for respondents contended that there were material contradictions in the prosecution evidence. According to the eye-witnesses deceased died on the way to Hospital whereas the evidence of doctor reflects that deceased died in the hospital. He further argued that all the PWs were closely related to the deceased. Allegations were generalized in nature. He also argued that there were dishonest improvements in the evidence of PWs at trial. Abdul Wajid has been examined by prosecution but his name did not transpire in the FIR, incident took place in front of the shop of the accused. He next contended that complainant party was aggressor. Recovery has not been proved by the evidence of independent and respectable persons of the locality. Only one pipe was recovered from the acquitted accused. Other properties i.e. iron rod and Danda have not been recovered from the accused. He further argued that complainant party was carrying lethal weapon in comparison to the weapons carried by the accused persons. Lastly, he argued that trial Court has recorded acquittal in favour of the respondents on sound grounds. In support of his contentions, learned counsel for the respondents has relied upon following case law: (i) Ahmed Usman and 2 others v. The State (1992 SCMR 489). (ii) Tariq Pervaiz v. The State (1995 SCMR 1345). (iii) Mirza Noor Hussain v. Farooque Zaman and 2 others (1993 SCMR 305) (iv) Munawar Shah v. Liaquat Hussain and others (2002 SCMR 713)

10. We have heard learned counsel for appellant and learned A.P.G as well as learned counsel for respondent/accused and have carefully gone through the record made available before us with the assistance of learned counsel for the parties and perused the case law cited by the learned counsel for the parties and also perused the impugned Judgment passed by the learned trial Court, the relevant portion of the same is reproduced here-in-below:- "There are general allegations of causing injuries by the accused persons to the complainant party including the deceased. No specific injury is alleged to have been caused by any particular accused to any of the injured persons, therefore, it is not possible to ascertain as to who caused which of the injuries to PW Shamsher Khan or deceased Sher Afsar though the injuries sustained by them as certified by the MLO, are not in dispute. There are also material contradictions in the evidence of complainant and PW which creates doubt atleast in the manner of incident as alleged by the prosecution. The complainant party curing their evidence has also made improvement to establish the nature of offence more heinous, therefore, the same also create doubt in the prosecution case. The complainant in his very FIR had stated that the .injured Sher Afsar died in the hospital. But during their evidence the complainant as well as the PWs have tried at their level best to prove that the injured Sher Afsar died in the way when he was being taken to the hospital. They are however falsified by the evidence of Doctor Muhammad Rqfique who has deposed that injured Sher Afsar was brought at about 7:55 a.m. at Civil Hospital where he died at 9:15 a.m. There is also no any independent witness examined by the prosecution in support of the alleged story of incident. The PW Shamsher Khan is admittedly brother of the complainant and the deceased was their brother in law. The prosecution has examined PWs Sardar Ali and Abdul Wajid as eye-witnesses of the incident but their presence at place of incident at relevant time, is also doubtful. Both these PWs are closely related to the complainant party but no any independent witness was examined or cited as witness though admittedly many persons were present at place of wardat. The PW Sardar Amir's evidence reveals that his duty hours start from 7:30 a.m. but on the day of incident according to him he went to his duty at 6:00 a.m. and returned back at the same time without performing his duty. Accordingly he is shown to be a chance witness. Whereas the evidence of PW Abdul Wajid is also not reliable as he has improved his evidence and went one step ahead to the complainant party while deposing that accused Shah Saeed at the time of incident instigated co-accused to kill the deceased. This was not stated even by the complainant and the injured. According to this witness, his statement under section 161, Cr.P.C. was recorded at police station but he is belied by the Investigation Officer who has deposed that all the statements were recorded by him either at hospital or at place of wardat. Even otherwise the name of this PW Abdul Wajid is not appearing in the very FIR where one Abdul Wahid is shown as eye-witness of the incident and the I.O. is shown as eye-witness of the incident and the I.O. has also deposed so in his evidence but the complainant improved in his evidence saying that Abdul Wahid and Abdul Wajid both were the eye-witnesses. The prosecution has also failed to prove the recovery of any crime weapon by any independent corroborative evidence. It is an admitted position that there are counter case of the parties against the each other. The present case being crime/ FIR No.35 of 1980 was lodged by complainant Muhammad Zahir against the present accused persons for committing murder of Sher Afsar and causing injuries to PW Shamsher Khan. Whereas the counter case bearing FIR No.36 of 1980 was lodged by one of the accused namely Shah Saeed against the complainant Muhammad Zahir. PW Shamsher Khan as well as deceased Sher Afsar who died away after the incident. There are two different versions of the parties in respect of same incident which admittedly took place in front of the shop of accused persons. The version of accused persons is that there was some altercation took place between them and one Quettawala who had placed his Thella in front of their shop and therefore the complainant party was annoyed due to removal of such Thella of Quettawala who, according to accused, was the tenant of deceased party. The complainant in his FIR as well as evidence, has admitted to some extent that there was some altercation between the accused and Thella wala. It is also admitted by the investigating officer that the accused Gul Saeed as well as Shah Saeed had also sustained injuries at the time of incident. In the circumstances, it is the matter of record that both the parties had sustained injuries in same incident admittedly took place in front of the shop of accused. According to defence counsel, the Gul Saeed had sustained two grievous injuries on the back of his chest and the same were very serious injuries but luckily he saved his life by the grace of ALLAH. Whereas the PW Shamsher Khan as well as Sher Afsar sustained seven injuries each. Now the question arises as to whether the accused were aggressors. In this connection it appears from the facts and circumstances of this case that the accused party is not proved to have opened the attack upon the complainant party as it was the complainant party who reached near the shop of the accused where the fight took place. Although both the parties seem to have supressed the injuries of each other but there is no explanation as to how the accused sustained injuries in front of their shop. The deceased party is said to have caused injuries with churri to accused Gul Saeed and there is no explanation as to how the accused sustained injuries in front of their shop. The deceased party is said to have caused injuries with churri to accused and there is no explanation as to why the deceased party reached on the spot duly armed with a churri. On the other hand the weapons allegedly used by accused persons were Iron Pipe, an Iron bar and a Danda which according to defence counsel could be available as usual in every shop like the shop of accused. The mere fact that greater number of injuries sustained by the deceased party cannot be sufficient to hold that the accused party is aggressor. On the contrary the possibility that the accused acted in their private defence, cannot be ruled out in the circumstances of this case. In view of the above facts and circumstances of the case the accused party cannot be held to be aggressor and there is reasonable doubt created in the alleged story of the prosecution case and the benefit of which is to be given to the accused party only. Accordingly the points Nos. 2, 3 and 4 are not proved beyond any reasonable doubt and therefore the same are hereby answered in the negative."

11. We have given due consideration to the evidence available on record in the light of the arguments addressed by the learned counsel for the parties, complainant has filed the present appeal against the acquittal of the accused/respondents, it needs no reiteration that there is marked difference between appraisement of evidence in the appeal against the conviction and appeal against the acquittal. In appeal against conviction appraisal of evidence is done strictly and in appeal against acquittal the same rigid method of appraisement is not to be applied, as there is already findings of acquittal given by the trial court after proper analysis, appreciation of evidence on record. In the acquittal appeal, interference is made by the Court only when it appears that there has been gross misreading of evidence, which amount to miscarriage of justice. In an appeal against acquittal, this court would not, in principle, ordinary interfere and instead would give due weight to the findings of the Court acquitting the accused. The court would not interfere with acquittal merely because of re-appraisement of evidence it comes to the conclusion different from that of Court acquitting the accused provided both the conclusions are reasonably possible. Ordinarily, scope of appeal against acquittal of accused is considerably narrow and limited. The criteria laid down for appeal against acquittal is entirely different than the criteria of hearing of appeal against conviction. Reliance is placed on the case of Ahmed Usman and 2 others v. The State (1992 SCMR 489).

12. It appears that in the instant case, the learned trial Court has elaborately discussed each and every point involved in this case. It has been observed by the trial Court that the allegations were generalized in nature and there were material contradictions in the evidence of the prosecution witnesses with regard to the manner of the incident. It has also been observed by the trial Court that improvements have been made by the PWs to strengthen the prosecution case. Contradiction between ocular and medical evidence has also been highlighted by the trial Court. It has also been observed that PWs stated that Sher Afsar died on the way to the hospital but on the same point Doctor Muhammad Rafique deposed that injured was brought in the hospital at about 7:55 a.m. and he died in the hospital at 9:15 a.m. Trial Court has also considered that no independent witness was examined by the prosecution though they had gathered at the time of incident. Trial Court has rightly disbelieved evidence of PWs Sardar Ali and Abdul Wajid on the ground that they could not establish their presence at the time of incident. PWs were closely related to the deceased and interested independent corroboration was lacking in the case. Sound reasons have been assigned by the trial Court while disbelieving evidence of PW Muhammad Wajid on the ground that he had also made improvements at the trial. Trial Court has also considered the aspects of the counter version of the cases. Case against the respondents/accused was lodged by Muhammad Zahir bearing Crime No.35 of 1980, whereas counter case bearing Crime No.36 of 1980 was lodged by respondents/accused Shah Saeed against complainant Muhammad Zahir. Trial Court has observed that both the parties sustained injuries in the incident but complainant suppressed injuries, which were received by the respondents/accused. Recovery has also been disbelieved by the trial Court for valid reasons. Trial Court has also held that more number of injuries sustained by deceased could not be sufficient to hold that respondents/accused were aggressors. Trial Court could not exclude possibility that respondents/accused acted in their self-defence. Clear finding has been recorded by the trial Court that there was no evidence that respondent/accused were aggressors. The above defects in the prosecution case were considered by trial Court and rightly benefit of doubt was extended to respondents/accused. Trial Court has appreciated evidence according to settled principles of law. There were many circumstances, which created doubt in prosecution case. Needless to emphasize that accused were entitled to be extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story. The reliance is placed on the case of Tariq Pervaiz v. The State (1995 SCMR 1345). The Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

13. The principle of appeal against conviction and acquittal are altogether different. Accused in an appeal against acquittal earned double presumption of innocence, one before trial and other after acquittal and for reversal of acquittal of accused appellant had to bring on record that the evidence, which had been brought on record had not been properly considered and the order of the trial Court was fanciful, perverse and not in accordance with law. Reliance is placed on a case reported as Mirza Noor Hussain v. Farooque Zaman and 2 others reported in 1993 SCMR 305, wherein it has been observed as under; - "that trial court's judgment having been supported by sound reasons Supreme Court could not substitute its own findings in place thereof unless it reached the conclusion that the .findings of the trial Court as well as those of the High Court were "artificial, shocking, ridiculous, based on misreading of evidence and leading to miscarriage of justice. No legal error was found in the judgments of the lower forums after scanning the evidence. Appeal against acquittal of accused was dismissed accordingly."

14. It is an established principle of law that on the examination of the order of acquittal as a whole credence should be accorded to the findings of the trial Court whereby the accused had been exonerated from the charge of a commission of the crime. An order of acquittal can only be interfered with if the same is found unreasonable, perverse and manifestly wrong. The obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal as laid down in a case of Munawar Shah v. Liaquat Hussain and others (2002 SCMR 713) wherein it has been held as under:- "

9. Be that it may, the ordinary scope of petition or appeal against acquittal of the accused/respondents is considerably narrow and limited. On the examination of the order the acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime. It is an established principle of law that obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from that against acquittal because presumption of double innocence of the accused is attached to the order of acquittal."

15. In the light of what has been discussed above, we have come to the conclusion that the Judgment of acquittal passed by trial Court in the instant case is based of correct appreciation of evidence and application of law, hence does not require any interference in appeal. Learned counsel for the appellants has failed to point out any misreading or non-reading of evidence or the material, which has not been taken into consideration by the learned trial Court while passing impugned Judgment.

16. For the above stated reasons, Appeal lacks merit. Accordingly, it is dismissed. SL/M-113/Sindh Appeal dismissed.