2017 P Cr (PLP)

ANWAR HUSSAIN, J.

This Acquittal Appeal is directed against the Judgment dated 06.3.1999, passed by learned VI-Additional Sessions Judge, Larkana, whereby he has acquitted the accused/ Respondents Nos. 1 to 4, by extending benefit of doubt. The Appellant/Complainant being aggrieved and dissatisfied with the impugned Judgment has filed instant Appeal.

2. Briefly the facts of prosecution case are that Appellant/ Complainant viz. Abdul Rahim, lodged Report under sections 307, 147, 148, 114, P.P.C., at Police Station Taluka, District Larkana, alleging therein that on the night of incident 04.12.1986 Complainant along with his father viz. Muhammad Ayoob, was sleeping at the "Dera" for looking after the paddy/crops, when at about 0030 hours, they heard noise; woke up and saw in the torchlight that Respondent/Accused viz. Ali Bux, having hatchet, Respondent/Accused viz Hidayatullah, empty handed, Respondents/Accused viz. Hussain, Rustam and Usman having hatchets. Accused Ali Bux extended threats to Complainant's father Muhammad Ayoob and asked the said Muhammad Ayoob that he had been helping Ghulam Nabi Kalhoro, with whom Accused had murderous enmity and that Complainant and his father will not be spared. Accused Hidayatullah instigated others, to which Accused Ali Bux, Hussain and Rustam, inflicted hatchet injuries to Muhammad Ayoub, who fell down by raising cries. Accused Usman gave blow of blunt side of hatchet to Complainant on his right hand. On cries, P.Ws. viz. Muhammad Malook, brother of complainant, Niaz Hussain and other villagers came over there having flashing torches in their hands; they on torch light also saw and identified the culprits, who on seeing the witnesses fled away. The Complainant brought his father in injured condition to Police Station, who later on succumbed to his injuries and died in Hospital. The Police submitted Challan under sections 147, 148, 302, 114 and 149, P.P.C., against the Accused/Respondents except Accused Rustam, who was let off by police.

3. After framing of formal charge, the prosecution examined Complainant viz. Abdul Rahim at Exh.8; he produced at Exh.8-A, P.Ws: Muhammad Malook and Niaz Hussain at Exh.9 and 10, respectively, P.W. Liaquat Ali, was examined at Exh.14; he produced Memos of Injuries, Place of Incident, Production of Torches, Dead Body, Inquest Report, Arrest of Accused and Recoveries of blood stained hatchets at Exhs.15 to 24, respectively. Corpse bearer/P.C. viz. Muhammad Akram, was examined at Exh.25, Tapedar viz. Arbab Ali Soomro at Exh.26; he produced Sketch of Vardat at Exh.27. Medical Officer/Dr. Abdul Sattar Abbasi, examined at Exh.28, who produced Medical Certificate of Injured/Complainant Abdul Rahim and Postmortem Report of deceased Muhammad Ayoob at Exhs.29 and

30. Investigating Officer viz. Noor Ahmed Jagirani, was examined at Exh.31 and through him a letter addressed to Medical Officer, Special Report, Inquest Report, Original Mashirnarnas of Dead Body, Arrest and Recovery and Chemical Report, were brought on record at Exhs.32 to 41, respectively. Thereafter, the prosecution closed its side vide Statement at Exh.42. Lastly the Statements of Accused/ Respondents, under section 342, Cr.P.C., were recorded at Exh.44 to 47, wherein they had denied the allegations of prosecution and neither examined themselves on oath nor lead any evidence in defence.

4. After appraisal of evidence adduced at the trial, the learned Trial Court passed the impugned Judgment and having extended benefit of doubt acquitted Respondents Nos.1 to

4. The Complainant dissatisfied with the impugned Judgment filed this Appeal.

5. Learned Counsel for Appellant contended that the Accused/ Respondents Nos.1 to 4, were promptly nominated in the FIR with specific role of causing hatchet injuries to deceased, which resulted into his death, and also causing injuries to Appellant/Complainant, who was examined, duly supported by the eye-witnesses; that Complainant's version also get support from the Medical Evidence brought on record coupled with recovery of hatchets. He further contended that prosecution has produced trustworthy evidence in the Trial Court, but the learned Trial Court, has not appreciated the evidence and erroneously extended benefit of doubt in favour of Accused/Respondents Nos.1 to 4, despite the fact that prosecution had established its case beyond any reasonable doubt at trial; there is no enmity; and the acquittal of the Respondents Nos.1 to 4, has caused miscarriage of justice. In the last he prayed that the Respondents Nos. 1 to 4, be convicted and punished.

6. On the other hand learned Counsel for Accused/Respondents No.1 to 4, strongly supported the impugned Judgment and contended that the learned Trial Court rightly extended benefit of doubt in favour of Respondents Nos.1 to

4. It was further contended that the prosecution has miserably failed to establish the charge against the Accused/Respondents Nos.1 to 4, whereas one Accused Rustam was let off by the Police and there are material contradictions in the ocular evidence. He further contended that in view of acquittal of Respondents, they have got double presumption of innocence and the Appeal is barred by time, which is liable to be dismissed. Learned counsel for Respondents placed reliance on the cases reported in 1996 SCMR 308, 1976 PCr.LJ 243 (D.B. Karachi), 1982 PCr.LJ 808 (D.B. Karachi), 1970 PCr.LJ 633 (D.B. Peshawar): 1990 MLD 1055, 1983 SCMR 1292, 1986 PCr.LJ 1066 (D.B. Karachi), 1981 PCr.LJ 434, 1985, PCr.LJ 393 (D.B. Lahore), PLD 1982 SC 88, 1985 SCMR 893 and 1998 PCr.LJ 1950. (D.B-Quetta).

7. We have heard learned Counsel for Parties and with their assistance have gone through the evidence produced by the prosecution at the trial.

8. Perusal of evidence on record shows that ocular evidence brought by the prosecution consists upon evidence of Complainant Abdul Rahim and Eye-witnesses Muhammad Malook and Niaz Hussain. On perusal of their evidence, it transpires that they have contradicted each other on very material point in respect of role of causing injuries to deceased. According to Complainant, Accused Ali Bux, gave sharp side hatchet blow on head of Deceased and while Deceased was lying on ground Accused Rustam gave him sharp side hatchet blow; whereas PW/Eyewitness Muhammad Malook (who is son of Deceased and brother of Complainant) had deposed that Accused Ali Bux, Rustam and Hussain, gave sharp sided hatchet blows to deceased. The other material contradiction is in respect of seat of injuries on the person of Complainant as according to Complainant, Accused Usman, caused him blunt side hatchet blow on his right hand and back side of neck; whereas P.W. Muhammad Malook, had deposed that Accused Usman, caused blunt side hatchet blow to Complainant Abdul Rahim, who had two injuries on his person, one on his right hand and other on his shoulder. The other P.W./Eye witness Niaz Hussain, had deposed that Accused Ali Bux and Usman, gave hatchet blow to the Deceased and Complainant respectively, but did not specify the seat of injuries to them. The other contradiction is that the Complainant deposed that Tractor, on which deceased was taken to Police Station, was brought by one boy Shamsuddin of Complainant Party, while P.W./Eye- witness Malook deposed that 2/3 persons had gone to bring the Tractor, whereas P.W./Eye-witness Niaz Hussain deposed that P.W./Eye-witness Malook had gone to bring the Tractor. These material contradictions suggest that none of the Prosecution Witnesses including the Complainant had seen the incident. Moreover, the Prosecution Witnesses Nos. 2 and 4, are the brothers and sons of Complainant and Deceased respectively, whereas Prosecution Witness No.3, is their caste fellow and neighbour, but no independent witness was examined, though as per version of Complainant many villagers had attracted to the place of offence, who have seen the incident and identified the culprits. In this regard reference is made to cases of Bashir Ahmed v. The State (1996 SCMR 308), Muhammad Sharif v. Tahir-ur-Rehman (1972 SCMR 144), and Ali Muhammad v. The State (2007 YLR 894, D.B. Kar).

9. The one more important aspect, which adversely affect the case of Prosecution is that the Police has let off the Accused Rustam and placed his name in second column of the Challan through the said Accused along with other Accused/Respondents was nominated in the FIR with specific role of causing sharp side hatchet blow to the Deceased.

10. As to recovery of hatchets, which were shown recovered from the houses of the Accused/Respondents, no independent witness of locality was associated by the police, whereas the Mashir of Recovery P.W-4, is the son and brother of Deceased and Complainant, respectively, so in view of non-compliance of provisions of section 103, Cr.P.C., the recovery of hatchets was not rightly taken into consideration by the learned Trial Judge, relying on the case of Muhammad Afzal v. The State (1983 SCMR 01). In this regard reference is also made to the cases of Yar Muhammad v. The State (1992 SCMR 96) and Mangio v. The State (1976 PCr.LJ 243, D.B.-Kar). Further the said P.W-4, is the Mashir of all the Memos i.e. Memos of Injuries, Place of Incident, Production of Torches, Dead Body, Inquest Report, Arrest of Accused and Recoveries of blood stained hatchets at Exh.15 to 24, and the said Prosecution Witness in his Examination-in-Chief has deposed that shirt produced by the Police was not the same, which was of cream colour, worn by Deceased at the time of incident, while the shirt produced in Court was of gray colour and the Torches, through which Accused were identified, were not produced in Court without any explanation and the said witness in cross-examination deposed that Memo of Injuries was prepared after 10/12 days of incident although the injuries were seen by Police on the day of incident, which all made the case of prosecution as doubtful.

11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.) 965.

12. The medical evidence is also not in line with ocular evidence. According to Complainant and Eyewitnesses, Accused Ali Bux, Rustam and Hussain gave sharp side hatchet blows to deceased; whereas medical evidence shows that there were four injuries on the person of deceased, out of which Injuries Nos.1 and 2, appeared to have been caused by some hard and blunt substance and nowhere it is mentioned in ocular version that the deceased was also caused back side hatchet blow. Version of Complainant and his witnesses is also contradictory in respect of seat of injuries on person of Complainant, as according to Complainant and Eye-witnesses/P.Ws. Accused Usman caused two blunt side hatchet blows to Complainant; one on his right hand second on back of neck, whereas, the Medical Officer showed two injuries on person of Complainant; one on right hand and another on left thumb. This contradictory medical evidence also made the case of prosecution as doubtful. In this regard Reference is made to the cases of Bashir Ahmed v. The State (1996 SCMR 308), Bagh Ali v. The State (1983 SCMR 1292), Ghulam Abbas v. M. Sadiq (2004 MLD 1900, D.B-Kar.), and Mangio v. The State (1976 PCr.LJ 243, D.B-Kar).

13. As per impugned Judgment, the prosecution has also failed to prove the, motive of the incident, as none of the prosecution witnesses had deposed anything about the motive of the incident in their evidence, and in this regard reference is made to the case of Hakim Ali v. The State, reported in 1971 SCMR 432.

14. It is settled principle of criminal administration of justice that considerations for interference in an appeal against acquittal and in an appeal against conviction are altogether different; in former it is settled law that an accused is presumed to be innocent and after his acquittal in trial or appeal he earns a double presumption of innocence i.e. first at pre-trial stage and second on the basis of judgment of acquittal by the court of competent jurisdiction; heavy burden lies on the prosecution to rebut the said presumption and judgment of acquittal can only be interfered with if it is found on the face of it as perverse, arbitrary, suffering from error of jurisdiction, mis reading or non-reading of evidence and capricious or speculative. In this regard, reference is made to cases of Muhammad Tasweer v. Hafiz Zulkarnain (PLD 2009 SC 53), Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928), Muhammad Minsha Kausar v. Muhammad Asghar (2003 SCMR 477) and Paio Khan v. Sher Biaz (2009 SCMR 803).

15. Considering all the above aspects of the case, we have come to the conclusion that the Trial Court has rightly acquitted the Accused/Respondents Nos. 1 to 4, by extending them benefit of doubt and there is no illegality, infirmity or mis-appreciation of evidence in the impugned Judgment. Therefore, the impugned judgment needs no interference by this Court. Consequently, this Criminal Acquittal Appeal is dismissed. WA/A-97/Sindh Appeal dismissed