RAJA Versus STATE
1. This criminal revision application under section 435/439, Cr.P.C. is filed on behalf of applicant Muhammad Ilyas son of Muhammad Bachal challenging the judgment, dated 21-3-1989 passed by the learned IIIrd Additional Sessions Judge, Sukkur in Sessions Case No.369 of 1984 whereby the respondents Abdul Aziz and Imdad Ali both sons of Fazaldin and Fazaldin son of Atal were acquitted of the charge for the offence under section 302/34, ir.P.C.
2. The incident took place on 5-11-1982 at about 7-30 p.m. near the land of Faiz Muhammad situated in Deh Maroowala, Taluka Ubauro about 8 K.M. from Police Post Reti. The report was lodged by the applicant on 6-11-1982 at 2-30 a.m. at Police Post Red which was recorded by A.S.I. Muhammad Ramzan. It was mentioned in the report that on the day of incident at evening time, the complainant (applicant Muhammad Ilyas) alongwith his cousin Muhammad Usman, his brother Karim Bux and his relative Mevo were going to their village via Railway Line Reti. At that time accused Abdul Aziz was also with them. When they reached the place of incident, Karim Bux and Mevo slowed down as they wanted to attend to the call of nature while the complainant, Muhammad Usman and Abdul Aziz proceeded ahead. At about 7-30 p.m. co-accused Fazaldin and lmdad Ali came from the side of village and confronted the complainant and his relative when suddenly Abdul Aziz told Muhammad Usman that he had deprived them of their hand therefore he will not be spared. Thereafter, Abdul Aziz stabbed Muhammad Usman with a knife on account of which the complainant and Muhammad Usman raised cries. Then Fazaldin and Imdad Aii also caused knife blows to Muhammad Usman. In the meanwhile Karim Bux and Mevo also reached there who also saw the accused causing knife injuries. Muhammad Usman collapsed and died while the accused decamped. The complainant went to the village and informed his relative Taj Muhammad who.told him that the three accused had left the village in a Datsun car and that he should lodge the report. Accordingly the complainant went and lodged the report.
3. After the registration of case, A.S.I. Muhammad Ramzan took up the investigation of the case. During the course of investigation he inspected the place of Wardat, recorded the statements of witnesses, arrested the accused from whom recoveries were also made. On the next day of arrest of accused Abdul Aziz, his judicial confession was recorded and finally after completing the investigation, the accused were challaned.
4. At the trial, the prosecution examined complainant Muhammad Ilyas, P.W. Karim Bux, P.W. Mevo, P.W. Taj Muhammad, P.W. Muhammad Ayoob, P.W. Khuda Bux, P.W. Shahzad Ali Naqvi, P.W. Amir Bux, P.W. A.S.I. Muhammad Ramzan and Medical Officer Dr. Muhammad Punhal. In their statements under section 342, Cr.P.C., the accused denied the prosecution allegations and claimed to have been falsely implicated. The accused examined defence witnesses namely, Allahdito, Muhammad Bux, Haji Karim Bux, Kambir Ali, Gahi Khan, Muhammad Munir and Shahabuddin. After the conclusion of the case, the respondents were acquitte by the trial Court.
5. It may be mentioned that the learned counsel for the applicant is a local Advocate of Sukkur and for reasons best known, he has chosen to remain absent without any intimation. The applicant is also not present while the three respondents are present, their Advocate has also not turned up though he is also a local Advocate. In these circumstances I propose to dispose of this matter with the assistance of the learned counsel for the State.
6. The R&P is available and with the assistance of Mr. Abdul Sattar Chohan, Advocate for the State, I have gone through the entire record and I have also perused the judgment delivered by the trial Court. Keeping in view the principles laid down for interfering with the judgment of acquittal, I am of the considered view that no interference is called for in this case, and therefore, this revision application merits to be dismissed for the reasons which I shall presently discuss.
7. It must be borne in mind, that this Court will be very slow in disturbing the findings of fact arrived at by the trial Court and specially so where the State has not preferred any appeal against the acquittal of the respondents. This being a revision application against the acquittal of respondents filed by a private complainant, this Court will not interfere with the judgment of acquittal unless it can be shown that the impugned judgment is perverse, or no other conclusion could be drawn except the guilt of the accused, or the judgment is based on misreading of evidence, or it is illegal resulting in miscarriage of justice.
8. The grounds taken in this revision application, are that the impugned judgment is based on misreading of evidence, the ocular evidence has been discarded solely on the ground of relationship, that the ocular account stood corroborated by the medical evidence, recovery evidence and the judicial confession of accused Abdul Aziz. In addition it is stated that the impugned judgmnet was based on conjectures and minor contradictions and finally the prayer is to set aside the said judgment and to remand the case for retrial.
9. After carefully going through the deposition of witnesses and so also the impugned judgment, the grounds taken in this revision application are without any substance. The acquittal of the respondents is based on proper appreciation of evidence and weighty reasons are given by the trial Court for discarding the ocular evidence. It will be wrong to say that the trial Court has discarded the ocular account merely on the ground of relationship of the witnesses with the complainant or the deceased. In fact there are many circumstances which have been considered by the trial Court and one such circumstance was, that independent witnesses were available but instead selective interested relation witnesses have been examined in this case. But this was not the only reason for discarding the evidence of the three witnesses namely complainant Muhammad Ilyas, P.W. Karim Bu x and P.W. Mevo. The trial Judge has given specific cogent reasons for discarding the ocular account. For instance, it was the case of the complainant when he reached Police Post Red for lodging the report he found that the dead body of deceased Muhammad Usman was already brought at the police post by the Investigating Officer A.S.I. Muhammad Ramzan and at that time accused Fazaluddin was also present. This aspect of the matter has been completely denied by the said Investigating Officer. The complainant has stated in his cross-examination that the accused continued causing knife injuries to the deceased for about 10 minutes during which the deceased was running in a circular fashion to save himself, but no blood stains in circular manner were detected. The I.O was specifically confronted with the Mashirnama and he admitted that it was not mentioned in the memo. that there was blood at different places. All the three eye-witnesses have admitted that they all alongwith the deceased and accused Abdul Aziz alighted from the train and were proceeding to their village and at that time 6/7 other persons had also got down and they were also going to the village, but they were a little ahead of them. The learned Judge has observed that it was surprising that no cries were raised and nobody from those 6/7 persons was attracted. It was also noted that there was delay of 7 hours in lodging the report which the complainant has tried to explain by stating that he went by foot to police Post Reti which was 8 K.M. away, but evidence has come on record that there were persons in the village who had motor-cycles. The complainant has also admitted that there was dispute between the father of deceased and accused Abdul Aziz over land. One fails to understand if there was such a dispute, how the complainant party could allow accused Abdul Aziz to accompany them while going to the village. Lastly, it was the case of the complainant and the two other eye-witnesses that the deceased died at the spot then and there, but the ocular evidence was contradicted by the medical evidence as in the post-mortem report it was stated the death was after one hour as such the medical evidence belied the ocular evidence.
10. The second eye-witness is P.W. Karim Bux, he is brother of complainant. He has also stated that on the night of incident I.O came with accused Fazaluddin and forcibly took away the dead body of deceased. As already mentioned, the I. O. has denied it. On his own showing, this witness was examined by the police on 22-11-1982 that is 17 days after the incident. Moreover, the accused have examined defence witness Shahabuddin of the Railway Department who produced attendance Register for the period from 23-10-1982 to 22-11-1982 which indicates that on 5-11-1982 P.W. Karim Bux was on duty as Pointsman at Railway Station Red and as per his own showing, his duty was from 8 a.m. to 8 p.m. This being the position, it is difficult to believe how P.W. Karim Bux could have been present at the time of incident and why he chose to remain silent uptil 22-11-1982 on which date his 161, Cr.P.C. was recorded.
11. The third eye-witness is P.W. Mevo, he also adopted the same line as the other witnesses by stating that I.O. took away the body. He further states what no other witness has stated, that on the next day at 12 noon time, A.S.I. Abdul Rehman brought the dead body of Usman in the village. He says when they got down from the train, about 100 persons also got down. He says that. the train reached after sunset when it was dark and they had no torch at the time of incident. According to this witness, for the first time when he heard the cries of deceased Usman, he and P.W. Karim Bux were at a distance of two and a quarter acres away and they claim to have reached the place of Wardat in four minutes. In the face of admitted fact that it was after sunset and dark, and that they were without a torch, it is difficult to believe that the said witness and P.W. Karim Bux could traverse that distance and yet be able to see the incident when there was no light.
12. Taking into consideration all the aforesaid circumstances, the learned Trial Judge came to the conclusion that the eye-witnesses have contradicted the informant and the evidence was also contradicted by the I.O They all were related when in fact independent witness namely Allahdino Mirano who is named in the F.I.R. has not been examined. The recovery of blood-stained clothes and knife from accused Abdul Aziz could not be relied upon as the same were not sent for chemical examination. The confession of accused Abdul Aziz had been discarded as the Magistrate admitted that he did not disclose to the accused his identity and he also did not ask the accused why he was making the confession. In addition, there is delay in the lodging of F.I.R. and all the accused have examined defence witnesses to show that they were not present at the time of 'Wardat.
13. From the above circumstances, it is apparent that the trial Court has properly weighed and sifted the evidence and thus reached the conclusion that the respondents were not guilty and accordingly they were acquitted. The a learned counsel for the State is also of the view that it is not a case of misreading of evidence and no fault could be found in the impugned judgment or the reasons arrived at therein.
14. In the light of my above discussion, I do not find any merits in this revision application and the same is accordingly dismissed. The respondents are on bail, their bail bonds are discharged.
15. N.H.Q./M-1872/K ????????????????????????????????????????????????????????????????? Revision petition dismissed.