KHAMISO KHALTI Versus MITHO BHANGWAR
KHADIM HUSSAIN M. SHAIKH, J .---This criminal acquittal appeal is directed against the judgment dated 15.02.2010, passed by the learned Assistant Sessions Judge, Kashmore in Criminal Case No.34 of 2006, re-The State v. Mitho Bhangwar and others emanating from Crime No.30 of 2006 registered at Police Station Buxapur, for offence under sections 324, 337-H(2), 148, 149, P.P.C., whereby the respondents, namely, 1) Mitho son of Ghulam Fareed, 2) Nizam son of Rasheed, 3) Zafarullah son of Ahmed, 4) Rehmatullah son of Ali Nawaz, 5) Shoukat son of Mitho, 6) Rehman son of Ali Nawaz. 7) Ahmed son of Saindad, 8) Mohammad Hassan son of Rasheed, 9) Ali Panah son of Rasheed, 10) Nasrullah son of Ahmed, 11) Ghulam Nabi son of Alin Nawaz, 12) Ameen son of Dilijan, 13) Mehar Gul son of Lashar, 14) Gulan son of Mohammad Qadir, 15) Mujahid son of Soori, 16) Rasheed son of Saindad, 17) Hidayatullah son of Ghulam Fareed, all by caste Bhangwar, 18) Abdul Aziz son of Nawab Khan, 19) Abdul Majeed son of Nawab Khan, 20) Abdul Waheed son of Abdul Aziz, 21) Abdul Wahab son of Abdul Aziz, 22) Abdul Ghaffar son of Allahwarrayo and 23) Ayaz son of Sattar, all by caste Sanjrani, have been acquitted of the charge.
2. Briefly the facts of the case are that on 22.03.2006. at 1620 hours, complainant Khamiso Khalti (`the appellant') lodged his FIR at Police Station Buxapur, stating therein that there is dispute between complainant party and Abdul Majeed and Abdul Aziz Sanjrani over the demarcation of the land shown in the FIR and in this respect a civil suit between the parties is pending in the Court of Senior Civil Judge, Kandhkot, wherein stay is operating. On the day of incident, the appellant along with his cousin Fouji Shah Dost and Pir Bux were standing in their land on eastern side of house of Saifal Khalti, when at about 7.30 a.m., accused persons namely, Ahmed Rasheed Mitho Hidayatullah, Mohammad Hassan, Ali Panah, Nizam, Nasrullah, Zafarullah, Shoukat, Ghulam Nabi, Ameen. Gulan, Rehmatullah. Mehar Gul, Mujahid Rehman, all by caste Bhangwar, Abdul Aziz, Abdul Majeed, Abdul Waheed, Ayaz, Abdul Ghaffar, Abdul Wahab, all by caste Sanjrani, residents of Deh Maloo Khan and four unknown culprits with their open faces, all armed with guns, came on tractor along with plough and tried to plough the land. The complainant party restrained the accused persons from doing so asking them that stay of the Court is operating, to which accused Mitho Bhangwar fired from his gun at the appellant's cousin, namely Shah Dost, which hit him, who after raising cry fell down: thereafter accused Hidayatullah fired from his gun, which hit his cousin Piran Bux, who fell down, thereafter all the accused persons fired upon the complainant party, who saved themselves by falling on the ground. On the fire shots villagers came running there and they beseeched the accused in the name of Almighty Allah, on which the accused persons ran away. After the departure of accused persons, the appellant sent injured Shah Dost and Piran Bux to Police Station Buxapur and after getting letter from the police station the injured Shah Dost and Piran Bux were taken to Buxapur Hospital and the appellant stayed in the Otaq of Lal Khalti. At about 11.30 a.m. the above-named accused again came there. Accused Ahmed fired from his gun at the appellant's cousin, namely Luqman, which hit him accused Abdul Majeed Sanjrani fired from his gun, which hit his cousin namely Mehar Ali, accused Mohammad, Abdul Aziz Sanjrani fired from his gun which hit his cousin, namely, Jamal, who fell down after raising cries. Thereafter, all the accused persons making firing and creating harassment went away along with the tractor. The appellant found Luqman having injury on thigh of his right leg and calf of left leg, Jamal having injury on left foot and Mehar Ali having injury on left knee. The appellant after arranging vehicle took the said injured persons to Police Station Buxapur and then after obtaining letter for first aid took them to Buxapur Hospital. After the treatment of injured persons, the appellant went to the police station and lodged the subject FIR. After usual investigation, the accused ('the respondents') were sent up with the challan to face their trial for offence under sections 324, 337-H(2), 148, 149, P.P.C., in the subject FIR.
3. After completing the formalities, a formal charge was framed against the above-named respondents, to which they pleaded not guilty and claimed to be tried.
4. At the trial, the prosecution examined PW-1 Medical Officer Dr. Mohammad Younis at Ex.12, who produced provisional medico-legal certificate of injured Luqman, final medico-legal certificate of injured Luqman, provisional medico-legal certificate of injured Jamal, final medico-legal certificate of injured Jamal, provisional medico-legal certificate of injured Mehar Ali, final medico-legal certificate of injured Mehar Ali, provisional medico-legal certificate of injured Shah Dost, final medico-legal certificate of injured Shah Dost, provisional medico-legal certificate of injured Piran Bux, final medico-legal certificate of injured Piran Bux at Ex.12-A to 12-J; PVV-2 HC Murad Ali at Ex.13; PW-3 PC Riaz Ahmed at Ex.14: PW-4 the appellant (Khamiso) at Ex.15. PW-5 injured Piran Bux at Ex.16; PW-6 PC Jhando Khan, mashir of arrest at Ex.17; PW-7 SIO/Inspector Mohammad Bachal at Ex.18, PW-8 injured Mehar Ali at Ex.19; PW-9 injured Mohammad Luqman at Ex.22; and PW-10 Hakim Ali at Ex.24. After closure of prosecution side statements of the respondents were recorded under section 342, Cr.P.C. wherein they denied the prosecution allegations and professed their innocence.
5. At the conclusion of trial and after hearing the parties' counsel, the learned trial Court acquitted the respondents of the charge, extending them benefit of doubt vide impugned judgment dated 15.02.2010.
6. Having felt aggrieved by the said judgment. the appellant Khamiso Khalti has preferred the present appeal.
7. It is, inter alia, contended by the learned Counsel for the appellant that the learned trial Court has not properly appreciated the evidence brought on record, that the prosecution has proved its case against the respondents beyond reasonable doubt, and, that the impugned judgment passed by the learned trial Court is illegal. Learned counsel prays that the appeal may be allowed and the respondents may be convicted.
8. Learned Deputy Prosecutor General and the learned advocate for respondent No.1 supporting the impugned judgment have contended that the learned trial Court has acquitted the respondents after evaluating the evidence.
9. I have considered the submissions of the learned counsel for the appellant, the learned advocate for respondent No.1 and the learned Deputy Prosecutor General, and have gone through the material brought on record.
10. The principles for appreciation of evidence in appeals against the acquittal are now well settled. In the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), the Hon'ble apex Court of Pakistan has observed that:-
"Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".
In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."
11. From a perusal of the record, it would be seen that the incident is shown to have taken place on 22.03.2006 at 7.30 a.m. and whereas the subject FIR was lodged on 22.03.2006 at 1620 hours and there is no plausible explanation for such delay in lodgment of the FIR, respondent Mohammad Mithal had lodged his FIR being Crime No.29/2006 at the same Police Station Buxapur, for offences under sections 324, 337-H(2), 148, 149, P.P.C. on 22.03.2006, at 1530 hours i.e. 50 minutes prior to the lodgment of the subject FIR, for the same incident and, thus there was case and the counter-case lodged by both the parties against each other and as to who was aggressor and as to who was aggressed upon, has not been established by the prosecution, as both the parties claimed that the land, where the incident took place, belonged to them and the fact of lodgment of the FIR by respondent Mohammad Mithal was suppressed by the complainant in the subject FIR, though it was subsequently lodged; the accused in the counter Sessions Case No.35 of 2006 re-The State v. Muhammad Siddique and others have been acquitted of the charge vide judgment dated 15.02.2010 and no appeal against that acquittal is stated to have been filed; in his deposition complainant Khamiso has stated that he sent both the injured Fouji Shah Dost and Piran Bux along with one Alif Chachar to Police Station Buxapur, but Alif Chachar was neither cited as witness nor was examined by the prosecution; complainant Khamiso in his cross-examination has stated that he produced injured (injured and other witnesses) before the police after 3 or 4 days of the incident for recording their statements under section 161, Cr.P.C. but police did not record their statements. PWs injured Piran Bux. Mehar Ali and Luqman have deposed that their statements were not recorded by the police; admittedly, no crime weapon was recovered despite the accused's having remained in custody and even blood-stained clothes of injured, persons were not secured; PW complainant Khamiso has stated that police arrived at the place of incident after 10/15 minutes after 1130 hours and he has admitted that he has not stated in his FIR that the police came at the place of incident, who took injured persons to police station along with himself and whereas the prosecution case is that complainant Khamiso had sent both the injured through one Alif Chachar and he (complainant Khamiso) stayed at the Otaq of Lal Khalti; he stated that at about 1230 hours he reached at police station, he has further stated that police spent about 25/30 minutes in examining the injuries of injured persons, namely, Luqman, Jamal and Mehar Ali and preparing mashirnama of injuries and issued letter for treatment, but it is strange enough that nobody among them, had lodged FIR and there was no valid reason for not lodging the FIR by them: PW complainant Khamiso has stated that he contacted his cousin Rehmatullah and after consultation they both afterwards came at the police station where at about 1620 hours he lodged the FIR, and, thus the subject FIR was lodged by the complainant after consultation and deliberations and under the given circumstances possibility of cooking up story and changing nature of the office and false implication of the respondents could not be ruled out, PW complainant Khamiso in cross-examination has stated that police secured empty cartridges jointly, some of white colour and some of red colour. but those of white colour cartridges were not available with the case property in the Court; the police shown to have recovered empty cartridges separately from the two places, namely, the land and near Otaq of Lal Khalti, which were the different places away from each other and two incidents are shown to have taken place at different times i.e. 7.30 a.m. and 11.30 a.m. at two separate places, but the police mixed up the entire case property, PW complainant Khamiso has admitted that when he reached at Police Station Buxapur at 12.30 p.m. he did not lodge the FIR, that injured Luqman, Jamal and Mehar Ali were in senses, but they did lodge the FIR: that he was witness in Crime No.95/2006, under section 17(4), H.O. lodged against accused Abdul Aziz Sanjrani and others, in which they were acquitted: that police prepared mashirnama at the first place at 6.00 p.m. and after 10/15 minutes at second place and both the mashirnamas were prepared within 30/45 minutes and signatures were obtained from the mashirs at 6.30 p.m. or 6.45 p.m; PW Piran Bux has stated that he and Shah Dost were removed by one Alif Chachar to the police station and got letter of treatment of RHC Buxapur and then referred to CMC Hospital, Larkana, but police did not record his staternent under section 161, Cr.P.C.: he in his cross-examination has stated that Shahnawaz and Sultan Khalti were eye-witnesses of the incident. but they were neither cited as witnesses nor were examined by, the prosecution; that they saw the accused persons at the distance of 20 or 25 paces, some persons came over the place of incident and requested the accused, they were of Chachar community, but none among them was cited as witness; and, that only letter of treatment was issued, but mashirnama of injuries was not prepared at the police station; PW mashir Jhando Khan has stated that he identified accused Mitho, Rasheed and Gullan: he admitted that no private person was tried to be picked up as mashir, and, that departure entry was not mentioned in the mashirnama of arrest of accused; PW IO/ASI Mohammad Bachal has admitted that he had not mentioned as to how many empties were of white colour and how many empties were of red colour; he stated that he cannot identify accused Mujahid, Mehr Gul, Rehmatullah, Rashid, Nizam, Mitho, Rahman by their names: that he does not remember the location of eastern, western and southern sides of the place of wardat; and, that there was only one place of incident in this case; in his cross-examination he has stated that Otaq of Lal Khalti was situated at the distance of 150 paces away from the place of wardat and whereas PW-9 Mohammad Luqman has stated that the place of wardat was 500 - 600 paces away from the Otaq; PW 10 Mohammad Bachal has stated that they went to place of wardat in a private vehicle and driver and cleaner were private persons; that private persons driver and cleaner were not made mashirs; and. that he found accused Mehr Gul. Gullan, Mujahid, Rasheed, Hidayatullah, Abdul Aziz, Abdul Majeed. Abdul Waheed, Abdul Wahab, Abdul Ghaffar and Ayaz innocent during the investigation and they were let-off by him; PW-9 Mohammad Luqman has stated that police did not examine him; he admitted that if the accused had intention to commit their murder, they would have killed them easily: that after receiving injuries complainant Khamiso removed them on police mobile: that after treatment and proceedings from Buxapur hospital they crossed Police Station Buxapur, but did not lodge the FIR at the police station intentionally; and, that police did not record his statement under section 161, Cr.P.C: PW Mehar Ali has stated that his statement under section 161, Cr.P.C. was not recorded by the police; that police after the incident came at the place of wardat, but did not prepare mashirnama of injuries: that all the persons were within range of firing and accused persons could easily murder them: that all the three persons did not lodge FIR at Police Station Buxapur intentionally along with Khamiso. Apart from the above material contradictions, discrepancies, improvements and admissions adverse to the prosecution, rendering the prosecution case doubtful, there are many other material infirmities in the prosecution case, which need not to be discussed here just to save the time and space. The learned trial Court has acquitted the respondents extending them benefit of doubt on failure of the prosecution to prove its case against them beyond a reasonable doubt. It needs no reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. A perusal of the impugned acquittal judgment would reveal that the same is apt to the facts and circumstances of the case, which suffering from no illegality or any infirmity and misreading or non-reading of the evidence, does not call for any interference. Reliance in this context is placed on case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329) wherein the Hon'ble Supreme Court of Pakistan has held that:
"An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."
12. In view of what has been discussed above, this criminal acquittal appeal having no substance is dismissed.
JK/K-31/Sindh Appeal dismissed.