MOHARRAM CHHUTTO Versus QADIR BUX
KHADIM HUSSAIN M. SHAIKH, J.--- This Criminal Acquittal Appeal is directed against Judgment dated 01.02.2016, passed by the learned Civil Judge and Judicial Magistrate-II Tando Muhammad Khan in Criminal Case No.281 of 2013, re: The State v. Qadir Bux and others, emanating from FIR No.31 of 2013, registered at Police Station Mulakatiyar, for the offence under sections 504, 506, 147, 148, 149, 337- A(ii), 337-L(2), 337-A(i), P.P.C. whereby respondents Qadir Bux, Ali Ghulam, Ghulam Mustafa, Masaud, Mujeeb AlRehman and Abdul Khalique ("the respondents") have been acquitted of the charge, extending them benefit of doubt.
2. Concisely the facts of the case are that complainant Mohram ["the appellant") lodged FIR on 17.09.2013 stating therein that on 24.08.2013 at about 08:00 a.m., his brother Abdul Rehman and Ali Ghulam Chutto exchanged harsh words with each other on the rotation of water and such complaint was made by his brother to the appellant; thereafter on 30.08.2013 when the appellant accompanied his brother Abdul Rehman riding on Motorcycle reached village Suleman Soomro, where they met with Gul Hassan and Mir Hassan, with whom, they were having tea in a Hotel, in the meanwhile brother of the appellant namely Abdul Rehman left the hotel for purchasing some goods; at about 07:00 p.m. respondents Qadir Bux armed with pistol, Ali Ghulam armed with hatchet, Ghulam Mustafa armed with pistol, Masud and Mujeeb-ur-Rehman armed with lathies, and Abdul Khalique armed with hatchet, came and told the appellant's brother Abdul Rehman that today they will not spare him; respondent Ali Ghulam caused backside hatchet blow to Abdul Rehman at his head, respondent Ghulam Mustafa caused butt blows of the pistol at his head, respondent Qadir Bux caused butt blows of the pistol at his head and others parts of his body while rest of the respondents caused lathi and hatchets blows to him on different parts of his body, thereafter the respondents went away by abusing and issuing threats of murder, hence the appellant lodged the subject FIR. After usual investigation the final report was submitted against the respondents.
3. The learned Trial Court after completing all the legal requirements framed charge against the respondents, to which, they pleaded not guilty and claimed their trial. Thereafter, the prosecution examined seven witness namely PW-1 complainant Mohram; PW-2 witness Gul Hassan; PW-3 injured Abdul Rehman; PW-4 mashir Hairo; PW-5 Medical Officer Dr. Rajesh Kumar; PW-6 Investigating Officer A.S.I Akhtar Hussain; and, PW-7 Author of FIR A.S.I Imraz Hafeez. Then the prosecution side was closed. The statements of the respondents as required under section 342, Cr.P.C. were recorded, wherein they denying the allegations levelled by the prosecution professed their innocence. They neither opted to examine themselves on oath nor did they produce any witness in their defence.
4. At the conclusion of the trial and after hearing the parties' counsel, the learned Trial Court acquitted the respondents of the charge by extending them benefit of doubt vide impugned judgment dated 01.02.2016.
5. Having felt aggrieved by the aforesaid acquittal judgment, the appellant has filed this criminal acquittal appeal.
6. None is present for the appellant. There is also no intimation, although the name of learned counsel for the appellant has appeared in the daily cause list and today's date is date by Court. Record reflects that this Criminal Acquittal Appeal is pending since 17.03.2016 and after filing of this appeal, the appellant has not taken any interest in proceeding with the matter; on 28.01.2020 Mr. Ahmed Nawaz Chang, superseding the earlier Advocate for the appellant had filed his Vakalatnama for him and sought time and at his request, the matter was adjourned to 04.02.2020, when the said learned counsel for the appellant was called absent, but as an indulgence and as a last chance, the matter was adjourned for today's date with the caution to the learned counsel for the appellant to proceed with the matter on the next date of hearing, else the matter would be heard and decided in the wake of material available on record. Therefore, I proceed to decide the case in the wake of material brought on the record.
7. The learned Assistant Prosecutor General, appearing for the State has argued that prosecution has failed to prove the charge against the respondents and after appraisal of the evidence, the learned Trial Court acquitted the respondents of the charge; and, that there is no illegality in the impugned Judgment dated 01.02.2016. She prays for dismissal of instant Criminal Acquittal Appeal.
8. I have considered the submissions of learned Assistant Prosecutor General, and have gone through the material brought on record.
9. From a perusal of the record it would be seen that there was 17 days' delay in lodgment of the FIR as the incident was alleged to have taken place on 30.08.2013, while the FIR lodged on 17.09.2013 and there was no proper explanation for such inordinate delay in lodgment of the FIR, which was fatal to the prosecution case; the appellant in his cross-examination admitted that "after receiving the medical certificate from the hospital the FIR was lodged after 6-7 days....; the memo of injuries was prepared after four or five days of the injuries so there is no explanation as to why the appellant remained silent and did not lodge the subject FIR promptly after receiving the medical although certificate from the Hospital; although injured Abdul Rehman allegedly received several injuries, yet the police prepared his memo of injuries after four or five days of his receiving injuries, which adversely reflects upon the prosecution case; witness Gul Hassan in his cross-examination stated that "on the same day of lodgment of FIR my statement was recorded by the police; to a next suggestion he stated that "after two days of the injuries to the injured my statement was recorded by the police; admittedly the FIR was registered on 17.09.2013 while injured Abdul Rehman alleged to have received injuries on 30.08.2013, meaning thereby statement of the said PW was recorded before lodgment of FIR; the appellant in his cross-examination has stated that "after 2-3 days the police visited the place of incident" while mashir Hairo stated that on 18.09.2013 at 11:00 a.m. that is on the following day of lodgment of FIR, the police visited the place of incident; the appellant in his evidence deposed that "after receiving the medicolegal certificate I came to Police Station Mullakatiar for registration of FIR but police did not record my FIR and then I made application before Honourable Sessions Court, Tando Muhammad Khan and by the orders of Honourable court my FIR was lodged while investigating officer Akhter Hussain Qambrani in his cross-examination stated that "the complainant has not come to the P.S. before he came with the order of Honourable District and Sessions Judge for the registration of the FIR; testimonies of these prosecution witnesses being contradictory to each other are self-destructive. Apart from the aforesaid discrepancies, infirmities and material contradictions etc, rendering the prosecution case doubtful, there are many other infirmities in the prosecution case, which need not to be discussed here just to save the space.
10. The principles for appreciation of evidence in appeals against the acquittal are now well settled in case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), wherein the Hon'be 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".
11. The learned trial Court after appreciating the evidence came to the conclusion that the prosecution has failed to prove its case against the respondents beyond a reasonable doubt and such a conclusion arrived at by the learned trial Court based on appreciation of evidence, suffering from no illegality or infirmity or perversity or even any jurisdictional defect, does not call for any interference in exercise of jurisdiction under 417, Cr.P.C. In such view of the matter, the instant criminal acquittal appeal being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 10.02.2020, whereby this Criminal Acquittal Appeal was dismissed.
JK/M-128/Sindh Appeal dismissed.