SHAHZADO PAHORE Versus MUHAMMAD QASIM KORI
KHADIM HUSSAIN M. SHAIKH, J.--- This criminal acquittal appeal is directed against the judgment dated 15.10.2018, passed by the learned III-Additional Sessions Judge, Shikarpur, in Sessions Case No.389 of 2017, re-The State v. Abdul Qadir and others, emanating from Crime No.13 of 2017 registered at Police Station Rahimabad, Shikarpur, for offences under sections 324, 336, 337-A(v), 114, 504, 148, 149, P.P.C., whereby the respondents, namely, 1) Muhammad Qasim son of Muhammad Ayoob, 2) Gul Muhammad son of Muhammad Soomar, 3) Hizbullah son of Muhammad Ayoob, 4) Amanullah son of Muhammad Ayoob. 5) Baboo alias Hidayatullah son of Abdullah, 6) Abdul Qadir son of Samano and 7) Naimatullah son of Chand, all by caste Kori, have been acquitted of the charge.
2 Briefly, the facts of the case are that on 12.09.2017 at 1530 hours complainant Shahzado son of Muhammad Nawaz Pahore lodged his FIR at Police Station Rahimabad, District Shikarpur, mainly stating therein that their dispute with Naimatullah Kori and others over the land is going on. On the day of incident i.e. on 11.09.2017 while they were busy in their work in the land, when at about 0645 hours, accused Abdul Qadir empty handed, Naimatullah, Gul Muhammad and Hizbullah, all three having hatchets, Amanullah, Muhammad Qasim and Baboo, having lathies, came there. Accused Abdul Qadir abusing the complainant party asked them that the land belongs to them and as to why they had come to the land despite having been restrained, saying so he instigated all the other accused to cause sharp side hatchet blows to Siraj Ahmed Pahore and kill him. On this, accused Naimatullah caused sharp side hatchet blow to Siraj Ahmed on his left side of head with intention to kill him; accused Gul Muhammad also caused sharp side hatchet blow to Siraj Ahmed on his left side of head at his temporal region and accused Hizbullah also caused hatchet blow to Siraj Ahmed on back side of his head and other accused Baboo Amanullah and Muhammad Qasim caused lathi injuries to Siraj Ahmed on his back, head and other parts of his body. The complainant party raised cries and beseeched the accused in the name of Holy Quran, then the accused leaving Siraj Ahmed went away to their respective houses. Thereafter, the complainant party making arrangement of conveyance brought injured at Police Station Khanpur, where from they obtaining letter took injured to Civil Hospital, Khanpur, wherefrom injured was referred to Civil Hospital Shikarpur, and then to Civil Hospital, Larkana and the complainant leaving injured for treatment at Civil Hospital, Larkana, appeared at Police Station Khanpur and lodged the subject FIR, as is reflected from the certified copy of the subject FIR filed as Annexure"A", available at pages 11-14.
3 After usual investigation, the final challan was submitted against the accused, namely, 1) Muhammad Qasim son of Muhammad Ayoob, 2) Gul Muhammad son of Muhammad Soomar, 3) Hizbullah son of Muhammad Ayoob, 4) Amanullah son of Muhammad Ayoob, 5) Baboo alias Hidayatullah son of Abdullah, 6) Abdul Qadir son of Samano and 7) Naimatullah son of Chand, all by caste Kori, to face their trial for offence under sections 324, 336, 337-A(v), 114, 504, 148, 149, P.P.C., in the subject FIR.
4. After completing the formalities, a formal charge was framed against the above-named accused ('the respondents'), to which they pleaded 'not guilty' and claimed to be tried.
5. At the trial, the prosecution examined complainant Shahzado ('the appellant') at Ex.10, who produced FIR at Ex,.10/A; PW-2 Ali Akbar at Ex.11: PW-3 Wakeel Ahmed at Ex.12, who produced memo of site inspection, memo of injuries and clothes at Ex.12/A to 12/C; PW-4 Siraj (injured) at Ex.13; PW-5 Dr. Ghulam Asghar Manganhar at Ex.14, who produced letter and MLCs at Ex.14/A to 14/C: PW-6 ASI Nawab Ali Hulio at Ex.15, who produced photographs of injured and memo of arrest at Ex.15/A to 15/D. 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.
6. 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 15.10.2018.
7. Having felt aggrieved by the said acquittal judgment, the appellant has preferred the present appeal.
8. The learned Counsel for the appellant has mainly contended 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. The learned Counsel prays that the appeal may be allowed and the respondents may be convicted.
9. Learned Deputy Prosecutor General supporting the impugned judgment, has contended that the learned trial Court after evaluating the evidence brought on the record, has rightly acquitted the respondents; and, that there is no illegality in the impugned judgment. The respondents in present in person have contended that they are innocent and pray for justice.
10. I have considered the submissions of learned Counsel for the appellant, the learned Deputy Prosecutor General and the respondents in person, and have gone through the material brought on record.
11. 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'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".
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."
12. From a perusal of the record, it would be seen that the incident is shown to have taken place on 11.09.2017, at 0645 hours i.e. 6.45 a.m. and whereas the FIR was lodged on 12.09.2017, at 1530 hours i.e. 3.30 p.m. and there is no proper explanation for such an inordinate delay in lodgment of the FIR; PW-1 the appellant (complainant Shahzado) has disclosed the time of the incident as 1845 hours i.e. 6.45 p.m. and whereas PW-2 Ali Akbar in his examination-in-chief has stated that it was about 1700 hours when the accused came and in his cross-examination he has stated that the time of incident was 1845 hours i.e. 6.45 p.m., but in the FIR the time of incident is shown as 0645 hours i.e. 6.45 a.m.. the version of the prosecution in the FIR was that accused Naimatullah, Gul Muhammad and Hizbullah caused sharp side hatchet blows on the head of injured Siraj Ahmed and whereas in his deposition complainant Shahzado, who is not other, but is father of injured Siraj Ahmed, has deposed that "accused Abdul Qadir instigated Naimatullah to cause the injury back side of axe on his back side of head. Accused Gul Mohammad also caused injuries to Siraj Ahmed from back side of axe. Hizbullah had also caused same injury like others. All three other accused persons have also caused injuries on the back of Siraj Ahmed." And whereas PW-2 Ali Akbar, who is uncle of injured Siraj Ahmed, has deposed that "he (Abdul Qadir) instigated other accused persons namely Naimatullah, Gul Mohammad, Hizbullah, Amanullah, Baboo and Mohammad Qasim. Accused Naimatullah, Bizbullah and Gul Mohammad had caused straight injuries of hatchets upon head of injured Siraj Ahmed with intention to murder him. Accused Amanullah, Mohammad Qasim and Baboo caused lathi injuries upon other parts of body." moreover, the medical evidence reveals that injured had sustained injuries caused by sharp-cutting weapon; injured Siraj Ahmed, who is minor, had arrived at Rural Health Centre, Khanpur with letter of SHO Police Station Rahimabad at 2000 hours i.e. 8.00 p.m. on 11.9.2017, as is deposed by PW-5 Dr. Ghulam Asghar Manganhar, AMS, RHC, Khanpur, who found only three injuries on the person of injured Siraj Ahmed caused by sharp cutting weapon. PW-5 Dr. Ghulam Asghar Manganhar in his cross-examination has stated that "as per my information, I recorded the injuries as fresh, which means injuries sustained within 04 hours of my examination. As per my information injuries did not show any change in appearance". PW-5 Dr. Ghulam Asghar has further admitted that "incised wound could only be sustained if injured had sustained the injury from right side of sharp-edged weapon; that if hatchet is used from backside or reverse side, injury will be caused as sustained from hard blunt substance. I had referred the injured within one hour to Shikarpur hospital. I had given first aid to the injured." PW-4 injured Siraj has stated that "I sustained injuries in some incident about one year ago. Accused, namely, Abdul Qadir, Naimoo, Hizoo, Qadir abused me. They injured me and left me. I sustained in my head. I was present in land when sustained injuries. I was left at some Landhi (katcha hut)." In his cross-examination, he has stated "I was knowing the accused prior to happening of incident. I could not specifically nominate any of the accused persons. It is fact that after sustaining injuries by me and when I was left by accused persons, my father, mother and paternal aunt were trying to find me and they found me in some katcha hut. When I was found by my mother and other family members, I was brought home. When I was taken towards the Doctor Altaf and my aunt Sabhai were with me, I was left by the accused persons in a katcha hut/Landhi". Patently, injured Siraj Ahmed, who is star witness in this case has narrated totally different story of the incident contradicting the evidence of both the other P.Ws, namely, complainant Shahzado and Ali Akbar and thus the evidence led by the prosecution is self-destructive and self-contradictory, as it is no where mentioned in the FIR or in the deposition of complainant Shahzado, who is father of injured Siraj Ahmed and in deposition of PW Ali Akbar, who is uncle of injured Siraj Ahmed, that the accused had left injured Siraj Ahmed in Landhi (katcha hut) and his father, mother and aunt after search found him in Landhi (katcha hut). It is not understandable as to why accused Abdul Qadir instigated the other accused to cause injuries only to Siraj Ahmed and on his instigation all the other six accused caused hatchet and lathi injuries only to Siraj Ahmed, who is admittedly still a minor boy and was aged of 09 years at the time of incident, as is evident from the copy of his deposition filed as Annexure "G", available at pages 39-42, which was recorded after one year of the incident, wherein his age is recorded as 10 years, instead of doing so with the complainant and other PW, for whom the motive to commit this offence was alleged against the accused and it is also beyond imagination that complainant Shahzado and PW Ali Akbar, who are not the others, but are the real father and uncle respectively of the minor injured, did not make even any attempt to intervene into the quarrel and rescue their minor child Siraj Ahmed of such a tender age of 09 years and remained spectators; injured minor Siraj Ahmed has not stated a single word about the presence of PWs Shahzado and Ali Akbar at the time of incident and no one among them claimed to be injured. Under these circumstances, the presence of both the PWs Shahzado and Ali Akbar at the time of incident is doubtful. Injured Siraj Ahmed claimed to have been examined by Dr. Altaf Hussain, who was neither cited as witness nor was examined by the prosecution and the said PW injured has not stated about his having been examined by PW-5 Dr. Ghulam Asghar Manganhar. 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."
13. In view of what has been discussed above, this criminal acquittal appeal having no substance is dismissed.
JK/S-90/Sindh Appeal dismissed.