Mst. AISHA BIBI vs THE STATE and others

1. This criminal/acqutual appeal under section 417, Cr.P,C. arises o of the order dated 2-9-1999, whereby the learned IIIrd Additional Sessions Judge, Karachi South, acquitted two respondents namely Sohail Masih and Jamshed Masih who were involved in F.I.R. No, 5 of 1997 under section 302/34, Qisas and Diyat Ordinance of Police Station, Mehmoodabad, Karachi.

2. The brief facts of the case are that on 10-1-1997 one Pervez Masih lodged a report under section 154, Cr.P.C. which was subsequently converted into F.I.R. No,5 of 1997 alleging that on 9-1-1997 his younger brother Anwar Masih, a labourer was taken away by two unknown boys from his house on the pretext of providing a job of whitewashing. Subsequently, at 8-00 a.m. on 10-1-1997 he came to know that dead body of his brother was lying in Gali No,7, Sector "H" Manzoor Colony, Karachi. The dead body was recovered which had dagger injuries on various parts of the body. Police took up lodged the said F.I.R.

3. During investigation the police arrested the two respondents/accused and after completing the formalities submitted challan before the trial Court.

4. On 15-4-1997 the trial Court framed the charge against two appellants under section 302, P.P.C. read with section 34, P.P.C., to which they pleaded not guilty and claimed to be tried.

5. The prosecution in support of its case examined Mst. Aisha, mother of the deceased and complainant Pervez Masih as Exh.11. Complainant Pervez Masih as Exh.12, Salamat Masih a witness who had seen the deceased going with two respondents/accused as Exh.18, Rehmat Masih as Exh.19 a Mashir of dead body and inquest:, Manzoor Masih as Exh.23, Mashir of arrest of appellants, recovery of blood-stained Banyan, and recovery of crime weapon i.e, Chhurri. Bashir Ahmed, Inspector, Special Branch as Exh.24, who investigated the case. Samuel Masih as Exh.25, Akbar Masih as Exh.26 who are claimed to have seen two respondents/accused alongwith deceased. The former was allegedly threatened by the appellants on the next day to disclose having seen the deceased with them. Dr. Nawaz Ali Panhwar as Exh.28 who "conducted post-mortem of the dead body. Thereafter the prosecution closed its side.

6. The respondents/accused in their statement under section 342, Cr.P.C. denied the allegations. They did not opt to examine themselves on oath in disproof of the charge, as provided under section 340(2), Cr.P.C. Ultimately, the learned trial Court passed the impugned judgment.

7. The trial Court framed the following three points for determination:--

(1) Whether on 10-1-1997. deceased Anwar Masih had died by unnatural death and was murdered as alleged by the prosecution?

(2) Whether on 9-1-1997 at about 9-00 p.m. accused Sohail Masih and Jamshed Masih took away deceased Anwar Masih from his House No,579 Street No,12, Azam Town, Nalapar Mahmoodabad, Karachi, as alleged by the prosecution?

(3) Whether during the night of 9th and 10th January, 1997 in-between 9-00 p.m. to 8-00 a.m. accused Sohail Masih and Jamshed Masih in prosecution of the common intention, caused the Qatl-i-Amd of deceased Anwar Masih by inflicting him Chhurri blows near the House No,371, Gali No,7, Sector "H", Manzoor Colony, Mahmoodabad, Karachi as alleged by the prosecution?

8. Point No,1 was not controversial and decided accordingly in affirmative. On point No,2, after examining the evidence in detail the trial Court came to the conclusion that the evidence of the P.Ws. was doubtful. Likewise, while dealing with Point No,3, it held that the case .was not free from doubt.

9. I have heard the learned counsel for the appellant and also perused the evidence brought on record as well as the relevant portions of the judgment, pertaining to the reasons for acquittal of the appellants.

10. It is to be noted, that while dealing with the appeal against acquittal, the Appellate Court is to give due weight to the opinion of the trial Judge. See case. of The State v. Abdul Ghaffar 1996 SCM R 678.

11. The case of the appellant is based mainly on the evidence of deceased last seen with the respondents; followed by recovery of the crime weapon and the blood-stained clothes including one Banyan. The prosecution also relied upon the evidence of P.Ws. Salamat Masih (Exh.18), Akbar Masih (Exh.26) and Samuel Masih (Exh.25), who are said to have last seen the deceased with respondents/accused before the recovery of his dead body and who had allegedly been threatened by the respondents accused not to disclose the fact to any one.

12. From perusal of the impugned judgment it appears that the trial Court has discussed each piece of evidence and minutely examined the material and legal aspect of the matter. As discussed by the trial Court even the evidence of the prosecution witnesses who alleged to have last seen the deceased with the respondents suffers from contradictions and improvements therefore the same does not inspire confidence. It can therefore, conveniently be said that the learned trial Court has rightly come to the conclusion that the corroborative evidence is not of the quality which would make the evidence of deceased's last seen with the respondents reliable or connecting them with the offence.

13. In the circumstances, I do not find that the trial Court has given a perverse or wrong finding, misread or ignored the important portion of evidence. Therefore, no miscarriage of justice appears to have taken place, calling for interference into the impugned judgment.

14. The upshot of the above discussion is that the appeal is dismissed.