Witness had identified the culprits on torch lights--Validity--Complainant and prosecution witnesses did not produce the torches before police immediately but the same were produced after 10 days of the incident.

 PLJ 2011 SC 364

Acquittal Appeal--

----No evidence or misinterpretation of evidence--Miscarriage of justice--An acquittal appeal and consideration for deciding instant appeal is quiet different from consideration of appeal against conviction--In acquittal appeal, basically, it is to be seen whether the judgment is perverse, fanciful, speculative, artificial finding based on the evidence or misinterpretation of evidence or conclusions drawn by Court are foolish resulting in miscarriage of justice.         [P. 366] A

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Conviction and sentence recorded against accused by trial Court--High Court, acquitted the accused vide short order--Reason could not be recorded by trial Court--Challenge to--Validity--Conflict between medical and oral evidence--Deceased was immediately taken and from the canal after dead body was thrown in it--Medical evidence did not support the plea of prosecution--M.O opinioned that deceased was laying in water for about 2 or 4 hours before the start of postmortem examination--Medical Officer found wrinkles present on palmer aspect of the hands of deceased--Doctor formed the opinion that dead body was laying in the water for a long period--If witnesses would had been present as alleged by them and they had immediately taken out the dead body from the canal then the medical evidence would had been quiet different but the medical evidence had contradicted rather falsified the stand taken by eye-witnesses--Held: Presence of the eye-witnesses at the scene of incident just after incident appears to be highly doubtful--Leave refused.           [P. 367] B & C

Appreciation of Evidence--

----Scence of incident could not be ruled out--Incident took place near the water pumping machine, which was at a distance of 150 or 200 paces, whereas according to prosecution witness the said water pumping machine was at a distance of half kilometer from their house--If complainant party had heard the cries they would had taken some time to reach the place of incident and by that time the incident must had ended because no body would like to be present more than necessary after commission of offence as incident must had completed within few minutes--Possibility of late reaching the eye-witnesses at the scene of incident could not be ruled out, which fact had been supported from M.O. because of the fact that dead body was laying in water for a considerable long period.     [P. 367] D

Torch Lights--

----Recovery of torch light--Effect of--Delay in producing torch before police--Witness had identified the culprits on torch lights--Validity--Complainant and prosecution witnesses did not produce the torches before police immediately but the same were produced after 10 days of the incident.       [P. 367] E

1997 SCMR 209.

Mr. Muhammad Kassim Mirjat, ASC and Mr. Ghulam Qadir Jatoi, AOR for Petitioner.

Mr. Mehmood A. Qureshi, ASC and Mr. Mazhar Ali B. Chohan, AOR for Respondents No. 1 & 3.

Mr. Zafar Ahmed Khan, APG Sindh for Respondent No. 2.

Date of hearing: 1.2.2010.

 PLJ 2011 SC 364

[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C.J.,

Rahmat Hussain Jafferi and Ghulam Rabbani, JJ.

BASAR--Petitioner

versus

ZULFIQAR ALI & others--Respondents

Crl. Petition No. 86-K of 2009, decided on 1.2.2010.

(On appeal from order dated 14.7.2009 of High Court of Sindh at Karachi, passed in Criminal Appeal No. 220 of 2008).

Order

Rahmat Hussain Jafferi, J.--On 09.02.2002 at about 1:30 a.m., the complainant Basar and PW Noor Muhammad were sleeping in their house, when they heard cries coming from Jaffar Wah Canal, therefore, they went there with their torches. When they reached near the said Canal they saw the respondents Khadim Bhatti armed with hatchet, Zulfiqar Bhatti armed with revolver and Younis Bhatti armed with iron rod. Within their sight the accused caused injuries to the deceased Khair Muhammad, who after receiving the injuries fell on the ground. Thereafter, the respondents threw the dead body of Khair Muhammad deceased into the Canal and ran away, which was taken out by the PWs after the departure of the accused. The motive behind the incident was a quarrel over the land.

2.  At the trial, the prosecution relied upon the ocular testimony of the complainant Basar and PWs Noor Muhammad and Faiz Muhammad, who also reached at the place of incident on hearing cries. The trial Court relying upon the said evidence convicted the respondents for offence punishable under Section 302(b), PPC and sentenced each of them to suffer imprisonment for life and fine of Rs. 1,00,000/- or in default thereof to undergo RI for six months with benefit of Section 382-B, Cr.P.C., vide judgment dated 16.10.2008. On appeal, however, High Court of Sindh, Karachi set aside the judgment of the trial Court and acquitted the respondents, vide short order dated 14.07.2009 but the reasons could not be recorded by the learned Judge, as by that time he ceased to be the Judge of said Court. The complainant was dissatisfied with the said short order therefore he has filed the present petition for the grant of leave to appeal.

3.  We have heard learned counsel for the parties and perused the record of this case very carefully. At the outset, it is pointed out that this is an acquittal appeal and consideration for deciding this appeal is quiet different from consideration of appeal against conviction. In acquittal appeal, basically it is to be seen whether the judgment is perverse, fanciful, speculative, artificial finding based on no evidence or misinterpretation of evidence or conclusions drawn by the Court are foolish resulting in miscarriage of justice.

4.  We have gone through the evidence with the assistance of learned counsel for the parties and find that there is a conflict between the medical and oral evidence, which has seriously been challenged by learned counsel for the respondents. According to the prosecution case, the deceased was immediately taken out from the Canal after the dead body was thrown in it. The medical evidence does not support the above plea of the prosecution, as the Medical Officer formed the opinion that the deceased was laying in water for about 3 or 4 hours before the start of postmortem examination, which was started at 12:00 noon and finished the same at 1:30 p.m. on the date of incident. According to the prosecution, the incident took place at about 1:30 a.m. as such it appears that whole night the dead body remained laying in the water, therefore, the Medical Officer found wrinkles present on the palmer aspect of the hands of the deceased. On the basis of examination of dead body, the Doctor formed the opinion that the dead body was laying in the water for a long period. If the witnesses would have been present as alleged by them and they had immediately taken out the dead body from the Canal then the medical evidence would have been quiet different but the medical evidence has contradicted rather falsified the stand taken by the eye-witnesses.

5.  Furthermore, the complainant alleged that the deceased had taken food at 9:00 p.m. before leaving the house but the Medical Officer found semi-digested food in the stomach. According to him the deceased might have taken food two hours before his death. This also falsifies the stand of the complainant and the eye-witnesses.

6.  The presence of the eye-witnesses at the scene of incident just after the incident appears to be highly doubtful, as according to the complainant, the incident took place near the water-pumping machine, which is at a distance of 150 or 200 paces, whereas according to PW Noor Muhammad the said water pumping machine was at a distance of 1/2 kilometer from their house. Even if the complainant party had heard the cries they would have taken some time to reach the place of incident and by that time the incident must had ended because no body would like to be present more than necessary after commission of offence as the incident must had completed within few minutes. Therefore, the possibility of late reaching the eye-witnesses at the scene of incident could not be ruled out, which fact has been supported from the Medical Officer because of the fact that the dead body was laying in the water for a considerable long period.

7.  It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and PWs did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8.  Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.

9.  As regards the short order, suffice it to say that the same will be treated as final order in view of the law laid down by this Court in the case of "State v. Asif Adil (1997 SCMR 209)", wherein it was observed as under:--

"We are inclined to hold that the short orders under reference passed by the above Division Bench of the High Court of Sindh, which were duly signed and pronounced by the learned Judges, for all intents and purposes in view of the situation obtaining, are final orders. The same cannot be set aside and the cases cannot be remanded for re-trail of the accused who stand acquitted in some of the above appeals by the High Court and in some of the appeals by the trial Court as well as by the High Court. Our above view is supported by a well-settled proposition of law that a party should not be made to suffer on account of an act/omission on the part of Court or other State functionaries. In this regard, reference may be made to the case of Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859, the case of Fateh Khan v. Boze Mir PLD 1991 SC 782, the case of Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012 and the case of Sherin and 4 others v. Fazal Muhammad 4 others 1995 SCMR 584."

10. In the light of what has been discussed above, the present petition has no merits and the same is therefore dismissed. Leave refused.

(R.A.)  Leave refused.