MUHAMMAD HANIF S/O MUHAMMAD YAQOOB (Appellant) VS SYED SAFDAR ABBAS ZAIDI & ANOTHER (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Present:

Mr. lustice Mohammad Kaim Klun Aglu Mr. lustice Amiad Ali Sahito.

Criminal Acquittal Appeal No.26 of 2020

Appellant Muhammad Hanif S/o' Muhammad Yaqoob through Mr. Muhammad Hanif Qureshi, Advocate.

Respondents Mr. Ali Haider Saleem, DPG'

Date of Hearing 17.12.2020

Date of Order 77.12.2020

TUDGEMENT

MOHAM MAD KARIM KH AN AGHA, I:- The a ppellant has assailed the impugned iudgment dated 25 11.2019 passed by the Model Criminal Trial Court (Adtlitional Sessions Judge-I Karachi East) in Sessions Case No.21 of 2018; whereby the respondent was acquitted under Section 265- H(i) Cr.P.C.

2.'Ihe brief facts of the case as narrated by the complainant Muhammad Hanif son of Muhammad Haqoob are that on 01'04'2017 he was coming back flom the house of his brother Muhamrnad Ayub along with his son Asad Hanif (tleceased) after attending Party' When he reached near the house, the deceased told him that he would come to house after getting easy load in his mobile phone' The complainant went to bed antl woke up at 0600 hours and found that the deceased was not at home. The complainant rang on his mobile phone but no one received his

1 call. He became worried, therefore, he started searching his son at various places and in the enr.i proceeded to f€ Shah Faisal colony at about 1100 hours. The duty oflicer asked him to come in the evening if his son did not

return. At about 1700 hours he received a phone call from police officer Imran of PS Al-Falah who called him at 15 AL-Falah' When he reached there the said police official matle inquiries about details of his son Asad nn,.{ lullh('r tlisclrrst'rl that ltc was shot bl accused Safiar Abbas Zaidi

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when the deceased attemPted to rob the accused and his dead body was Iying at Chipa Cold Storage from where he received the same' Thereafter' he retumetl to house.Police did not lodge his FIR, thereafter' he approached Session Jutlge Karachi East under section 22-A Cr'P'C' who passed order in his favour and issued direction to SHO PS Al-Falah for re€Jistration of FIR but police refused to lodge FIR. Thereafter, the accused challenged the order of the Sessions Judge before High Court' The High Court dismissed the petition and directed the police to record his statement under section 154 Cr.P.C. and then police recorded his statement wllich led to the lodging the FIR'

3.During investigation the I.O. found that the deceased had robbed one person r-rarnely Syed Aimal and robbed articles had been recovered from the cleceased. Syed Aimal who lived in the next street of the house of the complainant identified the deceased at Chipa Cold Storage He had loclged one FIR No.79/2017 under section 392 at fi Al-Falah' He also ic{entified the robbed articles recovereti from the accused' Moreover' the accuseci soon after he shot the deceased lodged FIR No'80/2017 under

section 393 PPC at PS Al-Falah in which he narrated the fact that he shot fired at the cleceased who attemptetl to rob him with Pistol The deceased the accused but the accused escaped unhurt then the accused shot at the

cleceased from his licensed pistol in self defence as a result of which the

cleceased becarne injured. The accused called for the police and an Ambulance. The deceased was shifted to the hosPital where he died' The

accuserl registeretl FIR of the said incident against the deceased The

present case was investigated twice but each time the l O' recommended

the case for tlisposal under "C' class The Magistrate did not aPProve the

fincling of the I.O. and took cognizance in pursuance thereof case was sent challaned. The leaned Magistrate concemed after taking cognizance as the case was up the same to the District & Sessions Judge Karachi East I above noted exclusively triable by the court of Sessiont there from the case was received to the Additional District & Sessions Judge Karachi

East

4.After usual investigahon, the formal charge was framed against accused to which he pleaded not guilty and claimed trial of the case'

5.The prosecution in order to prove its case examined 10 witnesses antl exhibited various documents and other items. The statement of accused was recordecl under Section 342 Cr.P.C in which he denied the allegations of the prosecution and stated that he had shot the deceased in self defense. He also gave evidence under oath to the same effect and called one DW in support of his defense case.

6.After appreciating the evidence on record the trial court acquitted tlre accused (herein respondent) vitle the impugned iudgment and hence, the appellant has filed this appeal against acquittal.

7.Learnecl counsel for the appellant has contended that the impugned judgment is a result of non-reading and misreading of evidence, failure to apply the relevant law, that there were contradictions ir-r the evi<lence of the PW's; that that the case of the respondent was completelv made up and in particular the failure to recover the broken glass of the car window from the scene where the deceased allegedly fired at the respondent showed that this was a concocted story and since the respondent had failed to Prove that this was a case of self defense the onus of which lay on him since he had admitted the murder of the deceased the appeal against acquittal shoulcl be allowed and the respondent convicted of the charge.

8.On the other hand learned DPG has fully supported the impugned jur.Jgment and has stated that it suffers from no legal infirmity and that the accuserS/ respondent was rightly acquitted as he had been able to Prove based on the evidence that he had acted in self defense and as such the appeal shoul,,l be dismisseci.

9.We have heard the learned counsel for the Parties, considered the eviclence on record and have gone through the impugned fudgment' .J 10. Through the impugnetl judgment the accused/ respondent has mainly been acquitted on account of the following findings at para79;

" After perusal of record and hzaing the learned counxl for both sides, t am of the uieru that tlure exists no fioth'e behind commission of premeditated murder of the deceased by tle nccused. Admittedly, thc accttsd and the dzceaxd loere nol knorun to each other. The accused u'as Present otttside the house along toith his children in his car' This

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fact is supported by ocular and cira,tmstantial eztidence' According to the accused the deceased attempted to rob him nnd tohen le sntp tlu accused tuas picking his gun he shot nt him hut tlu accused by exercising nght of self-deftnce .fired at hint, tohich hit on the frontal part of the head of the rleceasecl anrl he t'ell dorun and became citically injured' Windozo of tlu car of tht nccused was found brokzn to pieces, toltich prors tlmt it ruas broken due to fing of the deceoserl, To substantinte this fnct,tfu nccused in his de.fence produced uideo, tphich ruas prepared by media persons soon nfter the incident, in ruhich this fact ruas clenrly xen thnt side ruind screen of car of accused was broken and dead body u,as lying near thz car of tlu accuxd' Tlr decensed tpas hazting pistol for his safety, trhich was unlicensed one. Presence of ttu deceased near the house of nccuxd protes tlut lu did not come for any noble cause but pistol and he for some sinister moti?e since he toas hadng to tob him' From frred nt tht cnr of tlu accused attempting personal xarch of the deceased robbed atticbs of Syed Ajntal toere recoL,ered, tphich toas idcntified by him' Syed Ajrunl roas muggetl just pior to the incident in the same society nntl sucfu FlR toas lodged. Similarly, conduct of the accused sltotos tlat he fired after the deceased launcLud nttnck.'l'he accused roas under imminent apprehension of denth. His ptompt act by fring at the deczased not only sm,eri his life but precious tioes of his children' Tht accused immediately informed police on 15' The accased did not hnue much time to hntte tecource to public authoities for lis rescue. Tlrc nccused registered FIR of the incident with proruptttude. Tlrc accused only made one fre at the tlecensed tuhiclt shotps that hc did not cause more harm than necessary, The nccused exerciserl utmosl restraint in exercising right of self-defence. Thc circumstanhal ntidence protes thal the accused tms under immtnenl threat of funth. If he rlid not fite at the deceased, fu tpould hmte been killerl. Conrluct of the nccuxd pior to the incident, at the time of incident and soon nt'ter tlu incifunt did not shoto nny malafde on his part. Oral atidence of the accased is supported by other prosecution tt'itnesses as also t ciiiumstnntial etridence of strong charactet, rohich only prottes tlmt tlw accused shot at the deceased in self-defence 'ns there tpns no otlar moti'e for shooting the deceaxd' According to s. 96 of PPC nothing is an offence, u'hich is done in e.xercise of right of pthnte det'ence ' According to s 97 PPC right of piaate defence extends to body and property, subject to restictions as contained unds s' 99 PPC. According to s. 100 PPC tte ight of pioate defence of body extends to causing death when such an assault as

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may reasonably cause apPrelYnsion that death uill othenpise be the consequences of such assault. Case of the accuserl does not fnll toithin limitntions as prescibed undet s. 99 PPC. The accused has not committed any offence ' Tlurefore, point No.2 is anxpered as not protted" .

11.'As a matter of law as the respondent had claimed the special defense of self defense the onus shiftetl on to him to Prove that defense' After our re assessment of the evidence we find that the respondent was able to prove through cogent and reliable evidence that he acted in self defense in order to save his life for the following reasons;

(a)that the resPondent admitted that after the deceased attemPted to rob him at gun point he fired at and killed the deceased however instead of fleeing the scene he called the Police and an ambulance in order to try to save the life of the deceased which in our view is not the action of a cold bloodied murderer'

(b)that having been fired upon already the deceased was justified in returning fire in order to save his own life and that of his children

(c)that he filed the FIR with promptitude and therefore had no time to cook up a false story. That even the police had recommended the case for closure in "c" class as the IO believed this to be a case of self defense.

(cl)that he had no enmity with the deceased and had no motive to shoot and kill the deceased.

(e)that it does not appeal to reason, logic or cofiunon sense that he would commit the murder in cold blood whilst his young children were in the car and may have been endangered' I (f) that he only fired one shot which was Proportionate to the attack on him. If he wanted to kill the deceased in cold blood then he would have most likely fired more than one time and certainly would not have called for an ambulance'

(g)that he stuck to his story through out the case during his S 342 Cr.PC statement and evidence under Oath and even called one

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DW in support of his defense case who corroborated him' Hardly any PW's were cross examined as hardly any of them gave any incriminating evidence against the respondent'

(h)that DW 1 Namza Ameenduddin who is unrelated to the responclent and is not a chance witness corroborates the responclents account of the incident and in particular states that broken glass of the car was lying on the ground along with rtead body and the resPondent was also Present with his chiklren in his car. The broken glass from the car window is further corroborated by a video clipping made by media Persons.

(i)that PW 4 Asghar Ali who was the second IO oI the case gave evidence that PW 5 Syed Amjal Sohail identified the deceased who had robbed him earlier in the evening when he was shown his rieatl body in the morgue. PW 5 was Syed Amjal Sohail himself who gave evidence that he was robbed on the same nigtrt by persons on motor cycle at 8un point and he had registered an FIR in respect of the incident. In his evidence he specifically identifies the deceased as the person who had robbed him when he was shown his dead body His stolen articles were also recovered from the deceased. This evidence to a large extent corroborates the respondent's evidence that the deceased was a robber antl when the deceased attemPted to rob him at gun point and fired at him he had no option but to resort to a return of fire in self defense in order to save his life and protect the lives of his children.

0)that two pistol empties were recovered at the scene by PW 6 Ali Haider which ties in with the respondent's account of the f events regarding the firing. Namely that only two Pistol shots were fired at the scene and he also secured an unlicensed fire arm from the deceased whereas the respondent's firearm was licensed.

(k)that any contradictions that there may be in the evidence of the PW's are of not such a materiality as to offset the acquittal and

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the farlure of the prosecution to Prove its case beyond a reasonable doubt.

72 }iurthermore, rt rs settled law that ,udgment of acqurttal should not be rnterlected unless frndings are Perverse, arbrtrary, foohsh, artificral, speculatrve and ridrculous as held by the Supreme Court in the case of The State v. Abdul Khaliq and others (PLD 2011 Supreme Court 554) Moreover, the scope of tnterference rn appeal agalnst acqulttal rs narrow and hmrled because tn an acqutttal the presumphon of the innocence ts srgrrrfrcantly added to the carrlrnal rule of cnminal jurisprudence that the accusecl shall be presumetl to be tnnocent until proved guilty In other words. the presumption of innocence is doubled as held by the Supreme Court rn the above referred ludgment The relevant para is reproduced hereuncler -

"16 We have heard thrs case at a consrderable length shetchrng on qurte a number of dates, and wtth the able assrstance of the learned counsel for the parhes, have t)roroughly scanned every material Plece of evidence avarlable on the record, an exercise prrmanly necessitated wrth reference to the convictlon appeal, and also to ascertarn rf the conclustons of the Courts below are agalnst the evttlence on the record and/or rn violatron of the law In any event, before embarktng upon scrutiny of the various pleas of law and fact raiser.l from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment atainst acquittal is not the same, as atainst cases involving a conviction. In thrs behalf, it shall be relevant to mention that the following precedents provrtJe a fair, settled and conslstent view of the supertor Courts about the rules whrch shoutd be {ollowed in such cases, the drcta are

From the ratio of all the above Pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against

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acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal iurisprudence, that an accused shall be presumed to be innocent is doubled' The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such u

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ludgments should not be lightly interfered and heavy burden lies on the Prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of iudgments that interference in a iudgment of acquittal is rare and the Prosecution must show that there are glaring errors of taw and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of iustice; the acquiftal iudgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreoaet, in numbet of ilictums of this Court, it has been categoically laid iloutn that such judgment should not be interiecteil until the fitdings are pen)erset arbittary, foolish, attificial, speculatiae and ritticulous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re- appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably Perverse, suffering from ,a serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v Raia Fahim A|zal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the finclings of the Courts below lt is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals." (bold and italics added)

13.Having gone through the evidence and the impugned iudgment we find that there has been no misreacling or non reading of the evidence and that such evidence has been appreciated by the learned trial court in its proper Perspective, that the impugned iudgment is based on sound reasons and there is no question of the findings in the impugned jullgrnent being perverse, arbitrary, foolish, artificial, speculative and ridiculous for the reasons mentioned ea ier by us.

I 74. As such for the above reasons we find there is no merit in the instant appeal agairst acquittal. The Acquittal recorded by trial court in favour of the accused/ respondent is based upon sound reasons, which requires no interference at all. As such, the appeal against acquittal was dismissed vide short order dated77.12.2020.

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15, These are the reasons for our short order dated '17.7?,2020 which reads as under;

"We have heard the learned counsel for the appellant as well as learned DPG. For the reasons to be recorded later, this appeal against acquittal is hereby dismissed."

1,6. The appeal stands disposed of in the above terms. t b'L p{cs tu,/ JUSbE