Ranjhan Abbasi (Applicant) VS Ghulam Hussain and others (Respondent)

Cr

CRIMINAL

ACQUITTAL APPEAL NO.32 OF 2006

Date of hearing: 15.04.2009

Appellant: Ranjhan Abbasi through

Mr.

Ahmed Ali Shahani Advocate

Respondent The state through

Mr.Ali Haider Dareshani, State Counsel.

J

U D G M E N T

ARSHAD NOOR KHAN, J:- By this acquittal appeal, the appellant has challenged the judgment dated 15.6.2006 passed by the learned Additional Sessions Judge Gambat in Sessions Case No.104/03 whereby the respondents No.1 and 2 have been acquitted from the charge.

The case of the prosecution as per FIR is that the complainant Ranjhan Ali is the mutawalli of dargah Gulab Shah situated at Ranipur. On 27th April 2003 the complainant was watering the flower plants at about 6:30 a.m. where Ghulam Hussain duly armed with country made pistol and Ghulam Qadir came there and interrogated from him that he was asked not to come at the tomb but he did not respond and today he should not be spared. Ghulam Hussain directly fired with his pistol with intention to kill him which hitted on his right arm and on his face. He therefore, raised cries which attracted to his brother Abdul Sattar and Ghualm Nabi alias Babar who reached at the spot and said accused decamped from there, the brother of the complainant removed him to police station from where he was referred to hospital for medical treatment. The FIR was thereafter registered on 27th April 2003. The respondent No.1 and 2 were arrested and after usual investigation challan against them was sent in court to stand trial.

After receipt of the challan the prosecution examined P.W.1- Dr.Kadam Ali MLO vide Exh.5, P.W-2 Ranjhan s/o Muhammad Achar vide Exh.6, P.W-3 Abdul Sattar s/o Muhammad Achar vide Exh.7, P.W-4 Ghulam Nabi @ Badal s/o Allah Rakhio vide Exh.8, P.w-5 Pervaiz Ahmed s/o Noor Muhammad vide Exh.9, P.W-6 Zamir Ahmed s/o Rasool Bux vide Exh.10. The prosecution closed its side.

The learned magistrate recorded the statement of respondents No.1 and 2 u/s 342 Cr.P.C. wherein they denied to have committed the present offence. After hearing of learned counsel for the parties, the learned trial court acquitted the respondents from the charge vide judgment impugned herein, hence the present appeal.

I

have heard Mr.Ahmed Ali Shahani advocate for the appellant, and Mr.Ali Haider Dareshani advocate for the state.

The learned counsel for the appellant vehemently contended that the ocular evidence available on record fully implicate the respondents which is fully supported and corroborated with the medical evidence available on record but the learned trial court did not appraised the evidence in its true perspective and wrongly acquitted the respondents from the charge as such the trial court committed an error while acquitting the respondents from the charge and since the evidence available on record is confidence inspiring and is fully implicating the respondents as such the judgment passed by the trial court may be reversed and the respondent No.1 and 2 may be convicted for the offence for which they have been charged.

Mr.Ali Haider Dareshani advocate for the state vehemently controverted the arguments advanced by the learned counsel for the appellant and has contended that the ocular evidence available on record is highly doubtful which is not supported from the medical evidence available on record. Therefore, the learned trial court rightly acquitted the respondents from the charge.

I

have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.

As per F.I.R at the alleged time of incident when the respondents came at the spot, no other witness were present but the complainant in his statement before the trial court stated that at the time of incident P.W-Abdul Sattar was present in the tomb and was reciting Holy Quran and meanwhile the respondents Ghulam Hussain and Ghulam Qadir came there and asked him as to why he did not left the tomb. Ghulam Qadir inflicted lathi blows to him which he sustained on his back and right hand and the respondent Ghulam Hussain who was armed with pistol at the instigation of respondent Ghulam Qadir fired with his pistol which hitted on his mouth which resulted in damage to his two teeths, he fell down and meanwhile his brother Abdul Sattar reached there and on arrival of his brother Abdul Sattar they decamped from there. The said testimony of the complainant is completely in derrogation with the contents of the FIR as in the FIR no where he stated that Ghulam Qadir was armed with lathi and he inflicted lathi blows to him which hitted on his back and arm and on his instigation respondent Ghulam Hussain directly fired on him. He also made improvement in his statement before learned trial court by deposing that P.W.Abdul Sattar was present in the tomb whereas in FIR he stated that he came running there after hearing his alarm. The testimony of P.W.Ranjhan is therefore, fully in derrogation with the contents of the FIR. His testimony further find material dent when in cross-examination he admitted that at the time of incident Gulam Qadir, Ghulam Hussain and he himself were present which adversely reflects on his statement to the effect that P.W.Abdul Sattar was already present in the tomb and was reciting Holy Quran. He further admitted in cross-examination that Abdul Sattar and Ghulam Nabi were reciting Holy Quran in the tomb, whereas in the FIR he has not stated about presence of Ghulam Nabi at the spot. He further admitted in cross-examination that his second version which was recorded on the same day of registration of FIR was correct which totally collapse the case of the prosecution because he himself deviated from the averments contained in the FIR. He further admitted in his cross-examination that previous litigation is going on in between him and respondent Ghulam Hussain. His admission also badly reflect on his testimony. The oral testimony of the complainant shows that he has made material improvements in his testimony before this court which is not in consonance with the averments contained in the FIR. His brother PW Abdul Sattar deposed about the incident and disclosed that on the day of incident he was present in the tomb where Ghulam Qadir, and Ghulam Hussain who were armed with lathi and pistol respectively came there and Ghulam Qadir inflicted lathi blows to his brother and Ghulam Hussain directly fired on his brother who sustained injury on his mouth and right arm and they raised cries which attracted to the by-passers and on their arrival the respondents decamped from there. He took his brother Ranjhan to police station to lodge the FIR who referred the injured to hospital. In cross-examination he admitted that direct complaint against the respondents and other persons was subjudice before the judicial magistrate. He further admitted in cross-examination that 20/25 persons were available in the tomb who witnessed the occurrence but they had not intervened. The testimony of PW Abdul Sattar is not in consonance with the contents of the FIR as well as the contents of the statement of complainant Ranjhan. P.W. Ghulam Nabi deposed that on 27th April 2003 at about 6:30 a.m. he alongwith P.W. Abdul Sattar who was present in dargah where respondent Ghulam Hussain duly armed with pistol and Ghulam Qadir duly armed with lathi came there and beaten to Ranjhan who is the mutawalli of the said tomb, while he was watering to flower plants and respondent Ghulam Qadir caused lathi blow to Ranjhan and instigated to Ghulam Hussain to fire at him whereupon he fired at Ranjhan which hitted on his head and upper portion of the mouth. The testimony of P.W.Ghulam Nabi is also in conflict with the testimony of PW Abdul Sattar and PW Abdul Sattar no where in his statement before the trial court has deposed that PW Ghulam Nabi was present at the time when he was reciting Holy Quran. Even the testimony of PW Ghulam Nabi shows that some other persons were present at the time of incident but the name of those independent persons have not been disclosed by the complainant or by PW Abdul Sattar. The ocular evidence, as discussed above and deposed by the PWs is therefore materially contradicted with each other which adversely reflects on the case of the prosecution and creates a reasonable doubt in the case of the prosecution. The medical evidence available on record shows that the complainant sustained as many as three injures on his arm and in cross-examination the MLO admitted that the injuries on the arm of the injured were the result of penetration of sharp article. The medical evidence therefore, shows that the injuries sustained by the complainant on his arm were the result of use of sharp edged weapon but all the prosecution witnesses have deposed about sustaining of the arm injuries by the complainant by hard and blunt substance like lathi are in conflict with the ocular evidence available on record.

After appraisal of whole evidence on record I am of the firm opinion that the learned trial court appraised the whole evidence available on record and found it shaky and in sufficient to convict the respondents and I do not find any illegality or infirmity in the judgment passed by the learned trial court, the appeal has therefore, no merit. The appeal was dismissed in the morning after hearing of learned counsel for the parties, for the reasons to be recorded later on and these are the reasons for the same.

JUDGE

Imran