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Petitioner: Dr. Zaib Siddique VS Respondent: Muhammad Arshad Zaidi and 5 others
Court Name: Sindh High Court Judge(s): Rashida Asad Title: Dr. Zaib Siddique vs Muhammad Arshad Zaidi and 5 others Case No.: Criminal Acquittal Appeal No. 81 of 2015 Date of Judgment:2020-01-21 Reported As: 2020 YLR 1476 Result: Appeal allowed
JUDGMENT
JUDGMENT MRS. RASHIDA ASAD, J.---This judgment shall dispose of instant criminal acquittal appeal filed by the appellant under section 417(2-A) of the Criminal Procedure Code, 1898 (hereinafter Cr.P.C.), being aggrieved by the judgment dated 6.2.2015 passed by Additional Sessions Judge-III, South, Karachi (hereinafter trial Court) whereby, the respondents (hereafter accused) were acquitted of charge against them under Ss. 324/337- D/148/149 of the Pakistan Penal Code, 1860, initiated on FIR No.33/2012 registered at Police Station Garden by Asif Rafique Siddiqui. 2. Succinctly stated the case of the prosecution as unveiled by complainant Asif Rang Siddiqi (PW-1) in FIR (Ex- 3-B) is that on 24.2.2012, he along with his mother Mst. Farzana Siddiqui (PW-02) and sister-in-law (PW-8) who is also appellant, was returning back to their home from Clifton in Car No.AKY040, maker Toyota Corolla, when they reached at the garden road, close to gate of police headquarter, a blue colored police mobile driven recklessly suddenly appeared from the gate of the police headquarter which prompted him to stop the car. On this abrupt situation the police personnel sitting in the rear cabin of the police mobile verbally abused to which he lightly replied and to his knowledge the matter ended and he drove to his house. At about 9:15 p.m when he reached near Aslam General Store, Saifi Building Nishter Road the said police mobile, which followed them, stopped his car and three police personnel alighted from mobile, one of them came to his side and inflicted him a riffle butt whereas the other hit the bonnet of the car with butt of his riffle. He urged them why were they beating him. In the meanwhile, the third police personnel fired a gunshot from behind the car which hit the driving seat passing through the body of his sister-in-law (PW-08), sitting on the rear seat of the car resulting in her bleeding severally. During this incident his mother got off from the car, he accelerated the car towards his building (Hussain Dislwa Garden) where he saw his cousin Ahmed standing over there, took him and moved the injured sister in law to Liaquat National Hospital. The injured was incapable for recording her statement. His car
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was also damaged and there were five persons sitting in the police mobile, who were identifiable, who caused injury to his sister in law by gunfire and manhandled/maltreated him also. On registration of the FIR the investigation was assigned to SI Shaukat Ali Abbasi. 3. After usual Investigation the respondents/accused were sent up for trial in custody, whereas accused Waseem Ahmed son of Sajjad Ahmed could not be arrested and as such was eventually declared as proclaimed offender. 4. In compliance bf section 265-C, Cr.P.C, copies of the relevant record were supplied to the accused persons vide Ex-1, and charge was framed against accused persons on 11.5,2012 vide Ex-02 and accordingly the plea(s) of the accused persons were recorded vide Ex-2-A to Ex-2-D respectively. 5. To prove the charge, the prosecution examined 11 witnesses and Muhammad Tariq SIP was examined as Court witness (Ex-20) who produced the CCTV footage secured on 24.02.2012 at about 2030 hours, saved on CD and DVD and USB as well, vide Article 20-A and 20-B. He also produced his report dated 18.9.2014 and station diaries vide Ex-20/1 to Ex-20/12. The names and gist of the prosecution evidence is as under: (i) PW-01 Asif Rafique Siddiqui, the complainant. He gave the oral narration of the occurrence and stuck to his evidence as reported in statement under S.154, Cr.P.C. which culminated into FIR which was produced by the witness. The witness also testified about arrest of accused Muhammad Arshad Zaidi, Atif Khan and Mohammad Amin on 25.2.2012 and produced memo of arrest as Ex-3-C. He also testified arrest of accused Iran Tanoli on 25.2.2012 and produced such memo of arrest as Ex-3-F. The witness also deposed about the seizure of blood stained shirt and piece of long scarf (Dupata) and produced such seizure memo as Ex-3-E. The witness also produced the memo of site inspection carried out at 07:30 on 25.02.2012 as Ex-3-D. The witness also disclosed about the recovery of crime weapon i.e. SMG vide Ex-3-G and produced its seizure memo. The witness also disclosed about the recovery of bullet projectile (sikka) from the driving seat of the car and produced seizure memo as Ex-3-H. He was cross-examined on behalf of the accused persons. (ii) PW-02 Farzana Siddiqui (Ex-4). She was an eye-witness of the occurrence. She identified the accused present in the court to be the same culprits and stuck to her statement recorded under S. 161, Cr.P.C. She was cross-examined on behalf of the accused persons. (iii) PW-03 Ahmed-ur-Rehman (Ex-05). He gave oral account of the event of arriving of the complainant along with his sister in law (injured) in front of Jehangir building and helping him in shifting the injured to Liaquat National Hospital on 24.02.2012. (iv) PW-04 Mian Bashir Ahmed (Ex-07), Head Constable posted at Headquarter CID Garden (South). He disclosed about issuance of SMG No.55081 along with 30 bullets to accused Atif and another SMG to accused Muhammad Amin from the cote at about 2100 hours on 24.02.2012. He also disclosed about the seizure of the said SMG by the I.O. and testified the seizure memo Ex-3-G already produced by PW-01. The witness was cross-examined on behalf of the accused persons. (v) PW-05 SIP Zulfiqar (Ex-08). He deposed about recording of statement of the complaint under S. 154, Cr.P.C., and registration of the FIR. He also deposed about seizure of the car and performance of other legal formalities. He testified statement under S.154, Cr.P.C., and FIR available at record vide Ex-3-A and 3-B. The witness also produced station diaries about the event and occurrence as Ex-8-A, his letter addressed to RMO Ex-8-B, progress of registration of FIR made in station diary as Ex-8/C and a letter issued to the complainant for medical treatment as Ex-8/D. The witness was cross-examined on behalf of the accused persons. (vi) PW-06 Fareed Ahmed Khan (Ex-09), a police inspector. The evidence of this witness is just confined to the arrest of accused Irfan Tanoli on pointation of the complainant, vide seizure memo Ex-3-F. This witness was cross-examined on behalf of accused. (vii) (PW-07) Malik Mohammad Adil (Ex-10), a police inspector. The evidence of this witness is also about the arrest of three accused persons namely Muhammad Arshad Zaidi, Atif Khan and Mohammad Amin at CID/ AEC on 25.02.2012 at 0400 hours on identification and pointation of the complainant who arrived at the place of arrest with SHO garden. The witness also produced the station diary entries as - Ex-10-A which reveals handing
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over the custody of said accused persons and their arrest. This witness was cross-examined 'on behalf of the accused persons. (viii) PW-08 Dr. Zaib (Ex-11), the appellant and victim of the occurrence who sustained bullet injuries. During her statement she identified accused Atif to be the same person who quarreled at spot, causing her injury by co accused, resulted into her permanent disability/paralysis. (ix) PW-09 Dr. Saadat Fatima (Ex-12). She was DMLO at Civil Hospital Karachi at the relevant time and was deputed to examine Dr. Zaib, the appellant, who was admitted in Liaquat National Hospital on 28.02.2018 as a result of receiving bullet injury. She disclosed about physical examination of the appellant (PW-08-Zaib) and about the nature and size of the injuries received by appellant and produced medico-legal report as Ex-12/ A and 12/B, declaring the injury as Jurh Jaifah. (x) PW-10 Dr. Mubarak All (Ex-13), the senior medico legal officer. This witness was posted as senior medical officer at Civil Hospital Karachi and as such on 25.2.2012 he examined complainant Asif Rafique referred by the Investigation Officer. The witness submitted medico-legal report as Ex-13/ A and 13/B respectively, describing the nature of the injuries received by complainant PW-01. He described the injuries of the complainant as Shajjah-i-Khafifah and Shajah-i-Ghairy Jaifah Damiyah and Jurh-i-jaifah Munaqillah respectively. (xi) PW-11 Shaukat Ali Ex-14, the Investigation Officer, who disclosed about the investigation and recovery of bullet projectile (Sikka) from the car, seizing of SMG and obtaining of the examination report of fire arms/ chemical examiner, recovery of CCTV footage, arrest of the three accused persons. He produced sketch dated 25.02.2012, attested copy of the cote register reflecting issuance of SMG No.55081 to accused Atif on 24.2.2012, FSL report 22.3.2012, chemical examination report 6.3.2012, photographs obtained from CCTV footage, 21 station diaries (roznamacha) as Ex-14/A to Ex-14/I. The witness was cross-examined on behalf of accused persons. 6. The accused persons were examined under section 342, Cr.P.C, wherein they conversely denied their involvement in the alleged offence and claimed to have been falsely implicated in the case at the behest of senior police officer who used to maintain relation to the relatives of the complainant. 7. The learned trial Court after evaluating the evidence available on record found that version of the prosecution and charge against the accused persons is doubtful and as such acquitted the accused persons/respondents. 8. The learned counsel for the appellant has assailed the finding of the trial Court and strongly argued that the learned trial court did not appreciate the evidence in its true and proper perspective and fell into grave error in disbelieving the statement of PW-01, PW-02 and PW08 instead the learned trial court indulged into un- necessary nitty-gritty for witch-hunting to maneuver benefit of doubt on assumptions, presumption and hypothesis. The learned counsel for the appellant also strenuously urged / that the learned trial court has conveniently ignored to the fact that evidence of the eye-witnesses is cogent, consistent and trustworthy and there seems to be no discrepancy in making disclosure about the material aspects of the events and the occurrence which unequivocally proved the high handedness, recklessness and unbefitting conduct of the police personnel who on a petty issue assaulted the law-abiding citizens and while power drunk under the police garb, caused fire arm injury to the appellant resulting her permanent disability and along with causing injury to the complainant. According to the learned counsel for the appellant the learned trial court erred in giving weight to the feeble discrepancies of the prosecution witnesses from the police department who on material aspect, though, corroborated the evidence of PW-01, PW-02 and PW-08, the victim of highhandedness of the police personnel who acted carelessly and recklessly with their common intention. Per learned counsel for the appellant there is no material contradiction and discrepancy in the evidence of PW-01, PW-02 and PW-08 who are the eyewitnesses of the offence committed by the accused persons and further they have no personal enmity or with the accused persons; that immediately after the incident the respondents/police officials were identified at the C.I.D Police Headquarter, when the then senior police officer had shown him the footage captured in the CCTV and were recognized as the same persons; that this identification cannot be discarded on account of the application of Article 164 of Qanun-e-Shahadat Order, 1984; that the learned trial Court, while disbelieving the prosecution evidence and acquitting the accused persons/ respondents, committed misreading
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of evidence which amounted to miscarriage of justice; that a reappraisal of the evidence by this Court would show a clear and manifest perversity wrong or uncalled for conclusion from the facts proved on record; that finding arrived at by the learned trial court were wholly artificial, shocking as the material evidence had been discarded and misread blatantly to an extent that miscarriage of justice had been occasioned. 9. The learned State counsel supported the appeal and the arguments of the learned counsel for the appellants and sought setting aside of the impugned judgment as the same is candidly perverse, bad in law and based on surmises, conjectures and hypothesis extending weight to the immaterial so-called discrepancies and contradictions, if any in the prosecution evidence which seems to be natural, but not fatal to the prosecution case. The learned state counsel argued that the accused persons who are police personnel, while drunk off police authority, acted carelessly and heartlessly for satisfaction of their revenge on a little hot conversation and as such they are not entitled for any mercy. 10. On the contrary, the learned counsel for the respondents conversely supported the impugned judgment and vehemently argued that the appellant (injured and PW-08), complainant PW-01 and PW-02 and the respondents were strangers to each other and since the names of accused persons/respondents do not depict in the FIR, for involvement of the latter, therefor, there should have been identification parade for determination of the real culprits of the occurrence. Per learned counsel for the respondents, instead, three respondents were arrested after short span of the time of occurrence from the office of SSP CID without there being any explanation as how and why they were implicated in the case when their names did not appear in the FIR. The learned counsel for the respondents further argued that the respondents Mohammad Arshad Zaidi, Atif Khan and Mohammad Amin were shown to the complainant by SSP C.I.D before they were nominated and arrested in the case in his presence and at the behest of their senior officers. The learned counsel for the respondents argued with vehemence that there are shocking lapses in the prosecution evidence inasmuch the prosecution has not produced evidence that the crime weapon i.e. SMG was issued to the accused Atif. Moreover, no identification parade of the accused persons was held in the Court and, therefore, the identification of the accused persons in the Court after months cannot satisfy the requirements of the law for proving of the identity of the culprits involved in the offence of assaulting the appellant (PW-08) and complainant (PW-1), thus the instant appeal is baseless and accordingly liable to be dismissed as the appellants have failed to make out the case for interference by this Court, The learned counsel further argued that the prosecution had even failed to make out the charge of common intention to attract the provisions of section 34, P.P.C. The learned counsel for the respondents relied on the following case law:- i. 1978 SCMR 49, 2000 SCMR 1859 (deals with common intention and motive). ii. 2017 PCr.LJ 535, 2015 PCr.LJ 551, 2015 MLD 1927, 2014 YLR 2191, 2019 PCr.LJ 973, 2003 SCMR 477, 2012 YLR 474, 2018 PCr.LJ 505, 2004 SCMR 249 (deals with principles of interference by High Court in an acquittal appeal). iii. 2009 SCMR 985. (about medical - evidence in support of the prosecution version). iv. 1992 SCMR 2088. 11. I have heard, considered and appreciated with great care the arguments advance from both sides and perused the record with able assistance of the learned counsel for the parties. There seems to be no cavil at all for interference by this Court in instant acquittal appeal. The case for manifest wrong perversity or uncalled for conclusion from facts is proved on record; that findings arrived at by trial court are wholly artificial and shocking; that material evidence had been discarded and misread blatantly, resulting into miscarriage of justice. 12. I, being aware, conversant and conscious of the standard evidence to prove criminal charge inasmuch as to convict accused of criminal case and that too accused of such case in an acquittal appeal, am also considerate enough to keep in mind the reality that the accused persons are police personnel or their alleged sheer accomplice acting under the garb of police service in the company and or with the police personnel. Therefore, deliberately creating or managing some flimsy or immaterial lapses, discrepancies or contradictions in prosecution's case has to be scrutinized to rule out possibility of favour to the accused persons by their own colleagues involved in the investigation and responsible for successful prosecution of the case. Such situation
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makes it obligatory for a Court to sift grain from chaff through scrutiny of the available evidence to foster or administration of complete and substantial justice to prevent a possibility of escape of a real culprit on the basis of mere technicalities of law and managed immaterial lapses in the prosecution case during the trial. 13. Considering arguments of the respective parties, examination of case record and evidence, there seems to be following core points for determination of guilt of the respondents or otherwise: i. Whether the evidence of PW-01, PW-02 and PW-08 is consistent, cogent, reliable and whether it has corroborative evidence in support thereof to establish series of events of the occurrence? ii. Whether the lapses, infirmities and discrepancies pointed out on behalf of the respondents are fatal to the prosecution case inasmuch to extend benefit of doubt emanating to the acquittal of the accused persons? iii. Whether appellant (PW-08) and complainant (PW-01) has any ill motive or reason to implicate the respondents in the occurrence / offence? 14. In light of the above formulated points it looks that the case of the prosecution against the appellants hinges upon the evidence of PW-1 (complainant), PW-02 and PW-08' (appellant) who were eye-witnesses of the occurrence and the victims/injured, allegedly at the hands of the respondents, who as per prosecution case acted recklessly, arrogantly and in unbefitting manner with the common intention culminating into the alleged offence for which the respondents have been charged. For appraisal of the evidence the first material which is to be examined is the narrative of the case of prosecution as setup and depicts in the FIR' lodged by complainant PW-01, on 25.02.2012 at 0035 hours the report/ statement under section 154, Cr.P.C. whereof was lodged at 2330 hours on 24.02.2012, recorded by PW-05 SIP Zulfiqar about an occurrence which took place at 9:15 p.m. on 24.02.2012 is reproduced hereunder:- "On 24.02.2012 I along with my mother Mst. Farzana Siddiqui and Bhabl Dr. Zeb Siddiqui wife of Atif Raffique Siddiqui were returning home from Clifton on my car No.AKY-040 Toyota Corrolla Plates Silver Colour. When I reached garden road near the gate police headquarter a blue coloured police mobile which was driven in "rashly" suddenly emerged from the gate so when I put my car on brake a police personnel sitting in the back cabin of the mobile abused me which I replied too and the matter concluded and I continued to proceed toward my home. It was about 9:15 p.m. when I reached at Nishter Road near Aslam General Store Saffi building the earlier stated police mobile after making a chase made me stop and then three personnel alighted from the mobile out of them one came on my side and hit me with the butt of the riffle. The other one repeatedly stacked the butt of riffle to my car bonnet. I asked them as to why they were beating me and in the meantime the third police official made a fire from backside of the car which bullet after crossing my car's trunk (diggi) and stomach' of sister-in-law (bhabi) hit the driving seat. My sister in law sustained injury and started bleeding. During this event my mother got out of the car and I drove my car to Hussain Disilwa Garden where I found standing my cousin Ahmed whom I informed about the incident and then we shifted my sister in law to the Liaquat National Hospital who is under treating and incapable of recording of her statement, My car is also damaged. Five persons were sitting in the police mobile whom I can identify". 15. The above stated FIR put the law into motion and at about 0400 on 25.02.2012, three accused namely Mohammad Arshad Zaidi, Atif Khan and Mohammad Amin the respondents Nos.1 to 3, respectively, were arrested from the office of CID/AEC South Karachi on the pointation, identification and in presence of the complainant as it emerged from their memo of arrest Ex-3-C. The posting of the respective accused persons at such office and their duty hours in between the time of occurrence are not denied or even disputed. Now what needs to be established by the prosecution is that the evidence of the complainant PW-01, mother of the complainant who was also in the car (PW-02) and injured lady PW-08 is consistent and coherent with the narrative of prosecution's case as set up in the FIR. It must be born in mind that the statement of complainant under section 154, Cr.P.C., (Ex-3-B) was recorded at Liaqaut National Hospital which is first place the complainant drove to get treatment of his sister in law, who sustained bullet injury in the occurrence which took place at about 9:15 p.m. in garden area, just after they crossed the gate of police headquarter garden road and had an incident of abuses and counter abuses between him and the police personnel who were sitting in the police, mobile which emerged from the gate of police headquarter. It is quite natural and understandable that
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the names of the personnel sitting in the mobile would not be known to the complainant unless they are disclosed or told to him after he looked and identified the persons in CCTV footage. In 'all fairness the arguments advanced on behalf of the respondents/accused persons that their names are not found in the FIR so their subsequent involvement and arrest in the case is ill motived and thus doubtful, does not seem to be convincing for any prudent mind. 16. Now the evidence of PW-01, PW-02 and PW-08 seems to be importantly relevant to appreciate that whether it is consistent with the narrative of the prosecution's case as set up in the FIR and whether it successfully stood to the test of cross-examination to the extent of such relevancy, The relevant extract of the VW-01 is reproduced as below: - "This is an incident of 24th February, 2012. After shopping from Hyper shopping mall from Clifton. 1 along with my mother namely Farzana Siddiqui, Bhabbi, Dr. Zeb Siddiqui were proceeding back to our house in a car driven by me. My mother was sitting next to me and on the back side my bhabi was sitting. When our car reached to the garden road, near police headquarter; I saw a police mobile was coming from the gate of police headquarter, The said police mobile came in front of the road in the middle and attempted to take the right side of the road, I had to apply brake to stop my car and my car Just stopped near to the mobile by a distance of about 1 foot. One of them while sitting in the Police Mobile called me names (galli di). The said accused I see today in the Court. Note: He has pointed out toward the accused Irfan and I replied him in the words "Kiya Hua' "(What happened). I then did not get any reply and the police mobile turned toward the right and moved away and I took my way. When my car reached near Aslam General Store, Saifi Building; at about 09:15 p.m all of a sudden the same police mobile intercepted me from the front of my car got my car stopped. They came from the behind to stop my car. 3 persons came out from the police mobile and one of them hit the butt of the riffle on the front bonnet of my car. The window glass of my car from the driving seat where I was sitting was opened and the second one started beating me from the butts of Riffle. The said accused is present in the court. Note: He has pointed out to the accused Irfan Tanoli. I was asking him why he was beating me. In the meantime the accused policeman who hit the butt of his riffle on the bonnet of my car moved towards back of my car. And at that time I heard a gunshot and same time I heard the cry of my Bhabbi and she said "bhai Jaan mujhay goli lagi hay" (got a bullet shot). She was saying she was bleeding and knowing this I got scared. Till that my mother got off from the car but my entire attention was towards my Bhabbi so I accelerated the car to get the help and reached to my Building Jehangir House; hardly 8/9 yards away from the scene of the incident. This extract of the testimony of the PW-01 (Complainant) is completely consistent to the statement made under section 154, Cr.P.C. which culminated into the FIR. 17. It appears from the cross-examination that the complainant…
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