IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.S-36 of 2018
Appellant/Complainant : Jan Muhammad son of Khan Muhammad
Through Mr.Nooruddin Mahessar, Advocate
State : Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 09.07.2018
Date of decision : 09.07.2018
J U D G M E N T
IRSHAD ALI SHAH. J- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 30.05.2018, of learned Judicial Magistrate, Miro Khan, whereby he has acquitted respondents Saadullah and Ali Asghar of the charge.
2. The facts in brief necessary for disposal of instant appeal are that; the respondents Saadullah and Ali Asghar with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, caused butt/lathi blows to PW Hubdar Ali in order to satisfy their dispute with them over the landed property and then went away by causing butt/lathi blows to complainant and his other witnesses besides insulting and threatening complainant party of murder, for that the present case was registered.
3. At trial, respondents Saadullah and Ali Asghar denied the charge and prosecution to prove it, examined PW-01 appellant/complainant, produced through him FIR of the present case, PW-02 Hubdar Ali, PW-03 Zulfiqar Ali, PW-04 mashir Ghulam Yasin, produced through him mashirnamas of place of incident, arrest of accused Saadullah and Asghar Ali, PW-05 Dr.Sheeraz Hyder, produced through him provisional and final medical certificates in respect of injuries sustained by injured Hubdar Ali, PW-06 SIO/ASI Faiz Muhammad, produced through “roznamcha” entries and then closed the side.
4. The respondents Saadullah and Ali Asghar in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading their innocence; they did not examine themselves on oath or any one in their defense.
5. On evaluation of evidence so produced by the prosecution, the learned trial Magistrate acquitted respondents Saadullah and Ali Asghar of the charge by way of judgment dated 30.05.2018, which the appellant has impugned before this Court, by way of instant Criminal Acquittal Appeal.
6. It is contended by learned counsel of the appellant that the learned trial Court has acquitted the respondents Saadullah and Ali Asghar without proper appreciation of the evidence. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing.
7. Learned A.P.G has supported the impugned judgment.
8. I have considered the above arguments and perused the record.
9. The FIR has been lodged with delay of about six hours without any plausible explanation; such delay could not be lost sight of. In FIR, the police determined the nature of injuries sustained by injured itself without waiting for the medical opinion, which appears to be significant, such interest on part of the police could not be lost sight of. It was stated by appellant/complainant and PWs Hubdar Ali and Zulfiqar Ali during course of their examination before learned trial Magistrate that after causing injuries to Hubdar Ali, accused went away after causing them butt/lathi injuries on different parts of their bodies. Nothing has been brought on record which may show that excepting injured Hubdar Ali anyone else from the appellant/complainant party sustained any type of injury during course of the incident. It was stated by PW/injured Hubdar that his injuries were examined by the police at Miro Khan Hospital and his 161 Cr.PC statement was also recorded by police at Miro Khan Hospital. PW/Mashir Ghulam Yasin has supported PW/injured Hubdar Ali so far as preparation of mashirnama of injuries by the police at Miro Khan Hospital is concerned. SIO/ASI Faiz Muhammad belied PW/injured Hubdar Ali and PW/Mashir Ghulam Yasin in that respect by stating that he prepared mashirnama of injuries of injured Hubdar Ali at P.S Miro Khan. Not only this, but according to him, 161 Cr.PC statement of PW/injured Hubdar Ali was also recorded by him at P.S Miro Khan. Such inconsistency could not be lost sight of. The parties admittedly are disputed over the possession of landed property; such dispute between them could not be lost sight of. In these circumstances, the learned trial Court was right to record acquittal of respondents Saadullah and Ali Asghar by extending them benefit of doubt by way of impugned judgment, which is not appearing to be arbitrary, which may call for any interference by this Court by way of instant Criminal Acquittal Appeal.
10. In case of State vs. Rasheed Ahmed (NLR 2004 Cr. 286), it was held that the judgment of acquittal which is neither arbitrary nor has caused miscarriage of justice would not warrant interference by the High Court.
11. In case of Muhammad Tassawur vs. Hafiz Zulqarnain and others (PLD 2009 SC-53), it was held that when an accused person who is acquitted of the charge by the Court of competent jurisdiction carries with him double presumption of innocence.
12. In view of above, the instant criminal acquittal appeal is dismissed in limine.
J U D G E