IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-06 of 2017

Appellant/complainant : Dili Jan son of Shahdad Khan Bugti

Through Mr.Ahsan Ahmed Qureshi, Advocate

Respondents : The State through Mr.Raja Imtiaz Ali Solangi,

A.P.G and Private Respondents in person

Date of hearing : 20.07.2018

Date of decision : 20.07.2018

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant/complainant by way of instant acquittal appeal has impugned judgment dated 23.01.2017 of learned 5^th Judicial Magistrate, Larkana, whereby the private respondents were acquitted of the charge.

2. The facts in brief necessary for disposal of instant appeal are that; the private respondents while driving in their Car hit the same to motorcycle of appellant/complainant Dili Jan, whereby he and his witnesses Arbab Ali, Muhammad Sharif and Muhammad Hassan fell down on the ground, sustained injuries and then they were threatened by the private respondents to be killed in case they failed to settle with them the dispute over the landed property. The incident was reported by the appellant /complainant to the police and after usual investigation, the police recommended the case to be cancelled under “B” class, but such recommendation of the police was not accepted by the learned trial Magistrate, he taken the cognizance of the case and then put the private respondents on trial.

3. At trial, the private respondents denied the charge and prosecution to prove it examined PW-01 Dr.Ashok Kumar, produced through him provisional and final medical certificates in respect of injuries sustained by the appellant/complainant, PW-02 appellant/complainant Dili Jan, produced through him FIR of the present case, PW-03 Arbab Ali, PW-04 Muhammad Sharif, PW-05 SIO/ASI Zulfiqar Ali, produced through him mashirnama of injuries sustained by the appellant/complainant, mashirnama of place of incident and “roznamcha” entry whereby he left Police Station Waleed for investigation of the case, PW-06 ASI Muhammad Siddiq and PW-07 Mashir Khalid Hussain and then closed the side.

4. The private in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence; they did not examine themselves on oath or any one in their defense. They however, produced photo stat and certified copies of FIRs which were lodged against them by the appellant/complainant party prior to the FIR of the present case.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge way of judgment, which the appellant/complainant has impugned before this Court by way of instant criminal acquittal appeal, as stated above.

6. It is contended by learned counsel of the appellant/complainant that the prosecution was able to prove its case by producing cogent evidence, it was not considered properly and learned trial Magistrate has acquitted the private respondents of the charge without lawful justification. By contending so, he sought for conviction of the private respondents.

7. It is contended by private respondents in person that they have been involved in this case by the appellant/complainant falsely only to usurp their property which he has occupied illegally. By contending so, they sought for dismissal of the instant appeal.

8. Learned A.P.G has supported the impugned judgment.

9. I have considered the above arguments and perused the record.

10. The FIR of the incident has been lodged by the appellant/complainant with delay of about eight days to the incident without any cogent explanation; such delay in lodgment of the FIR could not be lost sight of simply for the reason that it is reflecting consultation. It was stated by the appellant/complainant and his witnesses as are named above that they were on their motorcycle, when it was hit by the Car which was being driven by the private respondents, resultantly they fell down on the ground and sustained injuries and the private respondents then went away by threatening them to be killed in case they failed to settle their dispute with them over the landed property. Such version of the appellant/complainant and his witnesses in face of it is appearing to be untrue and doubtful as four well-built persons could hardly ride on a single motorcycle. Be that as it may, as per appellant/complainant and his witnesses, they identified the private respondents under the light of their motorcycle. The identity of the private respondents at night time that too under the light of motorcycle is appearing to be weak piece of evidence. Even otherwise, no such motorcycle was produced by the appellant/complainant or his witnesses either before the police during course of investigation or before learned trial Magistrate at the time of trial which appears to be significant. It is indicative of the evidence of Dr.Ashok Kumar, that it was appellant/complainant alone who was found sustaining injuries. If it was so, then it falsifies the complainant/appellant that besides him, his witnesses after being hit by the Car they fell down on the ground and sustained injuries. PW/Mashir Khalid Hussain was not able to disclose the time of preparation of mashirnamas of injuries and incident. It was expected of unnatural witness. The very case as per SIO/ASI Zulfiqar Ali on investigation was found to be false and recommended to be cancelled under “B” class. In that situation, the learned trial Magistrate was right to record acquittal of the private respondents by extending them benefit of doubt by way of impugned judgment, which is not appearing to be arbitrary nor has caused any miscarriage of justice, to be interfered with by this Court by way of instant Criminal Acquittal Appeal.

11. 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.

12. 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 presumption of double innocence.

13. Above are the reasons of short order dated 20.07.2018, whereby the instant criminal acquittal appeal was dismissed.

J U D G E