IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 53 of 2017

 

 

           

Appellant/Complainant :      Mst. Hakimzadi  Bhutto through

Mr. Mushtaque Ahmed Abbasi, Advocate

 

Respondent                    :       Abdul Qadir @ Safeer @ Sudheer,

And 11 others through Syed Abdul Latif Shah Jillani, Advocate.

 

The State, through  Syed Sardar Ali Shah

                                                Deputy Prosecution General

                                                           

                                                           

Date of hearing              :       11.02.2019          

Date of decision             :       11.02.2019                             

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 22.02.2017, passed by learned 2nd Additional Sessions Judge Ghotki, whereby the private respondents have been acquitted of the offence, for which they were charged. 

2.                 The facts in brief necessary for disposal of instant criminal acquittal appeal as per appellant/complainant are that the private respondents after having formed an unlawful assembly and in prosecution of their common object by making encroachment over landed property of appellant/complainant after keeping her fear of death, outraged her modesty by tearing her clothes, for that they were booked and reported upon by the police before Court of law for their trial in accordance with law.

3.                 At trial, the private respondents did not plead guilty to charge and the prosecution to prove it, examined PW-1 appellant/complainant as (Ex.16), she produced her application u/s 22-A ad 22-B Cr.P.C and order passed thereon , her statement and FIR of the present case, PW-2 Habibullah at (Ex.17); PW-3 mashir Nasrullah at (Ex.18), he produced memo of place of incident and memo of arrest of accused Abdul Qadir alias Safeer alias Sudheer and memo of recovery of torn clothes of appellant/complainant; PW-4 ASI/SIO Abdul Qadeer and then closed the side.

4.                 The private respondents during the course of their examination u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence by stating that they have been involved in this case falsely by the appellant/complainant in order to satisfy her dispute with them over landed property. They produced certain documents to prove their dispute with the appellant/complainant over landed property. They did not examine any one in their defence or themselves on oath.

5.                 On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the offence for which they were charged by way of impugned judgment, as stated above.

6.                 It is contended by learned counsel of the appellant/complainant that the prosecution has been able to prove its case against the private respondents beyond shadow of doubt by producing cogent evidence which has not been considered by learned trial Court without lawful justification. By contending so, he sought for adequate action against the private respondents.

7.                 Learned D.P.G for the State and learned counsel for the private respondents by supporting the impugned judgment have sought for dismissal of the instant criminal acquittal appeal.

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

9.                The FIR of the incident has been lodged with delay of about eight days, such delay could not be lost sight of. No independent witness to the incident has been cited by the appellant/complainant. Parties admittedly are disputed over landed property. In that context, learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt with the following observation;

“Admittedly, there is existing enmity over landed property between the parties. According to contents of FIR, the complainant has stated that survey Nos. 37 and 54 belonged to her, but in cross-examination she has belied her own version as allege in FIR, by admitting that the S.No.54 belonged to accused. However, according to Habibullah he denied suggestion that S.No.54 belonged to accused, but self added that it is their survey number. Moreover, complainant and eye witness in their cross-examination have clearly deposed that they cannot say which of the accused holding which weapon. They both also not deposed that who were driving the four tractors. In this case material point is that complainant Mst. Hakimzadi was allegedly striped her of  her clothes and exposed her modesty for public views. Perusal of FIR indicates seven accused namely Shabbir, Bashir, Shahan, Sadam, Abdul Qadeer, Irshad, Ubedullah alias Uban torn the shirt of complainant. Perusal of cross-examination of complainant it reveals that she has given five names of accused namely Shahan, Shabir, Ubedullah alias Uban, Qadeer and Irshad torn her clothes. However, PW Habibullah given seven names of culprits twho torn the clothes of her mother, namely accused Shahan, Shabbir, Ubedullah, Irshad, Bashir, Khaliqu and Qadeer. Moreover, perusal of FIR it revelas that only shirt was torn, in this chief examination she has deposed that shirt and shalwar were torn, whereas, PW Habibullah has not clearly deposed either shirt or shalwar but only deposed that clothes of her mother were torn. FIR has been lodged on Court directions with delay of about eight days; no explanation has been furnished by complainant or witness for such long delay.”

 

10.              In case of State & ors vs. Abdul Khaliq & ors (PLD 2011 SC-554), it has been held by the Hon’ble Apex Court that;

 

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption  of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence 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 judgments 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. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

 

   

 

11.              Nothing has been brought on record which may suggest that the impugned judgment having been passed in arbitrary or cursory manner which may justify making interference with it by this Court by way of instant criminal acquittal appeal. It is dismissed accordingly.

                                                                                                                                                                                 Judge

 

ARBROHI