IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 117 of 2018

Appellant/Complainant : Irshad Hussain Burdi through

Mr. Ali Sher Kandhro, Advocate

Respondent : Dadlo and others through

Mr. Shamsuddin Rajper, Advocate

Syed Sardar Ali Shah

Deputy Prosecution General

Date of hearing : 11.02.2109

Date of decision : 11.02.2019

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned order dated 13.08.2018, passed by learned Additional Sessions Judge Mirwah, whereby he has recorded acquittal of the private respondents in case outcome of FIR No.187/2017 u/s 365-B, 382 PPC of Police Station Faiz Ganj by way of an application u/s 265-K Cr.P.C.

2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondents as per appellant/complainant after committing trespass in his house not only committed theft of his belongings but abducted his paternal-niece Mst. Naziran aged about 16/17 years to subject her to rape and /or to get her marry against her wishes 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, Mst. Naziran alleged abductee put her appearance before learned trial Court and by way of filing an application stated that she has not been abducted by anyone but she has contracted marriage with Arif Ali. On the basis of such assertion of alleged abductee Mst. Naziran, learned trial Court recorded acquittal of the private respondents u/s 265-K Cr.P.C by way of impugned order by making following observation;

“Under these circumstances, since alleged abductee has contracted love marriage with applicant/accused Arif Ali and she has neither implicated any person including applicants/accused and has clearly stated that present case is false, concocted and managed one, therefore, in my humble opinion there is no need to frame charge against applicants/accused or even to proceed case against them or examine any witness, no fruitful result would be achieved as alleged victim has already exonerated applicants/accused from commission of present offence/crime, as such there will be wastage of precious time of the Court as there is no probability of the accused being convicted of any offence.”

4. It is contended by learned counsel of the appellant/complainant that learned trial court has recorded acquittal of the private respondents without providing chance to the prosecution to prove its case which is against the spirit of natural justice. By contending so, he sought for remand of the matter with direction to learned trial Court to proceed with the same afresh in accordance with law.

5. Learned D.P.G for the State and learned counsel for the private respondents by supporting the impugned order have sought for dismissal of the instant criminal acquittal appeal, as according to them the remand of the matter would serve no purpose.

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

7. There is no denial to the fact that the acquittal of the accused u/s 265-K Cr.P.C, could be recorded at any stage of the case. At any stage prima facie signifies a fact that it could be recorded even before framing of charge. In the instant matter, after registration of FIR, 161 Cr.P.C statement of Mst. Naziran was also recorded by police when she put her appearance before this Court in C.P No.D-2320/2018 whereby she sought for protection for herself and her husband Arif Ali from undue harassment allegedly at the hands of her parents. In her 161 Cr.P.C statement, Mst. Naziran did not support the contents of the FIR yet challan of the case was submitted by the police before the Court of law for trial of the private respondents. At trial, Mst. Naziran again put her appearance before learned trial Court and denied allegation of her abduction. In these circumstances, learned trial Court was right to record acquittal of the private respondents by way of impugned order by making a conclusion that there is no probability of their conviction.

8. 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”.

9. In view of the facts and reasons discussed above, it could be concluded safely that the impugned order is not calling for any interference by this Court by way of instant criminal acquittal appeal. It is dismissed accordingly.

Judge

ARBROHI