IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.D- 22 of 2010

Present:

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellant/Complainant : None present

Private Respondents : None present

The State, through Syed Sardar Ali Shah

Deputy Prosecution General

Date of hearing : 27.02.2019

Date of decision : 27.02.2019

JUDGMENT

Irshad Ali Shah, J- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 25.02.2010, passed by learned 3^rd Additional Sessions Judge Mirpur Mathelo, whereby the private respondents Shahban, Mushtaque Ahmed and Ali Gohar 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 said private respondents with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object by committing trespass into house of appellant/complainant committed death of his son Muhammad Shahban by causing fire shot injuries and then went away by making aerial firing to create harassment, for that they were booked and reported upon by the police.

3. At trial, the said private respondents did not plead guilty to charge and the prosecution to prove it, examined PW-1 appellant/complainant and his witnesses and then closed the side.

4. The said private respondents in their examination u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence. They did not examine themselves on oath but examined Shamsuddin, Muhammad Mithal and Luqman in their defence to prove their plea of alibi.

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

6. Since long none has come forward on behalf of appellant/complainant to pursue the instant Criminal Acquittal Appeal, which cannot be kept on file for indefinite period, therefore, it was decided to dispose of the same on merits with the help of learned DPG for the State.

7. Learned DPG for the State sought for dismissal of the instant appeal by supporting the impugned judgment.

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

9. As per evidence which is brought on record by the appellant/complainant through his witnesses, the specific role of committing Qatl-e-Amd of Muhammad Shahban by causing him fire shot injuries is attributed to absconding accused Naimatullah. The private respondents have been involved in the instant case by the appellant/complainant on point of vicarious liability by leveling allegation of aerial firing against them which is not proved beyond doubt. They even otherwise on investigation as per SIO/SIP Yahya Khan were also found to be innocent. In that situation, learned trial Court was right to record their acquittal by extending them benefit of doubt by making following observation;

“There is one another important aspect of the case which renders the availability of the present accused at the time of alleged incident very doubtful. In this respect I would like to highlight the evidence of P.W Moula Bux who acted as mashir of the place of incident (Ex.12/A) wherein it is specifically disclosed that there was only one empty cartridge lying at the place of incident which was secured by the police in his presence. If for the sake of arguments it is believed for a moment that the present accused either made aerial firing or they made fire shots at the complainant party, there should have been more than one empty cartridge at the place of incident but as I have just said that there was only one empty cartridge lying at the place of incident it was secured by the police, therefore, the presence of present accused at the time of alleged incident has become very doubtful.”

10. In case of State and others vs. Abdul Khaliq and others (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. For what has been discussed above, the instant Criminal Acquittal Appeal fails and it is dismissed accordingly.

Judge

ARBROHI