IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.D- 49 of 2009

Before:-

Mr.Justice Muhammad Iqbal Mahar

Mr.Justice Irshad Ali Shah

Appellant/Complainant : Muhammad Hamid through

Mr. Zulfiqar Ali Sangi, Advocate

Respondents : Asif and Waheed in person

The State through Mr. Aftab Ahmed Shar, Additional Prosecutor General

Date of hearing : 07.03.2019

Date of decision : 07.03.2019

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 09.09.2009, passed by learned V-Additional Sessions Judge, Sukkur, 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 are that the private respondents in furtherance of their common object, took deceased Majid Ali with them to have a Rickshaw for him and then committed his murder by pushing him into River Indus, for that they were booked and reported upon by the police before the 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 appellant/complainant and his witnesses and then closed the side.

4. The private respondents in their statements recorded u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence, they did not examine anyone in their defence or themselves on oath in disproof of the prosecution allegation.

5. On evaluation of evidence so brought on record, the learned trial Court acquitted the private respondents of the offence for which they were charged by 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 has been able to prove its case against the private respondents beyond shadow of doubt by producing cogent evidence which has been disbelieved by learned trial Court without lawful justification. By contending so, he sought for adequate punishment for the private respondents.

7. Learned Additional PG for the State by supporting the impugned judgment sought for dismissal of the instant Criminal Acquittal Appeal.

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

9. The evidence of the appellant/complainant is mainly to the extent that the deceased allegedly was taken away by the private respondents with them, in his presence which goes to suggest that he was not an eyewitness to the actual incident, the FIR of the incident has been lodged by him with delay of about thirteen days, such delay he has not been able to explain plausibly, which reflects consultation and deliberation, same as such could hardly be believed.

10. In case of Mehmood Ahmed and others vs. The State and others (1995 SCMR 127), it has been held by Hon’ble Apex Court that;

“that delay of two hours in lodgment of FIR in the particular circumstances of the case has assumed great significance as the same could be attributed to consultation, taking instruction and calculatedly preparing the report keeping the names of accused open for roping in such person whom ultimately the prosecution might wish to implicate.”

11. The involvement of the private respondents is based mainly on their extra‑judicial confession, which they allegedly made before P.Ws Muhammad Akhtar and Khalid. Extra judicial confession is appearing to be a weak piece of evidence, which could hardly be relied upon to base conviction. In these circumstances, learned trial Court was right to record acquittal of the private respondents by extending benefit of doubt by making the following observation;

“Perusal of record shows that at the time of incident age of the deceased was 19 years while at the time of incident the accused Asif and Waheed were aged about 15 years and it is hardly possible for such like boys to murder a boy of 19 years and to throw his dead body in the River. PW Muhammad Khalid was real brother of deceased Majid, he deposed that on the next morning he along with the complainant Muhammad Hamid and Akhtar Ali went to the house of accused Asif Ali who was not available at his house while his father met with them and told that the accused Asif Ali was available in the house for the whole night. He further deposed that again on the next day they went to the house of accused Asif who met with them and told that he would provide the rickshaw to deceased Majid Ali. He deposed that he went in search of deceased Majid Ali but thee could not traced him therefore they went to the Police Station and lodged the report. He fully eliminated any extra judicial confession allegedly made by accused Asif in his presence. In the circumstance I am of the view that the evidence of the prosecution witnesses on the issue of extra judicial confession made by accused Asif is inconsistent and does not inspire confidence.”

12. 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”.

13. Nothing has been brought on record which may suggest that the impugned judgment is arbitrary or cursory to be interfered with by way of instant Criminal Acquittal Appeal, it is dismissed accordingly.

Judge

Judge

ARBROHI