IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 62 of 2010

Appellant/Complainant : Talib Hussain Kalhoro, through

Mr. Dareshani Ali Hyder ‘Ada’, Advocate

Respondents : Ghulam Yaseen, Ajmal and Asghar,

Through Mr. Ali Raza Kalwar Kalwar,

Advocate

The State, through Syed Sardar Ali Shah

Deputy Prosecution General

Date of hearing : 25.03.2019

Date of decision : 25.03.2019

JUDGMENT

IRSHAD ALI SHAH, J.- 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 and in prosecution of their common object caused him hatchet and lathi blows with intention to commit his murder for that the present case was registered and on due investigation the private respondents were challaned by the police to face trial for the above said offence.

2. After full dressed trial, the private respondents were acquitted of the offence for which they were charged by learned Assistant Sessions Judge Mirpur Mathelo vide judgment dated 26.06.2010 which the appellant/complainant has impugned before this Court by way of instant Criminal Acquittal Appeal.

3. It is contended by learned counsel of the appellant/complainant that the learned trial Court has acquitted the private respondents of the charge without lawful justification on the basis of improper appraisal of evidence. By contending so, he sought for adequate action against the private respondents.

4. 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 by contending that private respondents Ahmed and Qadir Bux who have actively participated in commission of incident have already died.

5. Learned counsel for the appellant/complainant was fair enough to concede that private respondents Ahmed and Qadir Bux who have actively participated in commission of the incident have died by conceding so, he loses his grip over the matter.

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

7. The FIR of the incident has been lodged with three days delay, such delay could not be lost sight of; parties are already disputed over landed property. In these circumstances, learned trial Court was right to record acquittal of the private respondents by making following observation;

“there are material contradiction in ocular evidence, the medical evidence is not corroborated with ocular evidence, all the 03 P.Ws are related inter se, there appears no quality of evidence on ocular side, the enmity between the parties over land property is admitted and the parties are facing litigation at different rums, the farmer Nihal who cultivated the land of the complainant Talib Hussain is either shown as witness in this case nor he is examined, at the time of visiting wardat the land was ploughed and leveled to some extent and there was no harvested wheat crop in the land for which the injured complainant Talib Hussain, PW Ghulam Rasool and PW Mehboob were consulting collection of the same as has come in the evidence, there is no independent evidence, the alleged blood stained earth and blood stained hatch not sent to the chemical examiner for his expert opinion and very surprisingly the recovery of hatches on pointatoin of accused Qadir Bux is deposed by the PW-4 investigating officer SIP Abdul Khaliq at Ex.17 in his evidence.”

8. In that situation, learned trial Court was right to record acquittal of the private respondents by extending benefit of doubt to them.

9. 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”.

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

Judge

ARBROHI