IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 05 of 2012

Appellant/Complainant : Haji Ghulam Rasool Bhayo, through

Mr. Khan Muhammad Sangi, Advocate

Respondents : Muhammad Sabir, Ali Nawaz, Mumtaz

Ahmed, Bashir Ahmed, Ghulam Shabbir

And Zubair Ahmed through Mr. Achar

Khan Gabole, 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 cut down and stolen away 140 trees of complainant Haji Ghulam Rasool after keeping him under fear of death, for that they were booked and reported upon by the police.

2. After due trial, the private respondents were acquitted of the offence for which they were charged by learned 1^st Civil Judge and Judicial Magistrate Pano Akil vide judgment dated 23.01.2012 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 and/ or remand of the matter for retrial of the case.

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 appellant/complainant in order to satisfy his dispute with the private respondents over landed property have involved them in a false case.

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

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

“According to FIR when the complainant and P.Ws arrived at the place of vardaht they seen some of the cut trees were already loaded in the trolley and remaining trees they were loading, whereas complainant in his cross deposed otherwise that he seen accused while cutting trees with his eyes which is against the version of his examination-in-chief in which he deposed that all the accused cut out “Talhi” trees and placed in trolley. P.W Shamsuddin also to this aspect of the matter deposed otherwise than the version of FIR that accused Sabir and otherwise were cutting trees from their lands, whereas P.W Gul Hassan examined as Ex.12, who according to complainant was with them in his examination-in-chief deposed specifically that accused Sabir was armed with gun but he was not cutting trees. Complainant and P.W Shamsuddin and so also Gul Hassan are silent in their evidence as to number of trees cut out. However, mashir of place of vardat examined as Ex.11 deposed in his cross that about 140 trees were cut out counted by investigation officer. P.W Shamsuddin shows that cut out trees were of different measurement and their width was of about 2 to 3 feet and for a while if this is assumed to be true then it goes out of imagination that 140 trees of 2 to 3 feets width each were cut within 45 minutes as per P.W Gul Hassan that he seen the accused committing the offence at about 7:15 p.m and according to cross of the complainant that accused remained present at the place of incident upto 8:00 p.m. Yet it again goes out of imagination that this large number of trees viz. 140 were loaded in one trolley. Yet investigation officer examined as Ex.13 deposed otherwise, as to width of trees 2 to 3 feets each as he in his cross deposed that at the place of incident fresh growing plants were seen by him being cut out. Investigation Officer further deposed that foot prints of persons and signs tyres and tractor were not visible at the place of incident. Investigation Officer further deposed that he did not enquire regarding the incident from the persons whose lands were situated adjacent to the place of occurrence. According ot P.W Gul Hassan Shamsuddin received his telephone call when he informed them about the occurrence, whereas P.W Shamsuddin deposes otherwise that telephone call was not received by him. According to mashir of vardat P.W Muhammad Ayoub examined at Ex.11 on 09.2.2010 he along with complainant went at police station Baiji Sharif wherefrom they went to visit the place of varat, where investigation officer case examined at Ex.13 deposed that he contacted the complainant for visiting the alleged place of incident who informed him that he is already standing there. Yet the investigation officer failed to produce on record the roznamcha register entry by which he visited the place of vardat nor shown the same in his examination-in-chief so that his contention could be shown. Further neither the FIR nor any of the P.W shows registration number of the Tractor. It is well settled principle of law that non-prosecution of such vital documents by the police shall tend to show that investigation officer did not visit the place of vardat and did anything t police station. Apart from the above material discrepancies which have entirely ruined the prosecution case, there are so many other contradictions in the evidence of the prosecution witnesses which in view of the above discussion are unnecessary to be discussed. In view of the above minute discussion, I have no cavil to observe that the prosecution has failed to prove its case against the accused beyond any reasonable shadow of doubt.”

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 & 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”.

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